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CASE NO.: Appeal (civil)  2424 of 2007

PETITIONER: Additional General Manager/Human Resource Bharat Heavy Electricals Ltd

RESPONDENT: Suresh Ramkrishna Burde

DATE OF JUDGMENT: 10/05/2007

BENCH: G.P. Mathur & R.V. Raveendran

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.       2424           OF 2007 (@ Special Leave Petition (Civil) No. 19889 of 2004)

G.P. Mathur, J.

       Leave granted. 2.      This appeal, by special leave, has been preferred against the  judgment and order dated 4.8.2004 of a Division Bench of Bombay  High Court (Nagpur Bench) by which the writ petition filed by the  respondent Suresh Ramkrishna Burde was disposed of with a  direction to reinstate him in service and further that in future he shall  not take any benefit as belonging to reserved category of Scheduled  Tribe. 3.      The respondent herein, Suresh Ramkrishna Burde, claiming  himself to be belonging to Halba Scheduled Tribe and after submitting  a certificate to the said effect, got an appointment in the Bharat Heavy  Electricals Ltd., Hyderabad, as Clerk on 31.5.1982 on a post which  was reserved for a person belonging to Scheduled Tribe.  He was  promoted as Assistate Grade II on 27.6.1987 and then as Assistant  Grade I on 25.6.1994.  The Scheduled Tribes Employees Association  (Regd. No. 290 BHEL), Hyderabad, made a complaint that the  respondent and several others had produced false caste certificates and  had thereby got appointment on vacancies which were reserved for  members of Scheduled Tribes.  The caste certificate produced by the  respondent was referred for verification to District Collector, Nagpur,  on 30.3.1991 and also to the Chairman, Scheduled Tribe Caste  Certificate Scrutiny Committee (for short ’the Scrutiny Committee’).   The Scrutiny Committee vide order 30.8.1995 held that the caste  certificate produced by the respondent was false and the same was  invalidated.  The respondent challenged the said order by filing writ  petition No. 3229 of 1995 before the Nagpur Bench of Bombay High  Court, which was allowed and the matter was remanded back to the  Scrutiny Committee for a fresh consideration in accordance with law.   The Scrutiny Committee again examined the matter in accordance  with the direction of the High Court and also got an enquiry  conducted through its Police Vigilance Cell.  The enquiry committee  took into consideration the primary school record of the respondent  and also extracts of the admission register of the school where the  respondent’s real paternal cousin had his primary education in the  year 1945 onwards.  The Scrutiny Committee vide its report dated  29.8.2001 found that the respondent belonged to ’Koshti’ caste and he  did not belong to Halba Scheduled Tribe.  This order was again  challenged by the respondent by filing writ petition No. 3628 of 2001  before the Nagpur Bench of Bombay High Court wherein an interim  stay was granted in favour of the respondent on 1.11.2001.  The writ

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petition was finally disposed of on 17.2.2004 and the relevant portion  of the order is being reproduced below: -         "Learned counsel for the petitioner seeks  permission to withdraw the present Writ Petition with a  liberty to approach the employer of the petitioner by  making a representation in view of the observations of  the Apex Court in Milind Katware’s case reported in  2001 (1) Mh.L.J. as well as in view of the Govt.  Resolutions dated 15th June, 1995 and 15th March, 2000,  and further prays that a direction be given to the  respondent no. 4 \026 employer of the petitioner, to decide  the representation of the petitioner on its own merits  within the stipulated period.         Permission is granted.  Writ Petition is dismissed  as withdrawn.         Respondent No. 4 is directed to decide the  representation of the petitioner according to the law  within a period of six weeks from the date of the receipt  of such representation."

Thereafter, the respondent made a representation dated 12.3.2004 to  the appellant herein (employer) wherein he prayed that in view of  decision of the Supreme Court in State of Maharashtra vs. Milind and  others (2001) 1 SCC 4, his services may be protected.  This  representation was considered by the appellant and was rejected.  The  services of the respondent were terminated vide order dated  16.7.2004.  Feeling aggrieved by the said order the respondent then  filed writ petition No. 3142 of 2004 before the Nagpur Bench of  Bombay High Court, which, after accepting his undertaking that in  future he will not take any advantage of being a member of Scheduled  Tribe, was disposed of with a direction that he shall be reinstated in  service.  The order passed by the High Court is a brief one and  relevant part thereof is reproduced below: -         "It may be noted here that the judgment of the  Supreme Court in State of Maharashtra v. Milind  Katware (Mh L.J. 2001 (1) page-1) is not only the  judgment pertaining to that case but it is also a settled  law.  In fact, the Honourable Supreme Court has accepted  the same to be the settled law in various judgments  rendered thereafter.         In accordance with the said judgment of Milind  Katware the petitioner has already filed an undertaking  that he will not take any benefit of Halba Scheduled  Tribe in future.         The learned counsel for the petitioner, on behalf of  the petitioner, undertakes that, neither the petitioner nor  his family members will ever claim any benefit as  belonging to Halba Scheduled Tribe.  The said  undertaking is accepted.  The learned counsel for the  petitioner also states that the petitioner will abide by the  order of Scrutiny Committee, referred in the order dated  16th July, 2004, especially when the undertaking is  accepted.         Under the circumstances, we direct the respondent  to reinstate the petitioner, as his services were terminated  only on the limited ground.  We make it clear that the  respondent shall not terminate services of the petitioner  only on the ground that he does not belong to Halba  (Scheduled Tribe).  The respondent shall treat the  petitioner to be belonging to open category.         The writ petition stands disposed of in the above  terms."

4.      Shri L.N. Rao, learned senior counsel for the appellant, has  submitted that the respondent had secured appointment by producing

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a false caste certificate which showed him to be belonging to Halba  Scheduled Tribe when in fact he was not a member of Scheduled  Tribe at all and thus he secured appointment on a post which was  reserved for a person belonging to the said caste.  Learned counsel has  submitted that fraud vitiates most solemn transaction and as the  respondent had got appointment by fraudulent means, his services  were rightly terminated and the High Court has erred in directing his  reinstatement after relying upon the decision in the case of Milind  though no such principle had been laid down in the said case. 5.      Learned counsel for the respondent has supported the judgment  of the High Court and has submitted that the respondent had given an  undertaking that neither he nor his family members will ever take any  benefit as belonging to Halba Scheduled Tribe and in view of the said  undertaking the High Court was perfectly right in protecting his  services and directing his reinstatement.  Learned counsel has also  submitted that the judgment of the High Court is in accordance with  the Constitution Bench decision of this Court in State of Maharastra  vs. Milind (supra) and, therefore, there is no ground on which this  Court may interfere with the order passed by the High Court. 6.      There is no dispute on facts.  After receiving complaints about  the caste certificate produced by the respondent the appellant referred  the matter for verification to the District Collector, Nagpur on  30.3.1991 and also to the Scrutiny Committee.  The Scrutiny  Committee, after thorough verification, passed order on 30.8.1995 that  the respondent did not belong to the Scheduled Tribe and the caste  certificate submitted by him was false.  This order was challenged by  the respondent and the High Court in writ petition No. 3229 of 1995  remanded the matter back to the Scrutiny Committee for fresh  consideration.  The Scrutiny Committee again conducted the enquiry  through its Police Vigilance Cell associated with the research officer  and after thorough examination of the entire material again passed an  order on 29.8.2001 that the caste of the respondent was ’Koshti’ and  he did not belong to Scheduled Tribe.  This order was again  challenged by the respondent by filing writ petition No. 3628 of 2001.   However, at the time of hearing of the writ petition the petitioner  sought leave of the court to withdraw the writ petition with liberty to  approach the employer by making a representation.  The writ petition  was accordingly dismissed as withdrawn on 17.2.2004.  The effect of  the order passed by the High Court is that the order dated 29.8.2001 of  the Scrutiny Committee, by which it was held that the respondent  belonged to ’Koshti’ caste and he is not a member of Scheduled Tribe,  attained finality.  Therefore, there is no escape from the conclusion  that the respondent secured the appointment on a post which was  reserved for Scheduled Tribe by producing a false caste certificate. 7.      The High Court has granted relief to the respondent and has  directed his reinstatement only on the basis of the Constitution Bench  decision of this Court in State of Maharashtra vs. Milind (2001) 1  SCC 4.  In our opinion the said judgment does not lay down any such  principle of law that where a person secures an appointment by  producing a false caste certificate, his services can be protected and an  order of reinstatement can be passed if he gives an undertaking that in  future he and his family members shall not take any advantage of  being member of a caste which is in reserved category.  The questions  which required for consideration by the Constitution Bench, are noted  in the very first paragraph of the judgment and they are being  reproduced below: - "1)     Whether at all, it is permissible to hold enquiry and  let in evidence to decide or declare that any tribe or  tribal community or part of or group within any  tribe or tribal community is included in the general  name even though it is not specifically mentioned  in the concerned Entry in the Constitution  (Scheduled Tribes) Order, 1950? 2)      Whether ’Halba Koshti’ caste is a sub-tribe within  the meaning of Entry 19 (Halba/Halbi) of the said

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Scheduled Tribes Order relating to State of  Maharashtra, even though it is not specifically  mentioned as such?"

After thorough discussion of the matter the conclusions of the Bench  are recorded in paragraph 36 of the report.  It was held that it is not at  all permissible to hold any enquiry or let in any evidence to decide or  declare that any tribe or tribal community or part of or group within  any tribe or tribal community is included in the general name even  though it is not specifically mentioned in the concerned Entry in the  Constitution (Scheduled Tribes) Order, 1950.  It was further held that  the notification issued under clause (1) of Article 342, specifying  Scheduled Tribes, can be amended only by law to be made by  Parliament and it is not open to the State Governments or courts or  any other authority to modify, amend or alter the list of Scheduled  Tribes specified in the notification issued under clause (1) of Article  342 and the Constitution (Scheduled Tribes) Order 1950.  The law  declared by the Constitution Bench does not at all lay down that  where a person secures an appointment by producing a false caste  certificate, his services can be protected on his giving an undertaking  that in future he will not take any advantage of being a member of the  reserved category. 8.      After interpreting the relevant constitutional or statutory  provisions and laying down the law, it is always open to a court to  mould the relief which may appear to be just and proper in the facts  and circumstances of the case.  Some times equitable considerations  also come into play while granting a relief.  Milind had got admission  in a medical course in the year 1985-86 by producing a caste  certificate that he belonged to Halba Caste, which was later on  invalidated by the Scrutiny Committee.  That order was challenged by  him by filing a writ petition which was allowed by the High Court.   The appeal filed by the State of Maharashtra was allowed by the  Constitution Bench of this Court on 28.11.2000, i.e., almost 15 years  after he had got admission in the course.  By that time Milind had  already completed his MBBS course and was practising as a doctor.   This Court took notice of the fact that a huge amount of public money  is spent on every student studying in the medical course and a  qualified doctor on whom public money had been spent does service  to the society.  The Court, therefore, observed "in these  circumstances, this judgment shall not affect the degree obtained by  him and his practicing as a doctor".  However, it was made clear that  he cannot take any advantage as being a member of Scheduled Tribe  for any other purpose. 9.      An identical controversy was again examined in R.  Vishwanatha Pillai vs. State of Kerala (2004) 2 SCC 105, which is a  decision rendered by a Bench of three learned Judges.  The employee  in the aforesaid case had got an appointment in the year 1973 against  a post reserved for Scheduled Caste.  On complaint, the matter was  enquired into and the Scrutiny Committee vide its order dated  18.11.1995 held that he did not belong to Scheduled Caste and the  challenge raised to the said order was rejected by the High Court and  the special leave petition filed against the said order was also  dismissed by this Court.  He then filed a petition before the  Administrative Tribunal praying for a direction not to terminate his  services which was allowed, but the order was reversed by the High  Court in a writ petition.  The employee then filed an appeal in this  Court.  After a detailed consideration of the matter this Court  dismissed the appeal and para 15 of the report, which is relevant for  the decision of the present case, is reproduced below: -         "15. This apart, the appellant obtained the  appointment in the service on the basis that he belonged  to a Scheduled Caste community. When it was found by  the Scrutiny Committee that he did not belong to the  Scheduled Caste community, then the very basis of his  appointment was taken away. His appointment was no

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appointment in the eyes of law. He cannot claim a right  to the post as he had usurped the post meant for a  reserved candidate by playing a fraud and producing a  false caste certificate. Unless the appellant can lay a  claim to the post on the basis of his appointment he  cannot claim the constitutional guarantee given under the  Article 311 of the Constitution. As he had obtained the  appointment on the basis of a false caste certificate he  cannot be considered to be a person who holds a post  within the meaning of Article 311 of the Constitution of  India, Finding recorded by the Scrutiny Committee that  the appellant got the appointment on the basis of false  caste certificate has become final. The position,  therefore, is that the appellant has usurped the post which  should have gone to a member of the Scheduled Caste. In  view of the finding recorded by the Scrutiny Committee  and upheld upto this Court he has disqualified himself to  hold the post. Appointment was void from its  inception.............................."

10.     In Bank of India vs. Avinash D. Mandivikar (2005) 7 SCC 690,  the employee had got an appointment on 15.10.1976 on a post which  was reserved for a member of Scheduled Tribe.  The Scrutiny  Committee invalidated the caste certificate on 18.7.1987 which was  challenged by the employee.  After several rounds of litigation his  services were terminated on 28.2.2002.  After referring to the decision  in the case of Milind and some other decisions, this Court allowed the  appeal of the employer affirming the order of termination of service of  the employee.  Paragraph 6 of the report where the principle was laid  down reads as under: - "6.     Respondent No. 1-employee obtained appointment  in the service on the basis that he belonged to Scheduled  Tribe. When the clear finding of the Scrutiny Committee  is that he did not belong to Scheduled Tribe, the very  foundation of his appointment collapses and his  appointment is no appointment in the eyes of law. There  is absolutely no justification for his claim in respect of  post he usurped, as the same was meant for reserved  candidate."

10.     In R. Vishwanatha Pillai vs. State of Kerala (2004) 2 SCC 105,  which we have referred to earlier, the case of the employee’s son, who  got admission in an engineering college against a seat reserved for  Scheduled Caste, was also considered.  The admission in the  engineering college was obtained in 1992 and he completed the course  in 1996 though under the interim order of the High Court.  The appeal  was decided by this Court on 7.1.2004.  Placing reliance upon  paragraph 38 of the judgment in the case of Milind (supra), this Court  observed that no purpose would be served in withholding the  declaration of the result on the basis of examination already taken by  the student or depriving him of the degree in case he passes the  examination.  It was accordingly directed that the student’s result be  declared and he be allowed to take his degree with the condition that  he will not be treated as Scheduled Caste candidate in future either in  obtaining service or for any other benefits flowing from the caste  certificate obtained by him and he shall be treated to be a person  belonging to general category. 11.     The principle, which seems to have been followed by this Court  is, that, where a person secures an appointment on the basis of a false  caste certificate, he cannot be allowed to retain the benefit of the  wrong committed by him and his services are liable to be terminated.   However, where a person has got admission in a professional course  like engineering or MBBS and has successfully completed the course  after studying for the prescribed period and has passed the  examination, his case may, on special facts, be considered on a

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different footing.  Normally, huge amount of public money is spent in  imparting education in a professional college and the student also  acquires the necessary skill in the subjects which he has studied.  The  skill acquired by him can be gainfully utilized by the society.  In such  cases the professional degree obtained by the student may be  protected though he may have got admission by producing a false  caste certificate.  Here again no hard and fast rule can be laid down.   If the falsehood of the caste certificate submitted by the student is  detected within a short period of his getting admission in the  professional course, his admission would be liable to be cancelled.   However, where he has completed the course and has passed all the  examinations and acquired the degree, his case may be treated on a  different footing.  In such cases only a limited relief of protection of  his professional degree may be granted. 12.     In the case in hand the respondent got appointment on  31.5.1982 on a post, which was reserved for a member of Scheduled  Tribe.  On receiving complaints the employer referred the matter to  the District Collector, Nagpur and also to Scrutiny Committee in  March, 1991.  The subsequent period has been spent in making  enquiry and in litigation as the respondent filed three writ petitions.   In view of the principle laid down by this Court we are clearly of the  opinion that his services were rightly terminated by the appellant and  the High Court was in error in directing his reinstatement.  The order  passed by the High Court, therefore, has to be set aside. 13.     Before parting with the case we would like to observe that the  order invalidating the caste certificate had been passed by the Scrutiny  Committee at Nagpur and, therefore, the earlier two writ petitions  filed by the respondent were maintainable before the Nagpur Bench of  Bombay High Court.  However, in the third and final writ petition the  order under challenge was the order of termination of service which  was passed by the appellant on 16.7.2004 at Hyderabad as the  respondent was working with the Bharat Heavy Electrical Ltd.’s  Heavy Power Equipment Plant, Hyderabad.  Therefore, the Nagpur  Bench of Bombay High Court had no jurisdiction to entertain the writ  petition wherein challenge was raised to the said order.  However, in  order to cut short the litigation and settle the controversy we have  decided the case on merits. 14.     Learned counsel for the respondent also sought to take some  benefit of a certain Government Order dated 15.6.1995 issued by the  State of Maharashtra wherein some reservation in service is provided  to members of special backward class.  In our opinion the respondent  can get no benefit from the same as he is not an employee of  Government of Maharahstra but is an employee of a public sector  undertaking of Central Government and he secured the appointment  long before on 31.5.1982.   15.     For the reasons discussed above the appeal is allowed.  The  judgment and order dated 4.8.2004 of the Bombay High Court  (Nagpur Bench), which is under challenge in the present appeal, is set  aside.  The writ petition filed by the respondent is dismissed. 16.     No order as to costs.