REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.      4330      OF 2008 [Arising out of S.L.P.(C) No.7306 of 2007]

STATE OF MAHARASHTRA & ORS.

— APPELLANT (S)  

VERSUS

RESHMA RAMESH MEHER & ANR.

— RESPONDENT (S)

J U D G M E N T

D.K. JAIN, J.:

Leave granted.  

2. The State of Maharashtra, appellant No.1 herein and

its  functionaries,  namely,  the  Secretary  to  the

Government  of  Maharashtra,  Social  Welfare

Department;  Divisional  Commissioner,  Konkan

Division and Executive Magistrate, Teh. Vasai, District

Thane,  appellants  No.2,  3  and 4 respectively  call  in

question the legality of the judgment dated 22nd June,

2006,  rendered  by  the  High  Court  of  Judicature  at

Bombay in  W.P. No.5867 of 2002.  By the impugned

order  the  High  Court  has  set  aside  order  dated  3rd

April, 1998 passed by the Maharashtra Administrative

Tribunal (for short ‘the Tribunal’) allowing the review

applications  preferred  by  appellant  No.1  herein

against its earlier order dated 15th December, 1997 in

O.A.  Nos.920  and  921  of  1993,  filed  by  the

respondents herein.   

3. Pursuant  to the applications filed  in the  year  1980,

appellant  No.4  issued  caste  certificates  to  the

respondents  declaring  them  to  be  belonging  to

“Mahadeo Koli”, a Scheduled Tribe.  On the strength of

the caste certificates, the respondents appeared in the

competitive  examination  held  by  the  Maharashtra

Public Service Commission, for recruitment to the post

of  Clerk  under  the  reserved  category  of  Scheduled

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Tribes.   Being  successful  in  the  examination,  they

were appointed to the said posts with effect from 21st

May, 1982.

4. However,  vide  letter  dated  26th August,  1986,  the

General Administrative Department of appellant No.1

asked  the respondents  to  get  their  caste  certificates

verified.   They  were  required  to  appear  before

appellant No.4 on 9th November, 1987 for the purpose

of  reverification of  their  caste  certificates.   By  order

dated  12th July,  1992,  appellant  No.4  cancelled  the

caste  certificates  issued  to  the  respondents.   In

furtherance of the said order,  on 5th January, 1993,

memorandums  were  issued  to  the  respondents,

informing  them  that  their  services  will  stand

terminated on completion of one month from the date

of issue of the memorandums.  

5. Being aggrieved by order dated 12th July, 1992, the

respondents  preferred  appeals  before  the  Divisional

Commissioner, appellant No.3 herein, who vide order

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dated 13th July, 1993, quashed and set aside the order

passed  by  appellant  No.4,  cancelling  the  caste

certificates.  Thereafter,  the  respondents  made

representations  to  appellant  No.1  for  reinstatement

but their requests were not acceded to.

6. Left  with  no  other  option,  the  respondents  filed

original applications (O.A. Nos. 920 and 921 of 1993)

before  the  Tribunal,  challenging  the  termination  of

their services vide memorandums dated 5th January,

1993  with  effect  from  5th February,  1993.   The

Tribunal,  by  a  common order  dated  15th December,

1997, held that in the light of order dated 13th July,

1993 passed by the Divisional Commissioner, setting

aside order  dated 12th July, 1992 passed by appellant

No.4,  the  memorandums terminating  the  services  of

the  respondents,  did  not  survive.  Consequently,  the

Tribunal  set  aside  memorandums/orders  dated  5th

January,  1993  and  directed  reinstatement  of  the

respondents,  treating their  absence from the date  of

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termination  to  the  date  of  reinstatement  as  extra-

ordinary leave.

7. It  appears that in the meanwhile the Caste Scrutiny

Committee, constituted in terms of the decision of this

Court  in  Kumari  Madhuri  Patil  & Anr.  Vs.  Addl.

Commissioner, Tribal Development & Ors.1,  with a

view to streamline the procedure for issuance of social

status  certificates  and their  scrutiny,  undertook  the

exercise  of  reverification  of  the  caste  status  of  the

respondents.  On enquiry, it opined that the claim of

the respondents as belonging to “Mahadeo Koli”  was

not  verifiable  and,  in  fact,  they  had  changed  their

caste from “Mangela Koli” to “Mahadeo Koli” to benefit

from  the  concessions  available  to  latter  Scheduled

Tribe.  Accordingly, the Caste Scrutiny Committee vide

their orders dated 27th March, 1996 and 23rd March,

1996  cancelled  the  caste  certificates  issued  to

respondents No.1 and 2 respectively.

1 (1994) 6 SCC 241 5

8. At this juncture, it would be appropriate to note that

by  virtue  of  a  Government  decision  No.  C.B.C.-

1494/Ad No. 236/ B.C.C-5 dated 7th December, 1994,

a Government Resolution was notified on 15th June,

1995 declaring “Mangela Koli”  caste to be a “special

backward category”, entitled to all special concessions,

with effect from 7th December, 1994, which were being

enjoyed by other notified castes and tribes.  Para 4 of

the said Resolution, relevant for our purpose, reads as

follows:

“The  reservation  given  to  the  above mentioned  ‘Special  Backward  Category’ will remain as a backlog for direct service recruitment and promotion. The principle of  creamy  layer  will  not  apply  to  this category.   The  persons  in  this  category who  have  prior  to  this  on  the  basis  of scheduled  tribe  certificate  obtained admission  in  the  government,  semi government  services  got  promotion  they should  not  be  removed  from  this promotion or service.”

9. The parties herein are ad idem that with effect from 7th

December,  1994,  “Mangela  Koli”,  the  caste  the

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respondents belong to as per the opinion of the Caste

Scrutiny  Committee,  had  been  treated  as  “special

backward category” and they were entitled to all the

privileges  and  protections  enjoyed  by  other  notified

castes/tribes.   But  the  appellants  dispute  the

entitlement of the respondents to their reinstatement

to the posts held by them.

10. As noted supra, vide order dated 15th December, 1997,

though the Tribunal had directed reinstatement of the

respondents  in  service  forthwith  but  the  appellants

did not comply with the said order.  Consequently, on

17th February,  1998,  the respondents filed contempt

applications  (No.11  and  12  of  1998)  against  the

appellants.   Prior  to  that,  on  13th January,  1998,

appellant  No.1  and  the  Principal  Secretary,  General

Administrative  Department  had  filed  two  review

applications (No.7 and 8 of  1998)  for recall  of  order

dated  15th December,  1997,  on the ground that the

orders passed by the Caste Scrutiny Committee dated

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23rd and  27th March,  1996,  rejecting  respondents’

claim was not  brought to the notice  of the Tribunal

when  the  original  applications  were  taken  up  for

hearing  and  the  said  order  had  been  pronounced

thereon.  It is, however, pertinent to note that in the

review  applications  there  was  no  reference  to

Government  Resolution  dated  15th June,  1995,

presumably  for  the  reason  that  the  services  of  the

respondents  having  been  terminated  prior  to  7th

December, 1994, i.e. on 5th January, 1993, their cases

did not fall within the ambit of the said Government

Resolution.   However,  in  their  reply  affidavits,  the

respondents  pleaded  that  they  were  entitled  to  the

benefit of the said Government Resolution.  Accepting

the stand of the appellants, vide their common order

dated  3rd April,  1998,  the  Tribunal  came  to  the

conclusion that in the light of the opinion of the Caste

Scrutiny Committee, no relief could be granted to the

respondents in the original applications.  The Tribunal

also held that the services of the respondents having 8

been  terminated  on  5th January,  1993,  the  said

Government  Resolution  was  of  no  avail  to  them.

Accordingly,  the  Tribunal  vide  order  dated  3rd April,

1998,  allowed  the  review  applications;  set  aside  its

order  dated  15th December,  1997  (in  O.A.  Nos.  920

and  921  of  1993)  and  dismissed  the  contempt

applications preferred by the respondents.

11. Aggrieved,  the  respondents  challenged  Tribunal’s

order  dated  3rd April,  1998  in  the  High  Court  by

preferring a writ petition some time in the year 2001.

The High Court, by the impugned order, has set aside

the order dated 3rd April, 1998, passed by the Tribunal

in  review  applications  and has  confirmed  Tribunal’s

original order dated 15th December, 1997.  The High

Court  has  observed  that  though  services  of  the

respondents  were  terminated  on  5th January,  1993,

because  of  cancellation  of  caste  certificates  by

appellant  No.4  but  respondents’  appeal  against  the

said  action  had  been  accepted  by  the  Divisional

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Commissioner.  Therefore,  by  virtue  of  the  appellate

order, respondents’ claim got accepted.  Furthermore,

even the Tribunal, by its order dated 15th December,

1997  had  directed  the  government  to  reinstate  the

respondents in service forthwith and, therefore, on the

date of filing of review applications, the respondents

were  deemed  to  be  in  service.   Consequently,  as  a

natural  corollary  even  otherwise  the  Government

Resolution,  which was  issued  in  1995,  had  become

applicable and the protection granted under it became

available to the respondents.  Hence this appeal.

12. Learned counsel appearing on behalf of the appellants

submitted that in the light of the reports of the Caste

Scrutiny Committee, dated 23rd and 27th March, 1996,

invalidating  the  caste  claim of  the  respondents,  the

High Court committed a grave error in setting aside

the  order  passed  by  the  Tribunal  in  review

applications.   Learned  counsel  contended,  though

faintly,  that  the  services  of  the  respondents  having

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been terminated on 5th January, 1993, the protection

granted  under  Government  Resolution  dated  15th

June, 1995 applicable with effect from 7th December,

1994 was not available to the respondents.  Lastly, it

was urged that in any event, having obtained the caste

certificates  fraudulently,  the  respondents  were  not

entitled  to  back-wages  for  the  period  they  had  not

worked as clerks.

13. Per  contra,  learned  counsel  for  the  respondents

submitted that in the teeth of order dated 13th July,

1993  passed  by  the  Divisional  Commissioner,

accepting the claim of the respondents, and the said

order being in vogue as on 7th December,  1994, the

said  Government  Resolution  was  duly  applicable  in

their  case.   It  was asserted that in view of the said

resolution, the services of the respondents could not

be  terminated as admittedly,  according to the Caste

Scrutiny Committee  they belonged to “Mangela  Koli”

caste which was also notified as a “special backward

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category”.   Learned counsel  contended that as there

was no allegation or finding against the respondents

that  they  had  practised  any  fraud  in  obtaining  the

caste certificates, they are entitled to full back-wages,

particularly when despite order dated 17th July, 1993

by the Divisional Commissioner and order dated 15th

December,  1997  by  the  Tribunal,  the  respondents

were not reinstated in service.

14. Thus, the moot question arising for consideration is as

to whether the protection granted under Government

Resolution dated 15th June, 1995 would be available

to the respondents?  

15. In the light of the afore-noted factual matrix, we are of

the opinion that the answer to the question posed has

to be in the affirmative and, therefore, the decision of

the High Court, insofar as the applicability of the said

Government  Resolution  is  concerned,  cannot  be

faulted.  As noted above, on the passing of order dated

13th July,  1993  by  the  Divisional  Commissioner,

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quashing order dated 12th July, 1992 by the Tehsildar,

cancelling the caste certificate, the very foundation of

the  memorandum  dated  5th January,  1993

disappeared.  Indubitably, the order of the Divisional

Commissioner  was not questioned by the appellants

and,  therefore,  its  natural  consequence  was  that

memorandums dated 5th January, 1993 ought to have

been withdrawn by the authorities concerned and the

respondents  reinstated  in  service.   Since  it  did  not

happen,  the  respondents  had  to  approach  the

Tribunal for appropriate relief  which was granted on

15th December,  1997 and a direction was issued for

their reinstatement.  No doubt, it is true that by the

time the Tribunal took up the original applications for

consideration,  the  Caste  Scrutiny  Committee  had

rendered  their  opinion  on 23/26th March,  1996  but

the same was not brought to the notice of the Tribunal

by  either  side  when  on  15th December,  1997,

respondents’  original  applications  were  decided  in

their  favour  and  their  reinstatement  in  service  was 13

ordered.  But the fact remains that in the absence of

any other adverse report/opinion regarding the caste

of the respondents prior to 23/26th March, 1996 i.e.

the date of Committee’s Report, they were deemed to

be in service as on 7th December, 1994, by virtue of

Commissioner’s order, even if Tribunal’s order, dated

15th December,  1997,  is  ignored.   We  feel  that

appellant’s  inaction  on  respondents’  representations

for  reinstatement  pursuant  to  appellate  authority’s

order dated 13th July, 1993 cannot be held out against

the respondents.

16. In our view, therefore, the High Court was justified in

holding  that  as  on  7th December,  1994,  the

respondents  were  deemed  to  be  in  service  and,

therefore  Government  Resolution  dated  15th June,

1995 was clearly  applicable  in their  cases  and they

were  entitled  to  the  protection  thereunder.

Accordingly, we affirm the decision of the High Court

on the point.

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17.The next  question for  determination is whether  the

respondents  are  entitled  to  the  back-wages  for  the

period they were out of service?

18.It is true that once the order of termination of service

of  an  employee  is  set  aside,  ordinarily  the  relief  of

reinstatement  is  available  to  him.   However,  the

entitlement of an employee to get reinstated does not

necessarily result in payment of full or partial back-

wages, which is independent of reinstatement.  While

dealing  with  the  prayer  of  back-wages,  factual

scenario,  equity  and  good  conscious,  a  number  of

other factors, like the manner of selection; nature of

appointment; the period for which the employee  has

worked with the employer etc.; have to be kept in view.

All  these  factors  and  circumstances  are  illustrative

and no precise or abstract formula can be laid down

as to under what circumstances full or partial back-

wages should be awarded.  It depends upon the facts

and circumstances of the each case.   

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19. In  General  Manager,  Haryana  Roadways  Vs.

Rudhan  Singh2 a  three-Judge  Bench  of  this  Court

has  observed  that  there  cannot  be  a  strait  jacket

formula for awarding relief of back-wages and an order

of back-wages should not be passed in a mechanical

manner.  It has been held that a host of factors, like

the manner and method of selection and appointment;

the nature of appointment, namely, whether ad hoc,

short  term,  daily  wage,  temporary  or  permanent  in

character;  and  the  length  of  service,  which  the

workman had rendered with the employer are required

to  be  taken  into  consideration  before  passing  any

order  for  award  of  back-wages.  [See: also  Haryana

State  Electronics  Development  Corpn.  Ltd.  Vs.

Mamni3;  U.P. State Brassware Corpn. Ltd. & Anr.

Vs. Uday Narain Pandey4  and U.P. SRTC Vs. Mitthu

Singh 5]

2 (2005) 5 SCC 591 3 (2006) 9 SCC 434 4 (2006) 1 SCC 479 5 (2006) 7 SCC 180

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20. Having considered the matter on the touchstone of the

afore-noted  broad  principles,  we  are  of  the  opinion

that  the  facts  in  hand  do  not  warrant  payment  of

back-wages to the respondents.  In the instant case,

though there is no allegation against the respondents

that originally the caste certificates were obtained by

them fraudulently and, in fact, none of the authorities

have recorded any findings to that effect, yet we feel

that non-disclosure of the Caste Scrutiny Committee’s

Report dated 23/27th March, 1996 by the respondents

before  the Tribunal  is tantamount to suppression of

material  and  vital  information  from  the  Court,

bordering fraud.

21. In  S.P.  Chengalvaraya  Naidu  (Dead)  By LRs.  Vs.

Jagannath (Dead) By LRs. & Ors.6,  this Court had

observed that a litigant, who approaches the court, is

bound  to  produce  all  the  documents  which  are

relevant  to  the  litigation  and if  he  withholds  a  vital

document in order to gain advantage on the other side 6 (1994) 1 SCC 1

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then he would he guilty of playing fraud on the court

as well as on the opposite party.

22. Similarly,  in  Ram Preeti  Yadav  Vs. U.P.  Board of

High School and Intermediate Education & Ors.7,

it was observed that fraud is a conduct either by letter

or words, which induces the other person, or authority

to take a definite determinative stand as a response to

the  conduct  of  former  either  by  words  or  letter.

Referring to Derry Vs. Peek8, it was said that although

negligence  is  not  fraud  but  it  can  be  evidence  on

fraud.  

23. However, having regard to the peculiar circumstances

of  the  case,  namely,  the  factum  of  issue  of

Government Resolution dated 15th June, 1995 in the

interregnum, which was in favour of the respondents

insofar  as  their  caste  claim  for  reservation  was

concerned, we do not propose to delve on the issue of

their conduct any further.  Suffice it to observe that

7 (2003) 8 SCC 311 8 (1889) 14 AC 337

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there  was  no  good  reason  for  the  respondents  to

withhold  the  opinion  of  Caste  Scrutiny  Committee

from  the  Tribunal,  when  their  original  applications

were taken up for hearing in December, 1997.  We are

convinced that this lapse on their part, coupled with

the fact that there was inordinate delay of almost three

years  in  challenging  the  order  of  Tribunal  dated  3rd

April, 1998 passed in appellants’ review applications,

disentitles  them at  least  from their  claim  for  back-

wages.  Accordingly, we set aside the order of the High

Court to the extent it directs treatment of respondents’

absence  from the  date  of  termination to the  date  of

reinstatement as extra-ordinary leave.

24.Consequently,  for  the  reasons  afore-stated,  the

appeal is partly allowed to the extent indicated above.

However, there will be no order as to costs.

………………………………….…J.  (C.K. THAKKER)  

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…………………………………….J.  (D.K. JAIN)

NEW DELHI; JULY 11, 2008.

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