Bombay High Court
Full Bench
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5297 OF 2013
Arun s/o Vishwanath Sonone,Aged : 38 years,Occupation : Service (Primary Teacher),R/o Telkhar, Tq. Chikhaldara,
District Amravati.
Petitioner
Versus
1.
State of Maharashtra,
through its Secretary, Department of Education,
Mantralaya, Mumbai32.
2.
2.
Chief Executive Officer, Zilla Parishad, Ratnagiri, District Ratnagiri.
3.
3.
Scheduled Tribe Caste Certificate
Scrutiny Committee, through its
Member Secretary, Erwin Square,
at Amravati, District Amravati.
Respondents
WITH WRIT PETITION NO.3890 OF 2013
Tulshiram s/o Sadashiv Badlu, Aged 41 years, Occupation : Service,
R/o C/o B.S. Badlu, Plot No.B4,
NIT Layout, Near Military Camp,
Darshan Colony, Nagpur.
Petitioner
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Versus 1. Joint Commissioner & Vice Chairman,
Scheduled Tribe Caste Certificates
Scrutiny Committee, Adiwasi Vikas Bhavan, Giripeth, Nagpur.
2. Executive Engineer, Maharashtra State Electricity
Distribution Co. Ltd. (MSEDCL), Plot No.178, Near Saibaba Temple,
Kalyan Ambarnath Road, Ulhasnagar421 003.
Respondents
WITH
WRIT PETITION NO.4363 OF 2013
Ku. Hema Vijay Nikhare, Aged about 39 years,
Occupation : Nil, Permanent Resident of Plot
No.25, Telecom Nagar, Nagpur, presently residing at E204, Vrajbhoomi Residency,
Opp. Ambe School, Near Vadsar
Bridge, Vadodara, Gujarat.
Petitioner
Versus
1. Union of India, through its
Secretary, Ministry of Defence, Defence Research and Development
Organisation, B Wing, Sena Bhavan,
DHQ PO New Delhi. 2.
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Visakhapatnam.
Respondents
….
Shri Anil Mardikar, Senior Advocate, assisted by Shri Narayan
Phadnis, Advocate, and Shri Rajeev
Madkholkar, Shri Ram Parsodkar, Shri S.R.
Narnaware and Shri V.G. Wankhede,
Advocates for Petitioners.
Smt. Bharti Dangre, Government Pleader for State and Caste
Scrutiny Committee.
Shri Rohit Deo, Assistant Solicitor General for Union of India.
Shri R.E. Moharir, Advocate for Respondent
No.2 in WP No.3890 of 2013.
CORAM : MOHIT S. SHAH, CHIEF JUSTICE,
SMT.VASANTI A. NAIK AND
R.K. DESHPANDE, JJ.
Date of Reserving the Judgment :
2 December 2014 Date of Pronouncing the Judgment :
22 December 2014 JUDGMENT (Per : R.K. Deshpande, J.) :
1.
All these matters are placed before this Full Bench by
a common order of reference dated 1102013 passed by the
Division Bench of this Court (Smt. Vasanti A. Naik and Shri A.S.
Chandurkar, JJ.) to consider and decide the following questions
: “1.
Whether the relief of protection of service after
invalidation of the caste claim can be granted by the
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of the judgment of the
Hon'ble Supreme Court in Kavita Solunke Vs. State of
Maharashtra and others 2012(8) SCC 430? 2. If
the answer to question No.1 is in
the
affirmative, can such relief of protection of service be
granted by the High Court in a case where the same
relief has been earlier refused by the High Court?”
2. The reason for framing question No.1 is that there is
conflict of views taken by the different Division Benches of this
Court upon consideration of the decision of the Apex Court in the
case of Kavita Solunke v. State of Maharashtra and others, reported
in (2012) 8 SCC 430. One line of the decisions taking the view
that the protection in service granted in Kavita Solunke's case is an
exercise of jurisdiction under Article 142 of the Constitution of
India and other line of the decisions
holding that it is a law declared by the Apex Court under Article 141 of the Constitution
of India, which is binding. 3. So far
as the question No.2, which falls for
consideration of the Full Bench, is concerned, it does not arise out
of any conflict between the views taken by the Division Benches of
this Court, but the referring Bench thought it fit to refer the said
question for decision by the Larger Bench, because it found that
repeatedly the matters are coming before the Division Bench of
this Court, wherein the relief of protection of service has been
claimed in spite of the fact that the petitions claiming the same
reliefs were already rejected or that no such relief was claimed,
though the petitions were filed challenging
the order of the Scrutiny Committee, which were rejected. The question of bar of
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res judicata, including that of constructive res judicata, therefore,
falls for consideration. 4. Heard Shri
Anil Mardikar, the learned Senior Advocate,
assisted by Shri Narayan Phadnis, Advocate;
Shri
Rajeev Madkholkar, Shri Ram Parsodkar, Shri S.R. Narnaware,
and Shri V.G. Wankhede, the learned counsels appearing for the
petitioners in all these petitions;
Smt. Bharti Dangre, the learned Government
Pleader for the State and the Caste
Scrutiny Committee; Shri Rohit Deo, the
learned Assistant Solicitor General for Union of India, and Shri R.E. Moharir, the
learned counsel for the respondent No.2
in Writ Petition No.3890 of 2013.
In order to curtail the volume
of this judgment, the rival contentions are
not reproduced in this
judgment, but we must appreciate the assistance provided by all
the learned counsels and this judgment is the outcome of it and
we believe that the answers to the rival contentions shall find
place in it. 5.To trace out the history of litigation, the State Government
found in the year 1980 that the concessions and benefits in
various forms made available to the
persons belonging to Scheduled Tribe category,
including those of admissions in
educational institutions and reservations in Government service
were largely being availed by the persons, who do not really
belong to Scheduled Tribe category by producing false Caste
Certificates and such percentage was found as high as 60 per
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cent. Hence, a Committee was constituted by the Government
Resolution dated 29101980 to enquire into the procedure for
issuance of Caste Certificates, which laid
down the revised
instructions and prescribed the authorities for issuance of Caste
Certificates. By the same resolution, the
Divisional
Commissioner was empowered to enquire into the appeals in
respect of the complaints and allegations
about issuance of Caste Certificates to
the persons, who do not belong
to Scheduled Tribes, and the detailed
procedure was als.o
prescribed for dealing with such appeals.
6. As a result of the aforesaid exercise, the controversies
started surfacing in respect of spurious
claims to grab the
benefits and concessions for Scheduled
Tribe category. The
controversy in one such appeal decided by the authorities in
respect of a claim for 'Mahadeo Koli', a Scheduled Tribe, which
is an Entry 29 in the Constitutional (Scheduled Tribes) Order,
1950 in relation to the State of Maharashtra, went up to the
Apex Court, which was decided on 291994;
Kum. Madhuri Patil and another v.
Additional Commissioner, Tribal
Development, reported in AIR 1995 SC 94.
The Apex Court
found that the appellants, who were the candidates belonged to
the Other Backward Class category of 'Hindu Koli', claimed the
benefits of the admission in M.B.B.S.
Course, meant for Scheduled Tribe category
as the members of a subcaste of
'Mahadeo Koli', a Scheduled Tribe. The Apex Court observed
that the spurious tribes have become a threat to the genuine
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tribals, who are defrauding the true Scheduled Tribes to their
detriment and deprivation snatching away their benefits.
In para 12 of the said decision, the Apex Court observed that the
admissions wrongly obtained on the basis of false social status
certificate necessarily have the effect of depriving the genuine
Scheduled Castes or Scheduled Tribes or OBC candidates as
enjoined in the Constitution of the benefits conferred on them
by the Constitution.
The genuine candidates are also denied
admission to educational institutions or appointments to office
or posts under a State for want of social status certificate. The
Apex Court found that ineligible or spurious persons who falsely
gained entry resorted to dilatory tactics and create hurdles in
completion of the inquiries by the Scrutiny Committee. It is,
therefore, necessary that the certificates issued are scrutinised
at the earliest and with utmost expedition and promptitude.
7.
In the said decision in Madhuri Patil's case, the Apex
Court thought it fit to streamline the procedure for issuance of
social status certificates, their scrutiny
and approval. The
direction was issued to all the State Governments to constitute a
Committee of three officers for verification
and issuance of
social status certificates and upon the finding being recorded
that the claim is not genuine or doubtful or spurious or false or
wrong claim, to cancel the admission/appointment so obtained
by following the procedure prescribed therein.
The guideline
Nos.10, 14 and 15 laid down by the Apex Court being relevant,
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“10. In case of any delay in
finalising the
proceedings, and in the meanwhile the last date for
admission into an educational institution or
appointment to an officer post, is getting expired,
the candidate be admitted by the Principal or such
other authority competent in that behalf
or appointed on the basis of t
he social status certificate already issued or an affidavit duly sworn
by the parent/guardian/candidate before the
competent officer or nonofficial and such admission
or appointment should be only provisional, subject
to the result of the inquiry by
the Scrutiny Committee.” “14. In case, the certificate obtained or social
status claimed is found to be false,
the parent/guardian/the candidate should be prosecuted
for making false claim. If the
prosecution ends in a conviction and sentence of the
accused, it could be regarded as an offence involving
moral turpitude, disqualification for elective posts
or offices under the State or the Union or elections
to any local body, legislature or the Parliament.”
“15. As soon as the finding is recorded by the
Scrutiny Committee holding that the
certificate obtained was false, on its
cancellation and confiscation simultaneously, it
should be communicated to the concerned
educational
institution or the appointing authority by registered
post with acknowledgment due with a request to
cancel the admission or the appointment.
The Principal etc. of the educational
institution responsible for making the
admission or the appointing authority, should
cancel the
admission/appointment without any further notice
to the candidate and debar the candidate for further
study or continue in office in a post.”
In response to the aforesaid decision of the Apex
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Court, the State of Maharashtra by its resolution
dated 73 1996, prescribed revised procedure
for issuance of Caste
Certificates to the candidates claiming the benefits, which are
made available for the backward class category of Scheduled
Tribe. The preamble of the said Government Resolution itself
makes it clear that pursuant to the decision of the Apex Court in
Madhuri Patil's
case, the authorities are being prescribed and
the procedure for issuance of Caste Certificates has also been
laid down. 8.
Then came the decision of the Apex Court in the
case of State of Maharashtra v.
Milind and others, reported in
(2001) 1 SCC 4, by the Constitution Bench on 28112000. The
Division Bench of this Court had ruled that 'Halba Koshti' is a
subdivision of the main tribe 'Halba'/'Halbi' as per Entry No.19
in the Scheduled Tribes Order applicable
to the State of Maharashtra. This Court had held that it was permissible to
make an enquiry as to whether 'Halba
Koshti' is a subdivision or a part
and parcel of the main tribe
of 'Halba'/'Halbi' as per Entry No.19 in
the Scheduled Tribes Order. The decision of this Court was based upon the decisions
of the Division Benches of the Apex Court rendered in Bhaiya
Ram Munda v. Anirudh Patar and others, reported in (1971) 4
SCR 804, and Dina v. Narayan Singh, reported in 38 ELR 212.
The Apex Court has held in para 26 that no enquiry at all is
permissible and no evidence can be let in to find out and decide
that if any tribe or tribal community or part of or group within
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meaning of the concerned Entry in the Presidential Order when
it is not so expressly or specifically included.
In Para 34, the
Apex Court has held that the decisions of the Division Benches
of the Apex Court in Bhaiya Ram Munda
and Dina's cases did
not lay down a law correctly in stating that the enquiry was
permissible and the evidence was admissible within the limits
indicated for the purpose of showing
what an Entry in the Presidential Order was intended to be.
In Milind's case, on
facts, the Apex Court has held that the High Court exceeded its
supervisory jurisdiction by making roving
and indepth examination of the materials
afresh and in coming to the conclusion that 'Koshtis' could be treated as 'Halbas'.
9. Para 36 of the judgment in Milind's
case has been
interpreted by the Full Bench and the Division Benches of this
Court. The same being relevant, is reproduced below :
“36. Respondent No.1 joined the medical course
for the year 198586. Almost 15 years have passed
by now. We are told he has already completed the
course and may be he is practicing as doctor. In this
view and at this length of time it is for nobody's
benefit to annul his admission.
Huge amount is
spent on each candidate for completion of medical
course.
No doubt, one Scheduled Tribe candidate was
deprived of joining medical course by
the
admission given to respondent No.1. If any action is
taken against respondent No.1, it may
lead
depriving the service of a doctor to the society on
whom public money has already been spent.
In these circumstances, this judgment shall not affect
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the degree obtained by him and his practicing as a
doctor. But we make it clear that he cannot claim
to belong to the Scheduled Tribe
covered by the
Scheduled Tribes Order. In other words, he cannot
take advantage of the Scheduled Tribes Order any
further or for any other constitutional
purpose. Having regard to the passage of time, in the given
circumstances, including interim orders passed by this
Court in SLP (C) No.16372/85 and
other
related affairs, we make it clear that the admissions
and appointments that have become final,
shall remain unaffected by this judgment.” 10.
After rejecting the claim of the persons belonging to
the caste 'Koshti' or 'Halba Koshti' to be the part and parcel of
Entry No.19 of 'Halba'/'Halbi' in the Constitutional (Scheduled
Tribes) Order in relation to the
State of Maharashtra, and
declaring the claim of the respondent No.1 to be invalid, the
Apex Court granted him protection from
withdrawal of the benefits of obtaining
M.B.B.S. Degree secured by him. The
Apex Court did not stop at that stage, but proceeded to clarify
the position keeping in view the claims pending for adjudication
in other related affairs that the admissions and appointments
that have become final shall remain
unaffected by this judgment. 11. The decisions of the Division Benches of this Court
in the cases of Rajendra Ramaji Mahisbadwe
v. Joint
Commissioner and Vice Chairman, reported in
2013(3) Mh.L.J. 393, and
Archana Dadarao Pethkar v.
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Vice Chairman, reported in 2013(3) Mh.L.J. 764, take the view,
relying upon the decision of the Full Bench of this Court in the
case of Ganesh Rambhau Khalele v.
State of Maharashtra and others, reported in
2009(2) Mh.L.J. 788, that the relief
of
protection of service after invalidation of the caste claim cannot
be granted by the High Court on the basis of the clarificatory
direction issued by the Apex Court in para 36 of the decision in
the case of State of Maharashtra v. Milind, reported in (2001) 1
SCC 4, to the effect that “the admissions and appointments that
have become final shall remain unaffected by this judgment” in
exercise of the jurisdiction under Article 142 of the Constitution
of India. These judgments also hold
that the protection in
service granted by several other judgments of the Apex Court,
including one in Kavita Solunke's case was in exercise of the
jurisdiction under Article 142 of the Constitution of India, which
is not available to the High Court under Article 226 or 227 of
the Constitution of India. 12. The another
line of decisions in the cases
of Prabhakar Nandanwar v. Joint Commissioner and Vice Chairman
Scheduled Tribe Certificate, Caste Scrutiny Committee and others,
reported in
2013(1) Mh.L.J. 156; A.P. Ramtekakar v. Union of
India and others, reported in 2013(2)
Mh.L.J. 419; Vijaya Nandanwar v. Chief Officer, Municipal Council, Wardha, reported
in 2013(5) Mh.L.J. 153; and
Pradip Gajanan Koli v. State of Maharashtra
and others, reported in 2014(2)
Mh.L.J. 779,
taking the view that the clarificatory direction of the Apex Court
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protection in service granted upon
invalidation of caste claim by the Apex Court in several other
decisions, including the decision in
Kavita Solunke's case lays down a law
under Article 141 of the Constitution
of India,
which need to be followed. 13.
After the order of reference
was passed by the Division Bench in
the present cases on 1102013, there
is another decision of the Apex Court rendered on 12122013 in
the case of Shalini v.
New English High School Association and
others, reported in (2013)16SCC 526. This decision has been
referred to and followed by the Division Bench of this Court in
Mahendrakumar Namdeorao Hedaoo v. Scheduled
Tribe Caste Certificate Scrutiny Committee,
Nagpur and others, reported in
2014(4) Mh.L.J. 958, and the decision of another Division Bench
of this Court in the case of
Rakesh Sukanuji Dafade v. State of
Maharashtra and another, reported in 2014(3) Mh.L.J. 307. Both
these decisions held that the controversy is made clear by the
Apex Court beyond the pale of any doubt and the question as to
whether the decision of the Apex Court in the case of
State of Maharashtra v. Milind and others, reported in
(2001) 1 SCC 4,
lays down a law under Article 141 of the Constitution of India on
the question of granting relief of
protection of service after
invalidation of the caste claim, is no longer
res integra. The decision of the Apex Court in
Shalini's case has been rendered
subsequent to the decisions of the Division Benches of this Court
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hence it will have to be followed to give protection in service.
14.
The decision in Milind's case was delivered on 28
112000 and thereafter the Maharashtra
Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward Category
(Regulation of Issuance and Verification of) Caste Certificate
Act, 2000 (Maharashtra Act No.XXIII of 2001)(“the said Act”)
was brought into force in the State of Maharashtra on 1810
2001 by the notification dated 17102001
published in the official gazette. The
relevant portion of the Statement of
Objects and Reasons of the said Act is reproduced below :
“ It has been brought to the notice
of the Government that the incidents of
procuring false Caste Certificates, in respect of Scheduled Castes,
Scheduled Tribes, Denotified Tribes (Vimukta
Jatis), Nomadic Tribes, Other Backward Classes or
Special Backward Category have reached alarming
figure. Such false Caste Certificates not only enable
the ineligible persons to avail of the concessions and
reservations in the matter of securing employment
or admission in the educational institutions
or
contesting for or being elected to any of the elective
offices reserved for the benefit of
the aforesaid Castes, Tribes and Classes,
but also result in
depriving the genuine members of the said Castes,
Tribes and Classes of the said
concessions and
reservations, thereby defeating the very purpose of
such concessions and reservations.” Making further
reference to the decision of the Apex
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delivered on 1841995 in the case of Director of Tribal Welfare,
Government of Andhra Pradesh v.
Laveti Giri and another, it is stated that
as the existing instructions issued
by the
Government from time to time are found to be inadequate, to
curb this menace, it is decided to
undertake a suitable
legislation for regulating the issue of the Caste Certificate and
Verification of such certificate and also providing for deterrent
punishment for those who indulge in such illegal activity.
15. Section 3 of the said Act deals with application for a
Caste Certificate, and it is reproduced below :
“Application for a Caste Certificate 3.
Any person belonging to any of the Scheduled
Castes, Scheduled Tribes, Denotified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward
Classes or Special Backward Category, required to
produce a Caste Certificate in order to claim the
benefit of any reservation provided to such Castes,
Tribes or Classes, either in any public employment
or for admission into any educational institution, or
any other benefit under any special provisions made
under clause (4) of Article 15 of the Constitution of
India or for the purpose of contesting for elective
post in any local authority or in the Cooperative
Societies; or for purposes specified by
the
Government, shall apply in such form and in such
manner as may be prescribed, to
the Competent
Authority for the issue of a Caste Certificate.”
In terms of Section 3 of the said Act, any person belonging to
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Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward
Classes or Special Backward Category or Classes required to
produce a Caste Certificate in order to claim the benefit of any
reservation provided to such Castes, Tribes or Classes in the
public employment, has to apply to the Competent Authority in
such form and in such manner as is prescribed for issuance of a
Caste Certificate.
The language employed in Section 3, more
particularly the words “required to produce”, clearly suggest the
production after coming into force of the Act.
The provision, therefore, operates from the date of coming into force of the
said Act, i.e. 18112001. 16.
Section 4 of the said Act deals with Caste Certificate
to be issued by Competent Authority. It runs as under :
“Caste Certificate to be issued by
Competent Authority 4. (1) The Competent Authority may,
on an application made to it under
section 3, after
satisfying itself about the genuineness of the claim
and following the procedure as prescribed, issue a
Caste Certificate within such time limit and in such
form as may be prescribed or reject the application
for reasons to be recorded in writing. (2)
A Caste Certificate issued by any person, officer
or authority other than the Competent
Authority shall be invalid. The Caste Certificate
issued by the Competent Authority shall be valid
only subject to the verification and grant of validity
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Under subsection (1) of Section 4 of
the said Act, if the
Competent Authority is satisfied about the genuineness of the
claim, then it may issue such Caste
Certificate in the form prescribed. Subsection (2) of Section 4 of the said Act states
that a Caste Certificate issued by
any person or officer or
authority other than the Competent Authority, shall be invalid.
If further states that the Caste
Certificate issued by the Competent Authority
shall be valid only subject to
the verification and grant of validity
certificate by the Scrutiny Committee. 17. This
requirement of making an application
under subsection (1) of Section 4 of the said Act to the Competent
Authority operates from the date of coming into force of the
said Act. The provision of subsection (2) of Section 4 does not
have the effect of invalidating the Caste Certificate issued prior
to coming into force of the said Act on 18102001, though it
has the effect of invalidating the Caste Certificate issued by any
person, officer or authority other than the Competent Authority
after coming into force of the said Act.
However, the Caste
Certificate – whether issued prior to or after coming into force
of the said Act – remains valid only subject to the verification
and grant of validity certificate by the Scrutiny Committee.
18.
Section 6 of the said Act deals with verification of
Caste Certificate by Scrutiny Committee and subsections (1),
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(2) and (4) being relevant, are reproduced below :
“Verification of Caste Certificate by
Scrutiny Committee 6. (1) The Government shall
constitute by notification in the Official
Gazette, one or more Scrutiny Committee(s)
for verification of Caste Certificates issued
by the Competent Authorities under subsection (1) of section 4 specifying in the
said notification the functions and the
area of
jurisdiction of each of such Scrutiny Committee or
Committees. (2)
After obtaining the Caste Certificate from the
Competent Authority, any person desirous of
availing of the benefits or concessions provided to
the Scheduled Castes, Scheduled Tribes, Denotified
Tribes (Vimukta Jatis), Nomadic Tribes,
Other
Backward Classes or Special Backward Category for
the purposes mentioned in section 3 may make an
application, well in time, in such form and in such
manner as may be prescribed, to the
concerned Scrutiny Committee for the
verification of such Caste Certificate and issue of a validity certificate.
(4) The Scrutiny Committee shall follow such
procedure for verification of the Caste
Certificate
and adhere to the time limit for verification and
grant of validity certificate, as prescribed.”
Whosoever is desirous of availing
of the benefits or concessions provided to
Scheduled Castes, Scheduled Tribes, Denotified
Tribes (Vimukta Jatis), Nomadic Tribes,
Other
Backward Classes or Special Backward Class Category for the
purposes mentioned in Section 3, has to make an application
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form and manner prescribed to the concerned
Scrutiny Committee constituted under subsection
(1) of Section 6 of the said Act for the verification of such Caste
Certificate and issuance of a validity certificate, as contemplated
by subsection (2) of Section 6 of the said Act.
One of the purposes mentioned in Section
3 is to claim benefits of reservation
for such Castes, Tribes, or Classes
in any public
employment. The words “whoever is desirous of availing” used
in subsection (2) of Section 6 read
with the provision of
Section 3 clearly suggest the availment after coming into force
of the Act and hence the provision is prospective in operation.
19.
Section 7 of the said Act deals with confiscation and
cancellation of false Certificate and it is reproduced below :
“Confiscation and cancellation of false
Certificate 7. (1) Where, before or after the commencement
of this Act, a person not belonging to any of the
Scheduled Castes, Scheduled Tribes, Denotified
Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes or Special Backward
Category has obtained a false Caste Certificate to the effect
that either himself or his children belong to such
Castes, Tribes or Classes, the Scrutiny Committee
may, suo motu, or otherwise call for the record and
enquire into the correctness of such certificate and if
it is of the opinion that the certificate was obtained
fraudulently, it shall, by an order
cancel and confiscate the certificate by following
such procedure as prescribed, after giving
the person concerned an opportunity of
being heard, and
communicate the same to the concerned person and
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(2) The order passed by the Scrutiny
Committee under this Act shall be final and shall
not be challenged before any authority
or court except the High Court under
Article 226 of the
Constitution of India.” Subsection (1) of Section 7 of the said Act deals with
the confiscation and cancellation of false Caste Certificate.
It applies to Caste Certificates obtained prior and subsequent to
coming into force of the said Act. It states that if a person not
belonging to any of the Scheduled Castes, Scheduled Tribes, Denotified
Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes or Special Backward
Class Category has
obtained a false Caste Certificate to the effect that he himself or
his children belong to such Castes,
Tribes or Classes, the Scrutiny Committee may
suo motu or otherwise call for the
record and enquire into the correctness of such certificate and if
it is of the opinion that the
certificate was obtained
fraudulently, it shall, by an order, cancel and confiscate the
certificate by following the procedure
prescribed and to communicate the same to
the concerned person or the
concerned authority, if any. 20. Section 10 of the said Act deals with benefits secured
on the basis of false Caste Certificate to be withdrawn, and subsections
(1) and (2) being relevant are reproduced below :
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basis of false Caste
Certificate to be withdrawn 10. (1)
Whoever not being a person belonging to
any of the Scheduled Castes, Scheduled Tribes, Denotified
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 Cooperative 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 withdrawn forthwith.
(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
arrears of land revenue.”
In terms of subsection (1) of Section 10 of the said
Act, whoever not being a person
belonging to any of the Scheduled
Castes, Scheduled Tribes, Denotified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward Classes or
Special Backward Class Category secures
any appointment in any Company, Local Authority or in any other Government or
Corporation owned or controlled by the Government or in any
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“public employment”) against a person 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 discharged from the such employment forthwith
and any other benefits enjoyed or derived by virtue of such
appointment by such person shall be withdrawn forthwith. The
words “secures any appointment” in this
Section shows the prospective nature of the operation of this Section.
21.
Section 11 of the said Act deals with the offences and
penalties and it runs as under :
“Offences and penalties 11. (1) Whoever, (a) obtains
a false Caste Certificate by furnishing
false information or filing false
statement or documents or by any other fraudulent
means; or (b)
not being a person belonging to any of the
Scheduled Castes, Scheduled Tribes, Denotified
Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes or Special Backward
Category secures any benefits or appointments
exclusively
reserved for such Castes, Tribes, or Classes in the
Government, local authority or any other company
or corporation owned or controlled by
the Government or in any Government aided
institution, or secures admission in any educational
institution against a seat exclusively reserved for
such Castes, Tribes or Classes or is elected to any of
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such Castes, Tribes or Classes by producing a false
Caste Certificate; Shall, on conviction, be
punished, with
rigorous imprisonment for a term which shall not
be less than six months but which may extend upto
two years or with fine which shall not be less than
two thousand rupees, but which may extend upto
twenty thousand rupees or both. (2) No court
shall take cognizance of an
offence punishable under this section except upon a
complaint, in writing, made by the
Scrutiny
Committee or by any other officer duly authorised
by the Scrutiny Committee for this purpose.”
Clause (a) of subsection (1) of Section 11 deals with the mode
of obtaining a false certificate, which can be by furnishing false
information or filing false statement or documents or by any
other fraudulent means. Clause (b) pertains to securing of any
benefits or appointments exclusively reserved
for Scheduled Castes, Scheduled Tribes, Denotified
Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes or Special Backward
Class Category in the public employment
by a person not
belonging to such Castes, Tribes or Classes by producing a false
Caste Certificate. 22.
The provision of subsection (1) prescribes the
punishment with rigorous imprisonment for a term which shall
not be less than six months but which may extend up to two
years or with fine which shall not be less than two thousand
rupees, but which may extend up to twenty thousand rupees or
both upon conviction being recorded. Under subsection (2), no
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Court can take cognizance of an offence punishable under subsection
(1), except upon a complaint in writing made by the
Scrutiny Committee or by any other office duly authorized by
the Scrutiny Committee for this purpose. 23.
Section 12 of the said Act deals with the offences
under Section 11 of the Act to be cognizable and nonbailable,
and every offence punishable shall be tried by the Magistrate of
First Class in a summary way and the provisions of Section 262,
except subsection (2) to Section 265, shall, as far as possible,
be applied to such trial. Section 13 deals with the penalty for
intentionally issuing a false Caste Certificate by
a person or authority performing the
functions of Competent Authority
under the Act. The punishment is also the same as is prescribed
under Section 11. Section 14 makes the abatement of offence
punishable. 24.
The entire scheme of the Act shows that after
coming into force of the said Act on 18102001, the condition
precedent to claim the benefits and concessions or appointment
or promotion is the production of caste validity certificate and
no benefits or an appointment in any
public employment
against a post reserved for any of the backward class categories
can be obtained or secured without
production of a caste
validity certificate from the Scrutiny Committee. If this position
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withdrawal of benefits and concessions
secured by the
candidates belonging to any of the backward class categories
after coming into force of the said Act.
25. The position
prevailing prior to the decision in Madhuri
Patil's case on 291994 was that
the benefits or
concessions and the appointments and promotions were made
available in public employment against the posts meant for any
of the categories of backward classes without there being any
condition precedent of producing a caste
validity certificate
from the Scrutiny Committee in support of the caste certificate.
Even after the decision in Madhuri Patil's case, the appointments
were made in public employment against a post reserved for
any of the backward class categories without producing a caste
validity certificate. This was in
terms of para 11 and the guideline No.10 in the decision of the Apex Court in
Madhuri
Patil's case, reproduced earlier in para 6 above.
26.
If a genuine candidate is prevented from getting
admission or employment for want of
validity certificate because of the time consumed in process, then it would cause
great injustice and an irretrievable injury to such candidate or a
person. Such practice is based on the principle that the delay
should not defeat the justice. Though
in the decision of Madhuri Patil's
case two months' time was prescribed for the
Scrutiny Committee to decide the claim, it is noticed that the
claims are not decided for years, may be on some occasion on
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account of the remand of the matter by this Court. The practice
of making provisional appointments still continues even after
coming into force of the said Act. 27.
Section 10 of the said Act regarding the “benefits
secured on the basis of a false
certificate to be withdrawn” operates from the date of coming into force of the said Act on
18112001.
The provision is essentially penal in nature and,
therefore, it shall have no effect on the benefits or appointments
obtained or secured prior to coming into force of the said Act.
We, therefore, subscribe to such a
view expressed by the
Division Bench of this Court in Prashant s/o Haribhau Khawas v.
State of Maharashtra and others, reported in
2008(2) Mh.L.J. 322. The consequences of
discharge from employment or withdrawal of benefits secured or obtained by producing a false
caste certificate shall not operate in
respect of benefits or appointments obtained or secured prior to coming into force of
the said Act. Even none of
counsels appearing for the
contesting parties have urged that Section 10 would operate in
respect of such appointments or benefits. 28.
If the provision of subsection (2) of Section 4 does
not have the effect of automatically
invalidating the Caste
Certificate issued prior to the commencement of the said Act, as
has been held earlier, does it mean that even if there is a false
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appointment in public employment, such certificate shall remain
valid forever and the person, who has secured the benefits on
the basis of such certificate, shall
remain eligible to secure
further benefits after coming into force of the said Act?
Our
answer would be in the negative. The provision of Section 10
the said Act would become applicable as soon as any such claim
for securing the benefits or appointment is made by producing a
false Caste Certificate against the post reserved for any of the
backward class categories, after coming into force of the said
Act. A Caste Certificate issued prior or after coming into force
of the said Act becomes valid only upon the grant of validity
certificate by the Scrutiny Committee. Merely because the Caste
Certificate was obtained prior to coming into force of the said
Act, the consequences provided under Section
10 cannot be prevented. 29.
In case of appointment secured in public employment
after coming into force of the said Act by producing a false
Caste Certificate, the provision of subsection (1) of Section 10
shall come into operation only on
cancellation of the Caste Certificate by the Scrutiny Committee. Under Section 7 of the
said Act, the Scrutiny Committee is empowered to enquire into
the correctness of the Caste Certificate obtained before or after
coming into force of the said Act. The Scrutiny Committee is
empowered to cancel the Caste Certificate after recording the
specific findings – (i) that a person has obtained a false Caste
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Classes, and (ii) that such certificate was obtained fraudulently.
In the absence of such findings, there cannot be a cancellation
of false Caste Certificate, though no benefits or appointment can
be obtained and secured upon mere invalidation of the Caste
Claim by the Scrutiny Committee.
Thus, the provision of
Section 7 of the said Act is an integral part of subsection (1) of
Section 10 and it will have to be read accordingly.
30. In the absence of applicability of subsection (1) of
Section 10 to any benefit or an appointment or employment
secured prior to coming into force of the said Act, by production
of a false Caste Certificate, the
guideline Nos.14 and 15 in Madhuri
Patil's case would operate. In terms
of guideline
No.14, in case the certificate obtained or social status claim is
found to be false, then the appointing authority is required to
cancel such appointment or to debar
the candidate from
continuing in office in a post. Thus, the guidelines in Madhuri
Patil's
case and the entire scheme of the Act in unequivocal
terms indicate recording of findings (i)
that the person has
secured the benefits, concessions, appointment or promotion in
public employment for a post reserved for any of the backward
class category by producing a Caste Certificate showing that he
belongs to such backward class category for which such benefits
are meant, and (ii) that the Committee forms an opinion that
the certificate produced was a false Caste Certificate obtained
fraudulently by adopting means known to be fraudulent in law,
and, therefore, the same needs to be cancelled and confiscated.
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The power to issue a Caste Certificate under subsection
(1) of Section 4 by the Competent Authority and the
power of the Scrutiny Committee to
issue a caste validity certificate under subsection (2) of Section 6 of the said Act
though are quasi judicial in nature, there is neither any lis nor
any contesting party involved nor the rival claims are required
to be decided. The object and purpose of it, as appears from
objects and reasons of the said Act, is to regulate issuance of
such certificates and to enable and see that only eligible persons
avail the concessions and reservations and they are not deprived
of it, so as to defeat the purpose. The grant or rejection of the
Caste Certificate or the caste validity certificate depends upon
the satisfaction of the concerned authorities based on objective
assessment of the material produced on record by the claimant
or collected by the authorities concerned after an enquiry into
such claim in accordance with the rules prescribed.
32. The enquiry by the
Scrutiny Committee is of a summary nature
and merely to ascertain the
genuineness or validity of the claim or an eligibility of a person to make such
claim based upon the correctness of the information furnished and
the material placed on record. This is the scope of enquiry or
scrutiny laid down under subsection (2) of Section 6 of the said
Act read with subRule 9(a) of Rule
12 of the Maharashtra Scheduled Tribes
(Regulation of Issuance and Verification
of) Certificate Rules, 2003. It is not the scope of the scrutiny or the
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object and purpose of the enquiry by the Scrutiny Committee to
satisfy itself or find out whether a Caste Certificate produced is
false, in the sense that it is fraudulent or to hold a person guilty of
the offences under Section 11 of the said Act and/or to punish the
claimant either for producing a false
Caste Certificate or for
securing an employment on the basis of such certificate.
33. Under clause (a) of subsection (1) of Section 11 of
the said Act, mere obtaining of a false Caste Certificate by a
mode specified therein, viz. by furnishing false information or
filing false statement or documents or by any other fraudulent
means, has been made an offence, whereas under clause (b)
therein, securing of any benefits or appointments reserved for
such Castes, Tribes or Classes in
public employment by
producing a false Caste Certificate by a person not belonging to
such Castes, Tribes or Classes, has
been made an offence.
Clause (a) takes within its sweep the obtaining of false Caste
Certificate prior or after coming into
force of the said Act, whereas clause
(b) shall be attracted if the
employment is
secured after coming into force of the said Act.
34.
Section 12 of the said Act deals with the offences
under the Act to be cognizable and nonbailable.
Clause (b)
therein states that every offence punishable shall be tried by any
Magistrate of First Class in a summary way and the provisions
of Section 262, except subsection (2)
of Section 265, both
inclusive of the Criminal Procedure Code, 1973, shall, as far as
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such trial. It is, therefore, the
Judicial Magistrate First Class, who is conferred with the power
to hold any person guilty of obtaining a false Caste Certificate
by furnishing false information or filing
false statement or
documents or by any other fraudulent mean, in terms of clause
(a) of subsection (1) of Section 11. He is further empowered
under clause (b) therein to hold guilty any person not being a
person belonging to any of the categories of backward classes
secures any benefit or appointment exclusively reserved for such
classes in the public employment. 35.
The cognizance of such offences under Section 11 of
the said Act can be taken only upon a complaint by the Scrutiny
Committee. If during the course of enquiry under subsection
(2) of Section 6 of the said Act, the Scrutiny Committee finds
that the claimant has obtained a
false Caste Certificate, as
contemplated under Section 11 of the said Act, then it has to
lodge a complaint with the Judicial Magistrate, First Class, who
is empowered to impose the punishment.
Such finding about
obtaining of a false Caste Certificate or securing of benefits by
producing a false Caste Certificate would only be considered as
prima facie in nature subject to outcome of any prosecution to
be launched under Section 11 of the said Act. It is, therefore,
clear that in the absence of any complaint being lodged with the
Magistrate, as required by subsection (2) of Section 11 of the
said Act, the proceedings cannot be taken to their logical end so
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considered as one of a moral
turpitude resulting into the
consequences of disqualification to hold any office of public, as
has been stated in the guideline No.14 in Madhuri Patil's case.
Upon acquittal from the offences, the claimant would normally
be entitled to restoration of benefits, if at all, he loses by virtue
of an action under Section 10 of the said Act.
36. It is urged that the provision of Section 10 of the
said Act is independent empowering discharge
from
employment and withdrawal of benefits secured by producing a
false Caste Certificate and the consequences provided therein
flow immediately upon invalidation of a Caste Certificate, which
is found to be false, means not
found to be true or not
substantiated. It is urged that Section 10 cannot be read to hold
that there is an element of fraud, deceit or mens rea involved.
The reliance is placed upon the decision of the Full Bench of
this Court in the case of Ramesh
Suresh Kamble v. State of
Maharashtra and others, reported in 2008(2) ALL MR 572.
37.
In Ramesh Kamble's case, the petitioner contested the
election as a Councillor of the Municipal Corporation on the
basis of his nomination after coming
into force of the Maharashtra Scheduled Castes,
Scheduled Tribes, Denotified Tribes (Vimukta
Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Act, 2000 (Maharashtra
Act No.XXIII of 2001) in a seat reserved for Scheduled Castes
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Caste Certificate, which was invalidated by
an order of the Scrutiny Committee.
The petitioner was disqualified under
Section 16(1C)(a) of the Mumbai Municipal
Corporation Act, 1888 read with Section
10(4) of the Maharashtra Act No.XXIII of 2001 following the
decision of the earlier Full Bench in the case of
Sujit Vasant Patil v.
State of Maharashtra and others, reported in
2004(3)
Mh.L.J. 1109, wherein it was held that the disqualification is the
automatic consequence provided under subsection
(4) of
Section 10 of the Maharashtra Act No.XXIII of 2001.
38.
The Full Bench in Ramesh Kamble's case interpreted
the provisions of Sections 6(2) and 7(1) of the Maharashtra Act
No.XXIII of 2001. It has been held that upon conjoint reading of
these provisions, it becomes very clear that the Caste Certificate
is cancelled or confiscated when the Scrutiny Committee is of
the opinion that the certificate has been obtained fraudulently
by the applicant.
It further holds that conversely, once the
certificate is obtained by the applicant
from the Competent
Authority is cancelled and confiscated, logically what follows
from it is that the Caste Scrutiny Committee was not satisfied
with the correctness of the certificate
obtained from the Competent Authority,
though the Caste Scrutiny Committee
may not say in so many words that such certificate has been
obtained fraudulently. The Full Bench considered the meaning
of the term 'false' as erroneous, untrue, the opposite of correct,
or true, and it is held that the term 'false' does not necessarily
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involve turpitude of mind. The Full Bench further held that the
enquiry under Section 7(1) of the said Act is focussed on the
correctness of the Caste Certificate issued by the Competent
Authority on the application made by
the concerned person disclosing certain
information. If the Caste Certificate
is
cancelled by the Scrutiny Committee, it obviously means that
the Caste Certificate has been obtained by that person from the
Competent Authority on incorrect facts or
erroneous
representation. There may not be deliberateness in it and there
is failure on the part of the candidate to establish his caste claim
before the Scrutiny Committee and the
declaration that the
certificate obtained from the Competent Authority is invalid and
thereby cancelled, leads to necessary inference that such person
made a false claim of his caste
belonging to the reserved category to
which he did not belong and thus
incurred the disqualification. 39.
The Full Bench in Ramesh Kamble's case overruled
the decision of the Division Benches of this Court in the cases of
Surendra Hanmanloo Gandam v. State of
Maharashtra and
others, reported in 2006(1) Mh.L.J. 308, and Mohan Parasnath
Goswami v. Committee for Scrutiny of
Caste Certificates and
others, reported in 2003(5) Mh.L.J. 707. In the decision of the
Division Bench of this Court in the case of
Surendra Gandam,
the provision of Section 10 of the said Act and the Government
Resolution dated 1561995 granting protection
to the
appointments and promotions made before 1561995, fell for
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consideration. The Division Bench in Suresh Gandam's case took
the view in paras 18 and 19 as under :
“18. In our view, if a claimant fails to substantiate
and establish his caste claim because of insufficiency
of evidence or lack of knowledge of
traits or
characteristics of his tribe, he cannot be termed as a
person who has obtained and produced a false caste
certificate. The phraseology 'false caste certificate' or
'a certificate obtained fraudulently' used in section 7
of the Act cannot and does not cover bona fide cases
where a claimant fails to establish his caste claim.
To hold that a person has obtained a 'false caste
certificate' or a 'certificate fraudulently', there need
to exist an element of mens rea or a guilty mind and
only on the establishment of the existence of the said
element, that a person could be branded as one who
has obtained false caste certificate.
It is in this sense, that we have
observed in proposition “C”
above, that a person can be denied the benefit of
Government Resolution dated 1561995, if he has
procured the appointment on the basis of false caste
certificate.” “19. Ordinarily the proceedings before
the
Committee are for adjudication of the caste claim
but in some cases, the Committee may prima facie
find that the claim is false, on the ground that the
certificate itself is forged or that the certificate is
obtained fraudulently, etc. then in that situation,
the claimant will have to be put on notice in that
regard and afforded an opportunity of being heard
to explain as to why the Committee should not hold
the claimant guilty of producing a false, forged or
fabricated certificate. Solely on the ground that the
claim is invalidated, the Scrutiny Committee will
not be justified in reaching a conclusion that the
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40.
In a recent decision of the Apex Court in Shalini v. New
English High School Association and others,
reported in (2013)16SCC526, the provision of Section 10 of the said Act read
with the Government Resolution dated 1561995
granting
protection in employment secured prior to coming into force of the
said Government Resolution, was considered. After quoting Section
10 of the said Act, in para 7, the Apex Court has held as under :
“7. ... In essence, the section cancels
with preemptive effect any benefit
that may have been
derived by a person based on a false caste certificate.
Whilst “Caste Certificate” has been defined in section
2(a) of the 2000 Act, “False Caste Certificate” has
not been dealt with in the Definitions clause. There
is always an element of deceitfulness, in order to
derive unfair or undeserved benefit whenever a false
statement or representation or stand is adopted by
the person concerned. An innocent statement which
later transpires to be incorrect may be seen as false
in general sense would normally not attract punitive
or detrimental consequences on the person making it, as it is one made by error. An untruth coupled
with a dishonest intent however requires
legal retribution. It appears to us that section 10 applies
in the Dattatray mould only. ...”
It is thus clear that the Apex Court has in unequivocal terms
held that there is always an element of deceitfulness in order to
derive unfair or undeserved benefit whenever a false statement
or representation or stand is adopted by the person concerned.
An innocent statement, which later transpires to be incorrect,
may be seen as false in general sense would normally not attract
punitive or detrimental consequences on the person making it,
as it is one made by error. An untruth coupled with a dishonest
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intent however requires legal retribution. In para 8 of the said
decision, the Apex Court has set aside the view taken by the
learned Single Judge of this Court, which was confirmed by the
Division Bench refusing to grant protection in service only upon
invalidation of the caste claim by the Scrutiny Committee and it
is held that since there is no falsity in the claim, the petitioner
cannot be viewed as having filed a false Caste Certificate, the
rigors of Section 10 of the said Act would not apply to her. The
Court poses a question – Can it,
therefore, seriously be
contended that a person, who has honestly, in contradistinction
with falsely, claimed consanguinity with a certain group which
was later on found not to belong to an envisaged Scheduled
Tribe but to a special backward class be visited with termination
of her employment?
It answers holding that such is not the
intent of the law and certainly was not what the ThreeJudge
Bench was confronted with in Union of
India v. Dattatraya
Namdeo Mendhekar, reported in (2008) 4 SCC 612.
41. The decisions rendered by the two Full Benches of
this Court one in the case of
Sujit Vasant Patil v. State of
Maharashtra and others, reported in 2004(3) Mh.L.J. 1108; and
another in the case of Ramesh Suresh
Kamble v. State of Maharashtra and
others, reported in 2007(1) Mh.L.J. 423,
overruled the decision of the Division Bench of this Court in
Surendra Gandam's case. The ratio of the decision of the Apex
Court in Shalini's case is in conformity with the view taken by
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The law laid down by the Full Benches in Sujit Patil and Ramesh
Kamble's
cases to the effect that it is not necessary that such
claim or declaration must involve turpitude of mind and there
may not be any deliberateness in it and mere failure to establish
caste claim leads to an inference that such person made a false
claim belonging to the reserved category to which he did not
belong, is directly in conflict with the ratio of Shalini's case.
42.
With greatest respect to the learned Judges of the
two Full Benches in Sujit Patil and Ramesh Kamble's cases, we
are of the view that both these
decisions stand impliedly overruled and remain
no longer a good
law in view of the
decision of the Apex Court in Shalini's
case. We further hold that the law
laid down in Surendra Gandam's case,
which follows the decisions of the twoJudge Benches in the case of R.
Vishwanath Pillai v. State of Kerala, reported in
(2004) 2 SCC
105; Bank of India v. Avinash D. Mandivikar, reported in (2005)
7 SCC 690; Additional General Manager/Human Resource BHEL
v. Suresh Ramkrishna Burde, reported in (2007) 5 SCC 336; and
State of Maharashtra v. Sanjay K. Nimje, reported in (2007) 14
SCC 481 is in conformity with the
ratio of the decision in
Shalini's case, holds the field. 43. The decision of Full Bench of this Court in Ganesh
Khalale's case and the decisions of the Division Benches of this
Court in Rajendra Mahisbadwe and Archana
Pethkar's cases
essentially proceed on the basis of the decision of the Apex
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Union of India v. Dattatray Mendhekar,
reported in (2008) 4 SCC 612,
to hold that the directions contained in para 36 in the judgment in
Milind's case to the
effect “that the admissions and appointments that have become
final shall remain unaffected by this judgment” was in exercise
of the jurisdiction under Article 142 of the Constitution of India
by the Apex Court. The Division Bench
judgments proceed
further to hold that even the protection granted in service by
the decision of the Apex Court in Kavita Solunke's case was one
granted by the Apex Court in exercise of its jurisdiction under
Article 142, which is not available to the High Court under
Article 226 or 227 of the Constitution of India.
44.
The decision in Shalini's case puts the controversy
beyond the pale of any doubt on the aspect of the ratio of the
threeJudge Bench decision
of the Apex Court in Dattatraya
Mendhekar's case, which follows the earlier decisions of the twoJudge
Benches in Bank of India v.
Avinash D. Mandivikar, reported in (2005)
7 SCC 690; and Additional General
Manager/Human Resource BHEL v. Suresh Ramkrishna
Burde,
reported in (2007) 5 SCC 336. It has been held in Shalini's case
that these decisions shall have no application to the cases where
an innocent statement, which later transpires to be incorrect,
may be seen as false, in general
sense would normally not attract punitive
or detrimental consequences on the
person
making it, as it is one made by error, and in the absence of an
element of deceitfulness in order to derive unfair or undeserved
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representation or stand is
adopted by the person concerned, the rigors of Section 10 of the
said Act would not apply. 45.
The decisions of the Apex Court
in the cases of Yogesh Ramchandra Naikwadi v. State of Maharashtra, reported
in (2008) 5 SCC 652; Regional Manager, Central Bank of India v.
Madhulika Guruprasad Dahir and others,
reported in JT 2008(8) SC 265; and
Raiwad Manojkumar Nivruttirao v. State of Maharashtra and another, reported in (2011) 9 SCC
798, follow some or the other decisions relied upon in Dattatray
Mendhekar's case, denying the protection.
All these decisions
stand on a totally different footing. 46.
The Apex Court in Shalini's case
considered the earlier decisions in
State of Maharashtra v.
Milind and others, reported in
(2001) 1 SCC 4; R. Vishwanatha Pillai
v. State of
Kerala, reported in (2004) 2 SCC 105; State of Maharashtra v.
Sanjay K. Nimje, reported in (2007)14
SCC 481, State of
Maharashtra v. Om Raj, reported in (2007) 14 SCC 488; Raju
Ramsing Vasave v. Mahesh Deorao Bhivapurkar,
reported in (2008) 9 SCC 54,
Punjab National Bank v. Vilas Bokade and
another, reported in
(2008)14 SCC 545; Civil Appeal No.7375
of 2000, decided on 12122000; and Kavita Solunke v. State of
Maharashtra and others, reported in (2012) 8 SCC 430, wherein
the Apex Court granted protection in service even after
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invalidation of the caste claim by the Scrutiny Committee.
In Shalini's
case, the Apex Court further held that if the threeJudge
Bench decision in Dattatray Mendhekar's case wanted to
overrule the other two Benches, it was competent to do the
same and no presumption can be drawn that Dattatray a threeJudge
Bench decision was of the opinion that the earlier twoJudge
Bench decision had articulated an incorrect interpretation
of the law. 47.
The decision of the High Court refusing to grant
protection has been set aside by the
Apex Court in Kavita
Solunke's case. The Apex Court noticed the prevailing confusion
arising out of different circulars and instructions on the question
of Halba Koshti being Scheduled Tribe. In the said background,
the Apex Court holds that even if the appellant therein was
found to be a Koshti and not
Halba by the Verification
Committee, she was entitled to protection against ouster. It is
held that the Constitution Bench had in Milind's case noticed the
background in which the confusion had
prevailed for many
years and the fact that the appointments and admissions were
made for long time treating Koshti as
Scheduled Tribe and
directed that such admissions and appointments wherever the
same had attained finality, will not be affected by the decision
in Milind's case. It holds that following the said principle, the
Division Bench of the Apex Court
eventually decided the
connected matters in State of Maharashtra v. Om Raj, reported
in
(2007) 14 SCC 488, granting benefit of protection against
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ouster to some of the respondents on the authority of the view
taken in Milind's case. From the decision of the Apex Court in
Kavita Solunke's case, it can be gathered that the protection
granted in Milind's case would not be available where any fraud
or any fabrication or any misrepresentation is made with a view
to obtain an undeserved benefit in the matter of appointment.
If there is no accusation that the certificate was false, fabricated
or manipulated by concealment or otherwise,
the refusal of benefit
flowing from the decision in Milind's
case may not be justified. 48.
Again in Shalini's case, the decisions of the learned
Single and of the Division Benches refusing to grant protection
were set aside by the Apex Court.
Following the decision in Kavita Solunke's case, the Apex Court has held that any further
analysis would make the present determination avoidably prolix
and, therefore, an endeavour is made to cull out the principles
relevant for deciding such like conundrums. These are – (a) If
any person has fraudulently claimed to belong to a Scheduled
Caste or Scheduled Tribe and has
thereby obtained employment, he would be
disentitled from continuing in
employment. The rigor of this conclusion has been diluted only
in instances where the Court is confronted with the case of
students who have already completed their studies or are on the
verge of doing so, towards the whom
sympathy is
understandably extended; (b) Where there is some confusion
concerning the eligibility to the benefits flowing from Scheduled
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Caste or Scheduled Tribe status, such as issuance of relevant
certificates to persons claiming to be 'Koshtis' or 'Halba Koshtis'
under the broadband of 'Halbas', protection of employment will
be available with the rider that these persons will thereafter be
adjusted in the general category thereby
rendering them ineligible to further benefits in the category of Scheduled Caste
or Scheduled Tribe as the case may be; and (c) this benefit
accrues from the decision of this
Court inter alia in Raju Ramsing Vasave
v. Mahesh Deorao Bhivapurkar, 2009(1)
Mh.L.J. (S.C.) 1 = (2008) 9 SCC 54, which was rendered under
Article 142 of the Constitution of India.
Realising the likely confusion in the
minds of even honest persons the
Resolutions/Legislation passed by the State
Governments should spare some succour to this section of persons. The Apex
Court further holds that it is not the intent of law to punish an
innocent person and subject him to
extremely harsh
punishment. It holds that on one bank of Rubicon are the cases
of dishonest and mendacious persons who
have deliberately claimed consanguinity with
Scheduled Castes or Scheduled
Tribes, etc., whereas on the other bank are those marooned
persons who honestly and correctly claimed
to belong to a
particular Scheduled Caste/Scheduled Tribe but were later on
found by the relevant Authority not to fall within the particular
group envisaged for protected treatment. 49.
In Milind's case, the direction is in two parts – the
first one was to save the admissions and degrees secured, and
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nature invoking the doctrine of
prospective overruling to save the admissions and appointments
that have become final to remain unaffected
by the said judgment. The doctrine
of prospective overruling has been
considered by the Apex Court in the case of
M.A. Murthy v.
State of Karnataka and others, reported in
(2003) 7 SCC 517.
The relevant portion in para 8 of the said decision is reproduced
below : “8. The learned counsel for the
appellant
submitted that the approach of the High Court is
erroneous as the law declared by this
Court is
presumed to be the law at all times. Normally, the
decision of this Court enunciating a principle of law
is applicable to all cases irrespective of its stage of
pendency because it is assumed that
what is
enunciated by the Supreme Court is, in fact, the law
from inception. The doctrine of
prospective overruling which is a feature of
Americal jurisprudence is an exception to
the normal principle of law, was imported and applied for the
first time in L.C. Golak Nath v. State of Punjab (AIR
1967 SC 1643). In Managing Director, ECIL v. B.
Karunakar [(1993) 4 SCC 727] the view
was adopted.
Prospective overruling is a part of the
principles of constitutional canon of interpretation
and can be resorted to by this
Court while superseding the law declared by it earlier.
It is a
device innovated to void reopening of settled issues,
to prevent multiplicity of proceedings, and to avoid
uncertainty and avoidable litigation. In
other
words, actions taken contrary to the law declared
prior
to the date of declaration are validated
in
larger public interest. The last as declared applies
to future cases. (See Ashok Kumar Gupta v. State of
U.P.(1997) 5 SCC 201, and Baburam v.
C.C. Jacob(1999) 3 SCC 362). It is for this Court to
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indicate as to whether the decision in question will
operate prospectively. In other words, there shall be
no prospective overruling, unless it is so indicated in
the particular decision.”
The doctrine of prospective overruling, which is a feature of
American jurisprudence, is an exception to the normal principle
of law. It is held in the aforesaid judgment that the prospective
overruling is a part of the principles of constitutional canon of
interpretation and can be resorted to
by this Court while superseding the law
declared by it earlier. It is
a device innovated to avoid reopening
of settled issues, to prevent multiplicity of
proceedings, and to avoid uncertainty
and avoidable litigation. 50. In the subsequent decision of the Apex Court in the
case of P.V. George and others v. State of Kerala and others,
reported in
(2007) 3 SCC 557, after following the aforesaid
decision, the decision of House of
Lords in National
Westminister Bank Plc. v. Spectrum Plus Ltd., reported in (2005)
3 WLR 58, has been considered in
which the doctrine of
prospective of overruling is explained. It is stated therein that
the prospective overruling takes several different forms and the
ruling applies only to transactions or happenings after the date
of the court decision.
All transactions entered into, or events
occurring, before that date continue to be governed by the law
as it was conceived to be before the court gave its ruling. The
other form discussed is that the ruling in its operation may be
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retrospective in its effect as
between the parties to the case in which the ruling is given. Or
the ruling may be prospective and, additionally retrospective as
between the parties in the case in
which the ruling was given and also as
between the parties in any other
cases already pending before the courts. 51.
In Milind's case, the law prevailing as pronounced by
the Apex Court on earlier occasions in
Bhaiya Ram Munda v.
Anirudh Patar and others, reported in (1971) 1 SCR 804, and
Dina v. Narayan Singh, reported in 38 ELR 212, was overruled
by the Constitution Bench, and to
avoid uncertainty,
multiplicity of litigation, and reopening of the settled issues, the
direction is issued that all admissions and appointments that
have become final shall remain unaffected
by the said judgment. In the absence of such a direction, the judgment
would have operated retrospectively affecting
all admissions
and appointments that had become final, creating uncertainty,
instability and chaotic situation.
Such direction is, therefore, binding on
all the Courts and accordingly it is
expected to decide the cases.
The doctrine of prospective overruling can
also be considered to be a part of judicial legislation and has,
therefore a binding effect under Article 141 of the Constitution
of India so as to take care of the transitory situation like the
laws made by the Parliament or the State Legislatures to save
the past transactions and to prohibit
their reopening of the
concluded issues on the basis of new enactment.
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We are, therefore, of the view that the ratio of the
Full Bench decision in Ganesh Rambhau
Khalele v. State of
Maharashtra and others, reported in
2009(2) Mh.L.J. 788, in
holding that the clarificatory direction issued in
Milind's case “that the admissions and appointments that have become final
shall remain unaffected by this judgment” was one issued under
Article 142 and it was not the direction under Article 141 of the
Constitution of India, runs contrary to the ratio of the decisions
of the Apex Court, more particularly the last two decisions of
the Apex Court in the cases of Kavita Solunke and Shalini, and
hence it remains no longer good law and a binding precedent.
Consequently, we overrule the decisions of the Division Benches
of this Court in Rajendra Ramaji
Mahisbadwe v. Joint
Commissioner and Vice Chairman, reported in
2013(3) Mh.L.J. 393; and
Archana Dadarao Pethkar v.
Joint Commissioner and
Vice Chairman, reported in
2013(3) Mh.L.J. 764. We confirm
the view taken by the other Division Benches of this Court in the
cases of Prabhakar Nandanwar v.
Joint Commissioner and Vice Chairman
Scheduled Tribe Certificate, Caste Scrutiny Committee
and others, reported in 2013(1) Mh.L.J.
156; and Mahendrakumar Namdeorao Hedaoo v.
Scheduled Tribe Caste
Certificate Scrutiny Committee, Nagpur and others, reported in
2014(4) Mh.L.J. 958, which is in conformity with the ratio of
the decisions of the Apex Court in Kavita Solunke and Shalini's
cases. So far as the decisions of the Division Benches of this
Court in the cases of Vijaya Deorao Nandanwar v. Chief Officer,
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Municipal Council, Wardha, reported in
2013(5) Mh.L.J. 153; Pradip Gajanan Koli v.
State of Maharashtra, reported in
2014(3) Mh.L.J. 779; and
Rakesh Sukanuji Dafade v. State of
Maharashtra, reported in
2014(4) Mh.L.J. 307, are concerned,
we concur with the view to the extent it is in conformity with
the decisions of the Apex Court in Kavita Solunke and Shalini's
cases. 53.
In view of above, we answer question No.1 in the
affirmative, holding that the relief of protection of service after
invalidation of caste claim can be granted by the High Court on
the basis of the decision of Hon'ble Supreme Court in the case of
Kavita Solunke v. State of Maharashtra and others, reported in
(2012) 8 SCC 430, and the subsequent decision in the case of
Shalini v. New English High School
Association and others, reported in (2013)16SCC526.
54. We are conscious of the position of law that the
High Court in exercise of its jurisdiction under Articles 226 and
227 of the Constitution of India cannot pass the orders, which
the Apex Court can pass in exercise of its jurisdiction under
Article 142 of the Constitution of India. Hence, the distinction
between the two will have to be understood and kept in mind.
The glareing instances of exercise by the Apex
Court under Article 142 of the Constitution
of India are reflected in the
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Vishwanatha Pillai and Yogesh Ramchandra Naikwadi. In spite
of recording a finding that the admissions were secured and the
degrees were obtained as a result of the fraud practised, the
power under Article 142 of the Constitution of India is invoked
to grant protection with certain conditions. Many a time, after
declaring the law, the Apex Court in the operative part of the
judgment gives some directions, which may
either relax the
application of law or exempt the case on hand from the rigor of
the law in view of the peculiar
facts or in view of the uncertainty of law till then, to do complete justice, as has been
held by the Apex Court in the case of Indian Bank v. ABS Marine
Products Pvt. Ltd., reported in 2006(5) ALL MR (SC) 162. The
relief granted is restricted only to the persons in whose
cases such orders are passed. The Court, therefore, should be careful
to ascertain and follow the
ratio decidendi and not the relief
given under Article 142 of the Constitution of India. It is not
the jurisdiction vested in the High Court under Article 226 or
227 of the Constitution of India to
grant protection in employment after
recording a specific finding that the
employment was secured by practising a fraud or to relax the
rigor of law and grant relief. We, therefore, do not subscribe
the view taken by the Division Benches in the cases of
Vijaya
Deorao Nandanwar v. Chief Officer, Municipal Council, Wardha,
reported in 2013(5) Mh.L.J. 153, and Rakesh Sukanuji Dafade v.
State of Maharashtra and another, reported in 2014(3) Mh.L.J.
307, to the extent it is held that the direction issued by the Apex
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Constitution of India is the law laid down, which is binding, and
need to be followed. We, therefore, overrule the said view to
that extent. 55.
We are informed at the bar that while answering
question No.1, the Full Bench is also expected to answer the
questions – (a) Whether the cases of persons belonging to the
caste Special Backward Category, other than Koshti or Halba
Koshti, are entitled to the same protection as has been granted
to the persons belonging to caste Koshti or Halba Koshti on the
basis of the decision in Milind's
case?, and (b) Whether the protection granted
in Milind's case becomes available even
without going through the process of scrutiny
of caste/tribe claim by the Scrutiny
Committee under subsection (2) of
Section 6 of the said Act? 56.
In the decision of the Division Bench of this Court in
A.P. Ramtekkar and others v. Union of
India, reported in 2013(2) Mh.L.J. 419,
this Court has granted protection in
service to the persons belonging to Halba Koshti, Thakur, Dhoba
and Gowari castes on the basis of the decisions of the Apex
Court in Milind and Kavita Solunke's
cases, relying upon the
decision of the Apex Court in the case of Dattu Namdeo Thakur
v. State of Maharashtra, reported in
(2012) 1 SCC 549. The
said decision also holds that the decision of the Full Bench in
Ganesh Khalele's case is not in consonance with the decision of
the Constitution Bench in Milind's case.
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service has been granted even without undergoing the scrutiny
of the caste claim by the Scrutiny
Committee to find out
whether those persons belong to Scheduled Tribes or not. The
Division Bench holds that we find that apart from it being an
empty formality, it would unnecessarily increase the workload of
the Committees, which are already overburdened.”
The decision
of the another Division Bench of this Court in Pradip Gajanan
Koli v. State of Maharashtra, reported in 2014(2) Mh.L.J. 779,
holds in para 26 that the case of A.P. Ramtekkar is decided in
the facts of the case and the direction in the case of Dattu relied
upon in the said case is in exercise of powers under Article 142
of the Constitution of India and it does not notice that the
decision in the case of Kavita Solunke is confined to those who
were claiming to be Halbas. The Division Bench in Pradip Koli's
case holds that the decision in A.P.
Ramtekkar's case is,
therefore, not a binding precedent. 57. Now, we deal with the question No.(a) in para 55 of
granting protection to persons of Special Backward Category
other than “Koshti” and “Halba Koshti”. While tracing out the
history of the litigation, in initial paras we have noticed that the
controversy is triggered as a result of the decision of the Apex
Court in Madhuri Patil's case. It
was a case where the candidates
belonging to Other Backward Class category
of
Hindu Koli claimed the benefits meant for the Scheduled Tribes
category as the members of a subcaste
of Mahadeo Koli, a Scheduled Tribe.
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rendered on 291994.
As a fall out of the said decision, the
State Government found that there were
several persons
belonging to different castes and claiming to be the members of
the said caste of main Scheduled
Tribes included in the
Constitution (Scheduled Tribes) Order, 1950 in relation to the
State of Maharashtra, who started facing difficulties of ouster
from the employment in spite of
rendering several years of service and their appointments having attained the finality. By
issuing the Government Resolution dated 1561995, all such
castes identified to be similarly situated, were grouped together
as a separate category of Special
Backward Class providing them 2% reservation in the public employment. The following
are the castes included in the said Government Resolution.
S.No. Name of the Caste. 1. Govaris Caste. 2.
Mana caste. 3.
1. Koshti, 2. Halba Koshti, 3. Halba Caste, 4. Sali, 5.
Lad Koshti, 6. Gadhewal Koshti, 7.
Deshkar, 8. Salewar, 9. Padamshali, 10.
Devang, 11. Kachi Bande, 12. Patvis, 13.
Sarsale, 14. Lade, 15.
Jainkoshti.
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3. Ahir Koli, 4. Khandeshi Koli, 5.
Pankoli, 6.
Chandrakant Koli, 7. Ghubale Koli, 8. Panbhare Koli,
9. Suryawanshi Koli, 10. Mangala Koli, 11. Sonkoli,
12. Daiti Koli, 13. Sarbi, 14. Kolis engaged in 'Danger'
cultivation in the districts of Nasik,
Dhulia and Jalgaon. 5.
1. Munnerwar, 2. Munnurwar, 3. Munnur, 4. Telgu
Munnur,5. Munnurwar Telgu, 6. Munnarkap, 7.
Kapewar, 8. Telgu Kapewar, 9. Munnarwad,
10. Telgu Fulmali 58.
Para 4 of the Government Resolution
dated 156
1995, which is translated, is reproduced below :
“4. The reservation given to the abovementioned
'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 the category
who have prior to this on the basis of Scheduled
Tribe certificate obtained admission in the
Government, semigovernment services on promotion, they should not be removed from this
promotion or service.”
Perusal of the aforesaid provision of the Resolution shows that
the instructions
are issued that the persons/candidates, who
joined the Government service by producing a Caste Certificate
belonging to Scheduled Tribe category and
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promoted, should not be removed from service or reverted from
the post. The aforesaid position was further clarified in another
Government Resolution dated 3062004, and clause (a) therein
being relevant is reproduced below : “(a) The nontribals who have received recruitment
promotion in the government/semigovernmental services
on the reserved seats for the
Scheduled Tribes prior to 1561995, 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.”
In terms of the aforesaid Resolution, the nontribals, who have
received the promotion against the post reserved for Scheduled
Tribes prior to 1561995 neither to be removed from service
nor to be demoted from the post to which they were promoted.
However, these persons should be shown in the constituent to
which they belong and the post remaining vacant on account of
their leaving the job, should be filled in from the tribal category.
The operation of both these Government
Resolutions is not
restricted to the persons belonging to caste “Koshti” or “Halba
Koshti”. 59. The Government Resolutions
dated 1561995 and 3062004 fell for consideration of the Apex Court in the case of
Punjab National Bank v.
Vilas Bokade and another, reported in :::
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(2008) 14 SCC 545. The decision was rendered by the Division
Bench of the Apex Court concerning of M/s. H.K. Sema and
V.S.Sirpurkar, JJ. Both the Hon'ble
Judges have written concurring judgments. The independent view taken by both the
Judges clearly hold that the protection of both these Government
Resolutions was available as a result of the decision in Milind's
case. In Shalini's case, the Apex Court has held that there is a
palpable wisdom in the office memorandum dated 1082008 on
the similar lines issued by the Government of India, Ministry of
Personnel, Public Grievances and Pension,
Department of Personnel and Training. In
respect of the Government Resolution dated 1561995, Shalini's case holds that virtually it
grants status quo as regards employment inasmuch it states that
those persons, who, on the basis of the Caste Certificates, already
stand appointed or promoted in the
Government of SemiGovernment, shall not be
demoted or removed from service. After
referring to various castes grouped
together under the Government Resolution dated
1561995 read with the
Government Resolution dated 7101994, the Apex Court posed a
question in para 9, “Can it, therefore, seriously be contended that
the person, who has honestly, in contradistinction with falsely,
claimed consanguinity with a certain group, which was later on
found not to belong to an envisaged Scheduled Tribe, but a
Special Backward Class, be visited with
termination of her
employment? It is answered by holding that “We think that, that
is not the intent of law and certainly was not of the threeJudge
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60.
In the decision of the Apex in R. Unnikrishnan and
another v. V.K. Mahanudevan and others, reported in 2014(4)
SCC434, a question was involved regarding protection in the
employment, which was secured as a result of confusion, which
was prevailing till the Constitution (Scheduled Castes) Order,
1950 was amended in the year 2007, which did not include
Ezhuvas and Thiyyas known as Thandan. In para 29, the Apex
Court has held that the question
of ouster of Ezhuvas and Thiyyas known as Thandan on account of the confusion that
prevailed for a considerable length of time till the decision of
the Apex Court in Pattika Jathi's case would be unjustified both
in law and on the principles of equity and good conscience.
Relying upon the decision in Milind's
case, followed in Kavita
Solunke's case (supra), Sanjay Nimje's case (supra) and Sandeep
Subhash Parate v. State of Maharashtra and others, reported in
(2006) 7 SCC 501, the Apex Court has held that in the absence
of lack of bona fides, the benefits granted till 30th August, 2007
shall remain undisturbed, any advantage in terms of promotion
or otherwise which the respondent may have been granted after
the said date on the basis of his being treated as a Scheduled
Caste candidate may if so advised be
withdrawn by the Competent Authority.
It is made clear that the respondent in
the said case shall not be entitled to claim any benefit in future
as a Scheduled Caste candidate, but no benefit admissible to
him as an OBC candidate shall be denied. Following the said
decision of the Apex Court, the Division Bench of this Court in
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has granted protection to the
persons belonging to “Koli” caste falling in the Special Backward
Class category. 61.
In view of the aforestated law laid down by the
Apex Court after considering the effect
of the Government Resolutions dated 1561995
and 3062004, which are
applicable to all the persons belonging to the Special Backward
Class category, we are of the view that the protection granted in
Milind's case to the persons belonging
to caste “Koshti” or
“Halba Koshti” in terms of the decision of the Apex Court in
Milind's case, is also available to all the persons belonging to the
Special Backward Class category included in the Government
Resolution dated 1561995. There cannot be
any different
treatment for the persons, who are similarly situated, merely for
the reason that in most of the cases, the persons belonging to
caste “Koshti” or
“Halba Koshti” have approached the Apex
Court for grant of protection. The interpretation of Section 10
of the said Act placed by the
Apex Court in Shalini's case, applies with
equal force to the guideline Nos.14
and 15 in Madhuri Patil's case.
In view of this, we do not
find any
justification or propriety in the action of the Government of
India in refusing to grant protection to the persons belonging to
the caste other than “Koshti” or “Halba Koshti”.
We answer question No.(a) in para 55
above, holding that the persons belonging
to Special Backward Category are entitled
to the same protection as has been
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persons belonging to caste “Koshti” and “Halba Koshti”.
62.
We, therefore, find that the decision of the Division
Bench of this Court in the case of
Pradip Koli to the extent it
holds in para 26 that “the case of A.P. Ramtekkar does not notice
that the decision in the case of Kavita Solunke is confined to those
who were claiming to be Halbas and therefore, it is not a binding
principle” does not lay down a correct legal position and hence
it is partly overruled, making it further clear that we concur
with rest of the judgment as laying down a correct position of
law in respect of “Koshti” and “Halba Koshti”.
Similarly, in
Rakesh Dafade's case, the Division Bench has granted protection
to the persons belonging to “Koli” caste falling in the Special
Backward Class category. We do not find that the grant of such
protection is contrary to any of the decisions of the Apex Court
63.
In the decision of the Division Bench of this Court
in A.P. Ramtekkar's case, it is held that in view of the law laid
down by the Hon'ble Apex Court in State of Maharashtra v. Milind
(supra), the petitioners who are Halba Koshtis can now by no
stretch of imagination be held to be belonging to Scheduled Tribe.
We, therefore, fail to understand the approach of the employer in
compelling the petitioners to undergo the scrutiny as to whether
they belong to Scheduled Tribes or not, when, as a matter of fact,
they have given up their claim as belonging to Scheduled Tribes.
We find that apart from it, being an empty formality, it would
unnecessarily increase the workload of the Committees, which are
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No doubt, the Special Leave to Appeal
(C) No(s) 1183111832/2013 has been dismissed
in limine by the Apex Court on 1242013, holding that upon perusal of the
material, we do not find any legal
and valid ground for
interference. However, that by itself does not prevent us from
examining the said decision on merits. The dismissal of the SLP
in limine would not constitute a ratio of the decision. Hence,
we proceed to consider the said decision on its own merits as
law laid down by the High Court. 64.
We are unable to concur with the aforesaid view of
the Division Bench of this Court in
A.P. Ramtekkar's case, the reason being
that the cases of fraudulent claims
must be
surfaced. The protection can be granted only after verification
and scrutiny of the caste claim by the Scrutiny Committee. In
Madhuri Patil's case, the Apex Court has observed that spurious
tribes have become a threat to the genuine tribals, who are
defrauding the true Scheduled Tribes to their detriment and
deprivation, snatching away their benefits.
The spurious and ineligible persons, who falsely gain entry in public employment
and resort to dilatory tactics and create hurdles in completion of
the enquiry by the Scrutiny Committee, are not entitled to any
protection. In the words of the Apex Court in Shalini's case, the
cases of dishonest and mendacious persons
who have deliberately claimed consanguinity
with Scheduled Castes or Scheduled Tribes,
are not entitled to protection. One of the
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reasons, is to provide for deterrent punishment for those, who
indulge in fraudulent activities. Such
objects cannot be
defeated by dispensing with the enquiry and scrutiny by the
Scrutiny Committee. On the contrary, it will be in furtherance
of the objects of providing constitutional reservations to genuine
tribals.
On question No.(b) in para 55, we answer that the
protection granted in Milind's case becomes available only upon
invalidation of the caste claim by the Scrutiny Committee, it
would not be merely an empty
formality increasing the workload of the
Committees and that the protection is
not available without going through the
process of Scrutiny Committee under subsection (2) of Section 6 of the said Act.
It is only to this extent, we overrule partly the decision in A.P.
Ramtekkar's case. 65. The factual position to which the law laid down is to
be applied, is stated as under : (a)
Before coming into force of the said Act on
18102001, the appointments and promotions
were made against the post reserved for
Scheduled Castes, Scheduled Tribes, Denotified
Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes and Special Backward Classes category
(consolidatedly called as “the backward class category”) merely
on the basis of the production of the Caste Certificates issued by
the Competent Authorities with or without
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(b) The decision in Madhuri Patil's case
was delivered by the Apex Court on 291994, and by issuing the
Government Resolutions dated 1561995 and 3062004, all
the appointments and promotions made up
to 1561995 against a post reserved
for backward class category are protected
and such appointments and promotions cannot
be cancelled. (c) After coming to force of the said Act on 18
102001, no appointments and/or promotions could be made
without production of a caste validity
certificate under subsection
(2) of Section 6 of the said Act, but it is a fact that some
such appointments have been made. (d)
In terms of the decision in Milind's case, all
the appointments that have become final
up to 28112000
stand protected subject to the conditions as under :
(i) that upon verification by the Scrutiny
Committee, the Caste Certificate produced to
secure an
appointment, is not found to be false or fraudulent,
(ii) that the appointee shall not take
any
advantage in terms of promotion or otherwise after 28112000
solely on the basis of his claim as a candidate belonging to any of
the backward class categories in respect of which his claim is
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invalidated by the Scrutiny Committee, and (iii)
that it shall be permissible for the Competent
Authority to withdraw the benefits or promotions obtained after
28112000 as a candidate belonging to backward class category
for which the claim has been rejected. 66.
In view of the law, which we have laid down, the relief
of protection of service after invalidation of caste claim can be
granted by the High Court on the basis of the judgment of the
Hon'ble Supreme Court in the cases of Kavita Solunke v. State of
Maharashtra and others, reported in 2012(8)
SCC 430, and
Shalini v. New English High School Association and others, reported
in (2013)16SCC526. The manner and the extent to which such
protection is to be made available, is laid down as under :
(a) The appointments or promotions made up to 1561995 in public employment on the basis of the Caste
Certificates against a post reserved for
any of the backward
class categories, stand protected in terms of the Government
Resolutions dated 1561995 and 3062004 and shall not be
disturbed, and the appointments that have
become final between 1561995 and 28112000 shall remain unaffected in
view of the decision of the Apex Court in Milind's case.
(b) The grant of protection in terms
of the Government Resolutions dated 1561995 and 3062004 and
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case, shall be subject to the following
conditions : (i) that upon verification by the
Scrutiny Committee, the Caste Certificate
produced to secure an
appointment, is not found to be false or fraudulent,
(ii) that the appointee shall not take
any advantage in terms of the promotion or otherwise after 2811
2000 solely on the basis of his claim as a candidate belonging to
any of the backward class categories, in respect of which his
claim is invalidated by the Scrutiny Committee, and
(iii) that it shall be permissible for
the
Competent Authority to withdraw the benefits or promotions
obtained after 28112000 as a candidate
belonging to
backward class category for which the claim has been rejected.
(c) Any appointments that have become final against a post reserved for any of the categories of backward
class on the basis of the production of Caste Certificate without
incorporating a specific condition in the order of appointment
that it is it is subject to production of caste validity certificate
after 28112000 and before coming into force of the said Act
on 18102001 shall also remain protected
subject to the
conditions mentioned in clause (b) of para 64.
(d)
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secured in any public employment against a post reserved for
any of the backward class categories merely on the basis of the
production of a caste certificate and without producing a caste
validity certificate from the Scrutiny
Committee. Such appointments are not
protected and shall be liable to be
cancelled immediately upon rejection of the caste claim by the
Scrutiny Committee. 67.
There cannot be a dispute that the High Court in
exercise of its jurisdiction under Article
226 or 227 of the Constitution of India cannot grant protection
in employment
after recording a finding that such employment was secured by
practising fraud or by producing false
or fraudulent caste certificate.
It is urged that the High Court in
exercise of its jurisdiction under Article 226 or 227 of the Constitution of India
cannot grant protection in service, even if there is no fraud
practised to secure an appointment, as has been held in earlier
paras. In the decision in the case of
Ramesh Chandra Sankla
and others v. Vikram Cement and others, reported in (2008) 14
SCC 58, the equity jurisdiction of the High Court under Articles
226 and 227 of the Constitution is elaborated in paras 90, 91
and 98, which are reproduced below : “90.
Now, it is well settled that jurisdiction of the
High Courts under Articles 226 and
227 is discretionary and equitable. Before more than half
a century, the High Court of
Allahabad in the
leading case of Jodhey v. State (AIR 1952 All 788)
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“10. ... There are no limits, fetters or restrictions
placed on this power of superintendence
in this clause and the purpose of this article seems to be to
make the High Court the custodian of all justice
within the territorial limits of its jurisdiction and to
arm it with a weapon that could be wielded for
the purpose of seeing that justice is meted out
fairly and properly by the bodies
mentioned therein.”
(emphasis supplied)”
“91. The power of superintendence under
Article 227 of the Constitution conferred on
every High Court over all courts and tribunals throughout the
territories in relation to which it
exercises jurisdiction is very wide and discretionary in nature.
It can be exercised ex debito justitiae i.e. to meet the
ends of justice.
It is equitable in nature. While
exercising supervisory jurisdiction, a High Court not
only acts as a court of law but also as a court of
equity. It is, therefore, power and also the duty of
the Court to ensure that power of superintendence
must “advance the ends of justice and
uproot injustice”.” “98.
From the above cases, it clearly transpires that
powers under Articles 226 and 227
are
discretionary and equitable and are required to be
exercised in the larger interest of
justice. While granting relief in favour of the applicant, the court
must take into account the balancing of interests
and equities. It can mould relief considering the
facts of the case. It can pass an appropriate order
which justice may demand and equities may project.
As observed by this Court in Shiv Shankar Dal Mills
v. State of Haryana [(1980) 2 SCC 437] courts of
equity should go much further both to
give and refuse relief in furtherance
of public interest.
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68.
In the concurring decision of B.L. Hansaria, J., as he
then was, in the case of B.C. Chaturvedi v. Union of India and
others, reported in (1995) 6 SCC 749, it has been held in paras
21 and 22 as under : “21. HANSARIA, J.
(concurring) – I am in respectful agreement
with all the conclusions
reached by learned brother Ramaswamy, J.
This
concurring note is to express my view on two facets
of the case. The first of these relates to the power of
the High Court to do “complete
justice”, which power has been invoked in some cases by this Court
to alter the punishment/penalty where the
one awarded has been regarded as disproportionate, but
denied to the High Courts. No doubt, Article 142 of
the Constitution has specifically conferred the power
of doing complete justice on this Court, to achieve
which result it may pass such decree or order as
deemed necessary; it would be wrong to think that
other courts are not to do complete justice between
the parties. If the power of
modification of punishment/penalty were to be
available to this Court only under
Article 142, a very large
percentage of litigants would be denied this small
relief merely because they are not in a position to
approach this Court, which may, inter
alia, be
because of the poverty of the person concerned. It
may be remembered that the framers of
the Constitution permitted the High Courts
to even
strike down a parliamentary enactment, on such a
case being made out, and we have
hesitated to concede the power of
even substituting a punishment/penalty, on such
a case being made
out. What a difference! May it be pointed out that
Service Tribunals too, set up with the aid of Article
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“22. The aforesaid has, therefore, to be avoided
and I have no doubt that a High Court would be
within its jurisdiction to modify the
punishment/penalty by moulding the relief, which
power it undoubtedly has, in view of a long line of
decisions of this Court, to which reference is not
deemed necessary, as the position is well settled in
law. It may, however, be stated that this power of
moulding relief in cases of the present nature can be
invoked by a High Court only when
the
punishment/penalty awarded shocks of the judicial
conscience.” 69. In the case of
Madhuri Patil, the Apex Court has
considered the question of exercise of equity jurisdiction in para
15, which is reproduced below : “15. Whether
appellants are entitled to their further
continuance in the studies is the further
question.
Often the plea of equities or promissory
estoppel would be put forth for continuance
and
completion of further course of studies and usually
would be found favour with the Courts. The Courts
have constitutional duty and responsibility,
in
exercise of the power of its judicial review, to see
that constitutional goals set down in the Preamble,
the Fundamental Rights and the Directive Principles
of the Constitution, are achieved. A party that seeks
equity, must come with clean hands. He who comes
to the Court with false claim, cannot plead equity
nor the Court would be justified to exercise equity
jurisdiction in his favour. There is no estoppel as no
promise of the social status is made by the State
when a false plea was put forth for the social status
recognised and declared by the Presidential Order
under the Constitution as amended by the SC and
ST Amendment Act, 1976, which is later found to be
false. Therefore, the plea of promissory estoppel or
equity have no application. When it is found to be a
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case of fraud played by the concerned, no sympathy
and equitable considerations can come to his rescue.
Nor the plea of estoppel is germane to the beneficial
constitutional concessions and opportunities given to
the genuine tribes or castes. Courts
would be
circumspect and vary in considering such cases.”
70. It is thus well settled that the High Court exercising its
jurisdiction under Article 226 or 227 of the Constitution of India
not only acts as a Court of law, but also as a court of equity.
There are no limits, fetters or restrictions placed on this power
of superintendence. The purpose of it is to make the High Court
the custodian of all justice within the territorial limits of its
jurisdiction and to arm it with a weapon that could be wielded
for the purpose of seeing that the justice is meted out fairly and
properly. The power is to be exercised to advance the ends of
justice. While granting relief, the Court must take into account
the balancing interests and equities and granting or withholding
of relief, would depend upon the
considerations of justice,
equity and good conscience. 71.
Chapter III under the Constitution of India does not
provide a fundamental right of being appointed or promoted to
any post either to a member of any backward class community
or to a person belonging to open category.
Merely because a
post is reserved for any of the Scheduled Castes, Scheduled
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Other Backward Classes or Special Backward
Category or Classes, and a person belonging to such backward class category
becomes eligible to compete for the post, it would not follow
that he gets a right of being appointed or promoted to the said
post. If a person really belonging to any of the backward class
categories for which a post is
reserved is not selected or
appointed to such post, there would be no violation of any right,
muchless a fundamental right of being appointed or promoted
to such post. No doubt that if someone, who does not belong to
any such category of backward class
for which the post is
reserved, is appointed to the post, then it necessarily deprives
the genuine candidates of their position
in the zone of consideration of
eligible candidates. If such deprivation
or detriment is
by the spurious persons, who gain entry in the
public employment by fraudulent means as is understood in law
and retain or improve it by adopting
dilatory tactics and creating hurdles in
completing the enquiry by the
Scrutiny Committee, then the question of
protecting such person in service by the High Court in exercise of its equity jurisdiction
under Articles 226 and 227 of the Constitution of India, would
not arise.
There is no fundamental right or even a statutory
right to seek protection in service upon invalidation of a caste
claim, but it is a question of exercise of the equity jurisdiction
under Article 226 or 227 of the Constitution of India.
We,
therefore, do not subscribe to the view taken by the Division
Benches in the cases of
Vijay Deorao Nandanwar and Rakesh Sukanuji
Dafade to the extent it holds
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Dafade's case) that protection need to be granted under Articles
14, 15, 16, 19 and 21 read with Articles 341, 342, 141 and 142
of the Constitution of India. The said decisions are overruled to
that extent. 72.
There cannot be any straitjacket formula laid down
either to refuse or grant protection in the employment either at
the initial stage or at the promotional stage. The approach has
to be practical and pragmatic rather than technical and pedantic
keeping in view the object and purpose of the Constitution in
providing the benefits and concessions to a particular category
of backward class. The Court has to strike the balance between
the conflicting claims of genuine candidates, who are denied the
benefits meant for them and all other persons, who honestly
and genuinely believe and claim themselves to be belonging to a
particular category for whom the concessions and benefits were
meant. The Court will have to
consider the facts and
circumstances of each case to decide whether the protection is
to be granted or refused, and if it is to be granted, up to what
stage and extent. 73.
Apart from bona fides
of the candidate claiming protection in service, the two tests laid down by the Apex Court
in Shalini's case – one was the fraudulent claim and the other
was concerning eligibility to the benefits on the basis of the
Caste Certificate. There are several ways and means of securing
the benefits by practising fraud, misrepresentation, etc., which
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cannot be catalogued. Similarly, there are several angles to test
the bona fides
and consider the equity, which also cannot be
catalogued.
In cases of candidates belonging to castes other
than Special Backward Category, the Court will have to look
into the history of the controversy
to find out whether the
benefits were secured as a result of confusion or uncertainty
prevailing in the area of eligibility to claim such benefits, as has
been held by the Apex Court in the case of R. Unnikrishnan.
74.
In verification and scrutiny of the caste claim, the
Scrutiny Committee is normally concerned with the process by
which a Caste Certificate is obtained. It is concerned with the
information furnished, the statements made, and the documents
produced before the Competent Authority to
obtain a Caste
Certificate. It is the question of correctness and genuineness of
the Caste Certificate obtained and produced. Hence, the scope
of enquiry should extend to the material on the basis of which
the Caste Certificate is issued. The learned counsel appearing
for the Scrutiny Committee could not make even a statement
before this Court that in any of
the orders passed by the Scrutiny Committee, such exercise was carried out. Be that as it
may. Mere using the words 'false',
'fraudulent',
'misrepresentation', 'collusion', 'suppression', etc., in the order of
the Scrutiny Committee shall not be a decisive factor unless
there is relevant material available on record to substantiate
such finding. There may be cases
where the order of the Scrutiny
Committee does not use the words like
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fraudulent', 'misrepresentation', 'collusion',
'suppression', etc.,
but it becomes apparent from the material available on record
that it is a case of securing the benefits by practising a fraud.
75.
We, therefore, do not enter into the merits of the
claim and leave it for the concerned Benches to decide, on the
facts and circumstances of each case, whether the protection
need to be granted or not.
But we conclude in this judgment that (i)
mere invalidation of the caste claim
by the Scrutiny Committee would not entail the consequences of
withdrawal of benefits or discharge from the employment or
cancellation of appointments that have become final prior
to the decision in Milind's case on 28112000,
(ii) upon invalidation of the caste claim
by the
Scrutiny Committee, the benefits obtained or appointments
secured from 28112000 upto 18102001 can
be
withdrawn or cancelled, depending upon the terms of the
employment, if any, in writing, (iii) the
benefits obtained or appointments secured
after coming into force of the said Act on 18102001 can be
withdrawn or cancelled immediately upon invalidation of
the caste claim by the Scrutiny Committee,
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in service upon
invalidation of the caste claim is available not only to the
persons belonging to “Koshti” and “Halba Koshti”, but it is
also available to the persons belonging to Special Backward
Class category on the same terms as is available to “Koshti”
and “Halba Koshti”, and (v)
the claim of the persons belonging
to Nomadic
Tribes, Vimukta Jatis and Other Backward Class category
shall be decided on the lines of the decision of the Apex
Court in the case of
R. Unnikrishnan and another v. V.K. Mahanudevan and others, reported in 2014(4)SCC434.
76.
On the question No.2 framed for the decision by the
Full Bench, we must express that the question of
res judicata,
including the constructive res judicata, may involve adjudication
of facts and law both. Merely because
a petition was filed
claiming the relief of protection and that was either withdrawn
or dismissed by the Court, that by itself would not follow that
the subsequent petition claiming the same
relief would be
barred by the principle of res judicata.
Similarly, in spite of
invalidation of the caste claim by the Scrutiny Committee, there
may not be occasion to claim protection in employment in a
petition challenging the order of the Scrutiny Committee, if by
the time the petition is decided, no
action is taken by the
employer to terminate the services on the basis of the order of
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WP.529738904363.13.odt
the Scrutiny Committee. In such a situation, claiming the relief
of setting aside the termination would be premature and the bar
of constructive res judicata may not
come in the way. It,
therefore, depends upon several factors, like the fresh cause of
action arising because of intervening events requiring either to
review the earlier decision rendered or
to adjudicate the
controversy or prematurely claiming the relief of protection, etc.
We do not think that any further opinion need to be expressed
by the Full Bench on this aspect. We leave this point to be open
and decided by the appropriate Division Bench, keeping in view
the facts and circumstances of each case. The question No.2 is,
therefore, answered accordingly. 77. The net result of the aforesaid discussion is that the
question of law at serial No.1 is answered in the affirmative,
holding that the relief of protection of service after invalidation
of the caste claim can be granted by the High Court on the basis
of the judgments of the Apex Court
in the cases of Kavita Solunke (2012)8SCC430 and Shalini (2013)16SCC526 in the
manner stated in this judgment, and we do not think that the
question of law at serial No.2 need to be decided by the Full
Bench. We, therefore, leave the said question to be decided by
the Division Bench on the basis of the facts and circumstances
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78.
In view of above, the matters are required to be
placed before the concerned Division Benches to deal with them
on merits. (CHIEF JUSTICE)
(SMT.VASANTI A. NAIK, J.)
(R.K. DESHPANDE, J.) P.D.Lanjewar ::: Uploaded on -
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