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CASE NO.: Appeal (civil)  1547 of 2007

PETITIONER: Punjab National Bank & Anr

RESPONDENT: Vilas, S/o Govindrao Bokade & Anr

DATE OF JUDGMENT: 22/03/2007

BENCH: V.S. Sirpurkar

JUDGMENT: JUDGMENT O R D E R (Arising out of SLP (C) No.15544 of 2005) WITH

CIVIL APPEAL NO.1548 OF 2007 (Arising out of SLP (C) No.15534 of 2005)

Punjab National Bank                                    \005. Appellant

       Versus

Ku. Nirmala D/o Balaji Patansaongkar            \005. Respondent

1.      I have had the benefit of seeing the order passed by Justice H.K.  Sema directing the dismissal of the appeals filed by the Punjab National  Bank.  I would chose to give my reasons while agreeing with my learned  Brother that the appeals deserve to be dismissed.  The followings are my  reasons: 2.      The High Court after referring to the Government Resolution dated  30.6.2004 and relying on the reported decision of this Court in State of  Mahrashtra vs. Milind & others [(2001) 1 SCC 4], allowed the writ petition  setting aside the order of termination.  The Resolution dated 30.6.2004  emanates from the Government Resolution dated 15.6.1995. The  corresponding para 4 of the Resolution dated 15.6.1995 reads as under: "4.     The reservation given to the abovementioned ’Special  backward Category’  will remain as a backlog for direct service  recruitment and promotion.  The principle of crimilayer will not  apply to this category.  The persons in the category who have  prior to this on the basis of scheduled tribe certificate obtained  admission in the government, semi government services on  promotion they should not be removed from this promotion or  service."

Corresponding paragraph 4 of the Government Resolution dated  15.6.1995 was reiterated in paragraph (a) of the Government Resolution  dated 30.6.2004 which reads as under: "(a)    The non tribal who have received recruitment promotion  in the government/semi governmental services on the  reserved seats for the scheduled tribes prior to 15th June,  1995, should not be removed from service or should not be  demoted.  They should be shown in the constituent to which  they belong.  Henceforth the reservation benefits entitled to  that particular constituent will be due to them and the vacated  posts in this manner should be filled from the tribal category."

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3.      Shri Mehta, learned counsel for the appellant Bank contended firstly  that the High Court was not right in relying upon the decision in Milind’s  case (supra).  For this he relied on the judgment in State of Maharashtra &  Ors. Vs. Sanjay K. Nimje [2007 (2) Scale 214] where this Court also made  a reference to the Government Resolution dated 15.6.1995 in paragraph  13 of the judgment and held that since the respondent therein was  appointed on 29.6.1995, the protection of Government Resolution dated  15.6.1995 was not available in his case.  Shri Mehta also pointed out that  in the latter part of the judgment this Court made a reference to the  enactment called Maharashtra Scheduled Castes, Scheduled Tribes, De- notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes  and Special Backward Caegory (Regulation of Issuance and Verification  of) Caste Certificate Act, 2000 and went on to hold that since the petitioner  therein was not protected by the Government Resolution dated 15.6.1995,  he would be covered under the said enactment and more particularly  under Section 10 thereof which provided that the benefits secured on the  basis of false caste certificate would be withdrawn and such person cannot  continue to reap the benefits on the basis of the caste certificate which was  found to be incorrect.  Shri Mehta  referred to paras 13, 14 and 17 of that  judgment and urged that the situation was no different in this case.  He  further pointed out that the Division Bench had referred to Milind’s case  (supra) and had observed in para 21: "It may be true that an authoritative pronouncement in this  behalf came for the first time in Milind’s case (supra) but it is  not a case where the respondent pleaded and proved bona  fide".

Mr.Mehta, therefore, firstly urged that the High Court could not have  applied the law laid down in Milind’s case.  He also urged that the said  Resolution dated 15.6.1995 would not be applicable to the Central  Government Employees and the banks.  He urged that the respondent  herein, being a bank employee, was not entitled to the benefit of the  Resolution.  Therefore, Shri Mehta contends that firstly the respondent  cannot get the benefit of Milind’s case and secondly he cannot get the  protection of the Government Resolution dated 15.6.1995 particularly  because of the subsequent Act passed by the State of Maharashtra which  is directly relied upon by the Division Bench. 4.      In my opinion firstly, the decision in Sanjay K. Nimje’s case (supra)  would not apply to the present case.  There it was found by the Division  Bench that Sanjay Nimje was admittedly appointed on 29.6.1995 while the  said Government Resolution provided the protection only to those who  were appointed upto 15.6.1995 and hence the respondent stood ousted by  Section 10 of the Act.  Here the admitted case is that the present  respondent has been appointed in the year 1989, much prior to the said  date of 15.6.1995.  In that view the observations in paras 13 and 14 in  Sanjay Nimje’s case would not be applicable to the present respondent  and, therefore, there will be no question of testing as to whether the  protection of the Government Resolution dated 15.6.1995 will be available  to the petitioner or not.   5.      It is not necessary for us to consider the question as to whether  protection provided in the Government Resolution dated 15.6.1995 is  applicable to a bank employee like the respondent since the protection is  provided in Milind’s case in no uncertain terms.  This court has very  specifically observed at the end of para 38 as under: "Having regard to the passage of time, in the given  circumstances, including interim orders passed by this Court  in SLP (C) No.16372 of 1985 and other related affairs, we  make it clear that the admissions and appointments that have  become final, shall remain unaffected by this judgment"

(This was of course after discussing the factual situation in that case and  particularly noting the prejudice that could be caused to the respondent

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Milind in view of the period of 15 years spent in finalizing the issue of his  caste status). 6.      It will be seen in this judgment that this Court came to the conclusion  that Koshtis cannot claim the status of the scheduled tribe.  The Supreme  Court there was considering the specific question as to whether Halba- Kosthis caste is a Scheduled Tribe within the meaning of Entry 19  (Halba/Halbi) of the Scheduled Tribe order, 1950 related to State of  Maharashtra even though it was not specifically mentioned as such. 7.      After referring to the 1950 order and after considering number of  decisions on the question ultimately court came to the conclusion that such  status of Scheduled Tribe could not be conferred on those who were  belonging to Halba-Koshti caste.  The decision in that behalf rendered by  the Division Bench of the Bombay High Court was set aside.  However,  considering the circumstances that respondent who had become a doctor  about 15 years back would be losing his status, the Supreme Court made  the aforementioned observation.  Therefore, it was tried to be suggested  before us that the observations were applicable to that particular case and  the facts therein.  Ordinarily we would have been persuaded to accept the  argument.  However, fortunately for respondent this observation was later  on relied upon by this Court in another decision in Civil Appeal No.3375 of  2000 (arising out of SLP (C) No.6524 of 1988) decided on 12.12.2000  wherein this Court observed" "The appellant having belonged to Koshti caste claimed to be  included in the Scheduled tribe of Halba and obtained an  appointment as Assistant Engineer.  When his appointment  was sought to be terminated on the basis that he did not  belong to scheduled tribe by the Government a writ petition  was filed before the High Court challenging that order which  was allowed.  That order is questioned in this appeal.  The  questions arising in this case are covered by the decision in  State of Maharashtra vs. Milind & Ors. 2000 (7) Scale 628 and  was got to be allowed, however, the benefits derived till now  shall be available to the appellant to the effect that his  appointment as Assistant Engineer shall stand protected but  no further.  The appeal is disposed of accordingly."

8.      The situation is no different in case of the present respondent.  He  also came to be appointed and/or promoted way back in the year 1989 on  the basis of his caste certificate which declared him to be Scheduled Tribe.   Ultimately it was found that since a "Koshti" does not get the status of a  Scheduled Tribe, the Caste Scrutiny Committee invalided the said  certificate holding that respondent was a Koshti and not a Halba.  I must  hasten to add that there is no finding in the order of caste scrutiny  committee that the petitioner lacked in bona fides in getting the certificate.   I say that to overcome the observations in para 21 in Sanjay Nimje’s case.   "But it is not a case where the respondent pleaded and proved bona fide.  9.      Under such circumstances the High Court was fully justified in  relying on the observations made in Milind’s case.  The High Court has not  referred to the judgment and order in Civil Appeal No.3375 of 2000  decided on 12.12.2000 to which a reference has been made above.   However, it is clear that the High Court was right in holding that the  observations in Milind’s case apply to the case of the present respondent  and he stands protected thereby. 10.     If the respondent even otherwise stands protected by Milind’s  judgment as also the judgment in Civil Appeal No.3375 of 2000 decided on  12.12.2000, then it would be unnecessary to decide as to whether the  Government Resolution dated 15.6.1995 provides protection to the  petitioner or not.  The respondent therefore, ought to get the limited  protection in terms of the judgment in CA 3375 of 2000 and no further. 11.     I am in respectful agreement with my Brother in respect of para 17 in  Sanjay K. Nimje’s case wherein the contention in those paras which were  relied upon by Shri Mehta are held to be obiter.   12.     In that view I, for the above reasons, agree with my learned Brother  Sema, J. that the appeals filed by the Punjab National Bank deserve to be  dismissed.