(Arising out of SLP(C) No. 6581 of 2006)
J : - Leave granted.
This appeal is directed against a
judgment and order dated 19.08.2005 passed by a Division Bench of the
High Court of Judicature of Bombay in Writ Petition No. 4158 of 2005
whereby and whereunder the writ petition filed by the respondent herein
Respondent was appointed in the
services of the Government of Maharashtra on 29.06.1995. Respondent
claimed to be belonging to Halba community, a scheduled tribe. The caste
certificate procured by the respondent from the competent officer having
been doubted, the matter was referred to the Caste Certificate Scrutiny
Committee, Nagpur on 27.08.1999 for verification. The respondent was
found to be belonging to 'Koshti' caste which comes within the category
of 'special backward class' and not within the scheduled tribe category.
The question as to whether 'Koshti
Halbas' are members of the Scheduled Tribe or not came up for
consideration before this Court in State of Maharashtra v. Milind and
Others [(2001) 1 SCC 4], wherein it was held that they were not.
In view of the finding of fact that
the respondent herein was not a member of the scheduled tribe but was a
'Koshti', his caste certificate was invalidated by an order dated
A writ petition thereafter was filed
by the respondent before the High Court praying inter alia for the
"A) That by passing a suitable writ, order or direction in the nature of
mandamus or certiorari or any other appropriate writ, order or
direction, a quash and set aside the order dated 24.6.2004 passed by the
Respondent No. 2 Committee invalidating the tribe claim of Petitioner
that he belongs to Halba, Scheduled Tribe.
B) It be held and declared that in
view of Government Resolutions dated 15.6.1995 and 30.6.2004 the
services of Petitioner's are liable to be protected thereby issuing such
order to the Respondent No. 2 and 3.
C) During the pendency of present
petition by passing an order ad interim in nature stay the effect,
operation and implementation of the order dated 24.6.2004 invalidating
tribe claim of Petitioner and/ or in the alternative restrain the
Respondents No. 1 and 3 from passing any adverse order consequent upon
invalidation of tribe claim of petitioner by Respondent No. 2
It appears that the respondent
accepted the findings of the Caste Scrutiny Committee. However, relying
on or on the basis of a purported government resolution dated 15.06.1995
whereby and whereunder the services of persons who were appointed prior
thereto were sought to be protected, the Division Bench of the High
Court by reason of the impugned judgment directed that although the
respondent was appointed on 29.06.1995, having regard to the fact that
he had been selected on 15.06.1995, he was entitled to protection in
terms of the said resolution stating:
"5. In the present case the
Petitioner was selected on 15th June, 1995 and got the appointment order
on 29th June, 1995. Since Maruti Sandipan Jadhav the Petitioner in Writ
Petition No. 422 of 1997, is entitled to get the benefit under the
Government Resolution dated 15th June, 1995 the same principle should be
applied to the Petitioner in the present petition.
6. In the result, the petition is
allowed. The impugned order of dismissal dated 27th May 2005 is quashed
and set aside. The Respondents are directed to reinstate the Petitioner
with continuity of service but without back wages and to regularize his
service in the light of the Government Resolution dated 15th June, 1995
Mr. S.S. Shinde, learned counsel
appearing on behalf of the appellants, would submit that having regard
to the decision of the Caste Scrutiny Committee, the impugned judgment
cannot be sustained particularly in view of the fact that he was
appointed on 29.06.1995.
Mr. Manish Pitale, learned counsel
appearing on behalf of the respondent, on the other hand, would submit
that in a case of this nature and particularly in view of the fact that
the question as to whether 'Koshti-Halbas' are the members of the
scheduled tribe or not had authoritatively been pronounced only in
Milind (supra); this Court may protect the services of the respondent.
Reliance in this behalf has been placed in a similar case in Civil
Appeal No. 3375 of 2000 decided on 12.12.2000, which is in the following
"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."
Indisputably, the State of
Maharashtra enacted "Maharashtra Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance and
Verification of) Caste Certificate Act, 2000 (for short "the 2000 Act").
Section 6 of the 2000 Act laid down the procedure for the verification
of caste certificate. Section 7 thereof provides for confiscation and
cancellation of a caste certificate in the event the same appears to be
false. Section 10 provides for withdrawal of the benefits secured on the
basis of the false caste certificate in the following terms:
"10. Benefits secured on the basis
of false Caste Certificate to be withdrawn.
(1) Whoever not being a person
belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified
Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or
Special Backward Category secures admission in any educational
institution against a seat reserved for such Castes, Tribes or Classes,
or secures any appointment in the Government, local authority or in any
other Company or Corporation, owned or controlled by the Government or
in any Government aided institution or Co-operative Society against a
post reserved for such Castes, Tribes or Classes by producing a false
Caste Certificate shall, on cancellation of the Caste Certificate by the
Scrutiny Committee, be liable to be debarred from the concerned
educational institution, or as the case may be, discharged from the said
employment forthwith and any other benefits enjoyed or derived by virtue
of such admission or appointment by such person as aforesaid shall be
(2) Any amount paid to such person
by the Government or any other agency by way of scholarship, grant,
allowance or other financial benefit shall be recovered from such person
as an arrear of land revenue.
(3) Notwithstanding anything
contained in any Act for the time being in force, any Degree, Diploma or
any other educational qualification acquired by such person after
securing admission in any educational institution on the basis of a
Caste Certificate which is subsequently proved to be false shall also
stand cancelled, on cancellation of such Caste Certificate, by the
(4) Notwithstanding anything
contained in any law for the time being in force, a person shall be
disqualified for being a member of any statutory body if he had
contested the election for local authority, Co-operative Society or any
statutory body on the seat reserved for any of Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes or Special Backward Category by procuring a false
Caste Certificate as belonging to such Caste, Tribe or Class on such
false Caste Certificate being cancelled by the Scrutiny Committee, and
any benefits obtained by such person shall be recoverable as arrears of
land revenue and the election of such person shall be deemed to have
been terminated retrospectively."
The Caste Scrutiny Committee was
initially constituted in terms of the decision of this Court in Kumari
Madhuri Patil & Anr. v. Additional Commissioner, Tribal Development &
Ors. [(1994) 6 SCC 241]. The Committee which was now constituted in
terms of the 2000 Act issued a notice upon the respondent. He was given
an opportunity of hearing. The principles of natural justice had, thus,
been complied with. The Caste Scrutiny Committee opined that the
respondent failed to prove that his socio-cultural traits,
characteristics, festivals and customs match with those of Halba,
Scheduled Tribe community. It was found that the father of the
respondent himself had given details of his family tree as also
socio-cultural traits which categorically showed that the respondent was
not a member of the Scheduled Tribe community. Even the primary school
leaving certificate of the respondent's father clearly showed that they
belonged to 'Koshti'. It was ordered:
"After considering all the documents and facts and in exercise of the
powers vested vide Government Resolutions quoted in the preamble at
Sr.No.1, the Caste Scrutiny Committee has come to the conclusion that
Shri Sanjay Krushnarao Nimje does not belong to the Halba Scheduled
Tribe hence his claim towards the same is held invalid. His caste
certificate granted by the Executive Magistrate, Nagpur vide
R.C.No.287/MRC-81/88-89, dated 1.9.88 is hereby cancelled confiscated."
It is accepted that an undertaking
was filed by the respondent accepting the order passed by Appellant No.
3 Committee before the High Court in the following terms:
"The Petitioner is filing this pursis/undertaking that he accepts the
order passed by the Respondent No.2 Scrutiny Committee and further
undertakes that he or his legal heirs/progeny will not claim any benefit
as a schedule Tribe Candidate either in education or in employment.
In view of the Government Resolution
dated 15.6.1995 and the judgment of this Hon'ble Court, filed along with
this petition as Annexure T, the services of the Petitioner be protected
and he may be continued in service by giving specific directions to the
Indisputably, on 7.12.1994, 'Koshtis'
were declared to be as Special Backward Class category. By reason of the
said Government Resolution dated 15.06.1995, it was directed:
"The reservation as aforesaid given to Special Backward Class category
is applicable to direct recruitment and promotions and the Creamy layer
criteria is not applicable to this category. The persons from this
category who have entered into service and has obtained promotion on the
basis of Schedule Tribe Certificates, they should not be reverted or
terminated from service."
Respondent admittedly was appointed
on 29.06.1995. Although he might have been selected on 15.06.1995, ex
facie, the said Government Resolution dated 15.06.1995 would have no
application in his case.
Once the respondent became
disentitled to obtain the benefit of the said Government Resolution
dated 15.06.1995, the 2000 Act will apply in his case.
The 2000 Act being a legislative Act
would prevail over any Government Resolution. A Government Resolution
may be beneficient in nature but it is well-settled that a benefit under
a Government Resolution cannot be extended to a person who does not
satisfy the conditions precedent thereof.
In any event, the effect of the
judgment of this Court as also the provisions of a statute in the light
of the constitutional provisions contained in Articles 341 and 342 of
the Constitution of India cannot be diluted by reason of a Government
Resolution or otherwise.
The extent of jurisdiction of the
Caste Scrutiny Committee came up for consideration before this Court in
State of Maharashtra and Others v. Ravi Prakash Babulalsing Parmar & Anr.
[2006 (10) SCALE 575 : 2007 (1) SCC 80] wherein this Court categorically
held that the Caste Scrutiny Committee has the requisite jurisdiction in
relation thereto, stating:
"The makers of the Constitution laid emphasis on equality amongst
citizens. Constitution of India provides for protective discrimination
and reservation so as to enable the disadvantaged group to come on the
same platform as that of the forward community. If and when a person
takes an undue advantage of the said beneficent provision of the
Constitution by obtaining the benefits of reservation and other benefits
provided under the Presidential Order although he is not entitled
thereto, he not only plays a fraud on the society but in effect and
substance plays a fraud on the Constitution. When, therefore, a
certificate is granted to a person who is not otherwise entitled
thereto, it is entirely incorrect to contend that the State shall be
helpless spectator in the matter."
We may also notice that ordinarily a
person, who has obtained appointment on the basis of a false
certificate, cannot retain the said benefit. [See Bank of India and
Another v. Avinash D. Mandivikar and Others, (2005) 7 SCC 690, Ram Saran
v. I.G. of Police, CRPF & Ors. 2006 (2) SCALE 131 and The Superintendent
of Post Offices & Ors. v. R. Valasina Babu, Civil Appeal No. 5868 of
2006, disposed of on 14.12.2006]
In a situation of this nature,
whether the court will refuse to exercise its discretionary jurisdiction
under Article 136 of the Constitution of India or not would depend upon
the facts and circumstances of each case. This aspect of the matter has
been considered recently by this Court in Sandeep Subhash Parate v.
State of Maharashtra & Ors. [2006 (8) SCALE 503]
From the order of the Caste Scrutiny
Committee itself, it is evident that the father of the respondent was
shown in the primary school register as belonging to 'Koshti' caste.
They were not members of Scheduled Tribe. They were not even 'Koshti-Halbas'.
It may be true that an authoritative pronouncement in this behalf came
for the first time in Milind (supra), but it is not a case where the
respondent pleaded and proved bona fide.
Respondent was not the member of a
tribe. If a person is not a member of a tribe, the question of the said
tribe being a scheduled tribe would not arise.
Thus, it is a clear case where the
provisions of the 2000 Act would apply. We see no reason as to why the
statutory provisions should not be directed to apply in the instant
case. It may be that at one point of time, keeping in view of the stand
taken in particular case, some indulgence had been shown. Indulgence
might have been shown to the students or who were found to have acted
bona fide but the same would not mean that this Court would pass an
order contrary to or inconsistent with the provisions of a legislative
Our attention was drawn to an order
dated 12th December, 2000 passed in Civil Appeal No. 3375 of 2000, but
it does not appear the provisions of the 2000 Act had been brought to
the notice of this Court therein. Furthermore, we are not aware as to
the fact involved therein and, thus, the same cannot be treated to be a
For the reasons aforementioned, the
impugned judgment cannot be sustained, which is set aside accordingly.
The appeal is allowed. In the facts and circumstances of the case,
however, we make no order as to costs.
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