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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.8014 of 2012
WRIT PETITION NO. 6323 OF 2013
WRIT PETITION NO.5196 OF 2013
WRIT PETITION NO.11518 OF 2012
WRIT PETITION NO.11740 OF 2012
WRIT PETITION NO.5098 OF 2013
WP NO. 8014 OF 2012
Pradip Gajanan Koli .. Petitioner
Vs.
State of Maharashtra & Ors. .. Respondents
--
ALONG WITH
WP NO.6323 OF 2013
Sunita D/o Premdeo Kumbhare @
Smt.Sunita W/o Satish Pajankar .. Petitioner
Vs.
Commissioner of Central Excise
& Custom, Pune -1 & Another. .. Respondents
ALONG WITH
WP NO.5196 OF 2013
Yashpal Dhanraj Lohi .. Petitioner
Vs.
State of Maharashtra & Ors. .. Respondents
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ALONG WITH
WP NO.11518 OF 2012
Nitin Raghunath Khairnar .. Petitioner
Vs.
State of Maharashtra & Ors. .. Respondents
-
ALONG WITH
WP NO.11740 OF 2012
Vs.
Rupchand Devchand Khairnar .. Petitioner
State of Maharashtra & Ors. .. Respondents
--
ALONG WITH
WP NO.5098 OF 2013
Sudhir Dattatraya Telang .. Petitioner
Vs.
State of Maharashtra & Ors. .. Respondents
--
Shri R.K.Mendadkar i/by Mr. Chandrakant K. Bhangoji for the Petitioner
in W.P. Nos.8014 of 2012 and 5196 of 2013.
Shri Mahesh Deshmukh for the Petitioner in W.P.6323 of 2013.
Shri Narendra Bandiwadekar for the Petitioner in W.P. Nos.11518 of
2012 and 11740 of 2012.
Shri A.M.Joshi and Mr.V.K.Bodhare for the Petitioner in W.P. No.5098 of
2013.
Shri S.K.Shinde, Government Pleader a/w Shri A.B.Vagyani, Additional
Government Pleader for the Respondent-State.
Shri Mandar Limaye for Respondent No.3 in W.P. No.8014 of 2012.
Shri Girish Kulkarni i/by Shri K.R.Chaudhari for respondent No.1 in
W.P. No.6323 of 2013.
--
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CORAM : A.S. OKA & G.S. PATEL, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 22ND AUGUST 2013
DATE ON WHICH JUDGMENT IS PRONOUNCED:
22ND NOVEMBER 2013
JUDGMENT ( PER A.S. OKA, J)
1. The following question arises for consideration in these Petitions:
Whether the employment of a person appointed against a post reserved for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category category (for short "reserved category") on the basis of a caste certificate can be protected after his/her caste certificate is invalidated by the Competent Caste Scrutiny Committee duly constituted under the the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of ) Caste Certificates Act, 2000 ( for short "the said Act") ?::: Downloaded on - 27/11/2013 20:34:03 ::: ash 4
wp-8014.12,6323,5196,11518,11740n5098.13 FACTS OF THE INDIVIDUAL CASES
2. Before we advert to the legal submissions made across the bar, it will be necessary to make a reference to the factual controversy in each Petition. The Petitioner in Writ Petition No.8014 of 2012 was appointed on a post of fireman reserved for Schedule Tribes on the establishment of the third Respondent Municipal Corporation. He was appointed on 13th March 1996. He obtained a caste certificate from the Competent Authority on 22nd June 2000. By the order dated 7 th July 2012, the caste certificate of the Petitioner was invalidated by the Scheduled Tribe Scrutiny Committee. The Petitioner has given up his claim that he belongs to Koli Mahadeo, a Scheduled Tribe, but he is claiming protection of his employment.
3. In Writ Petition No.5098 of 2013, the Petitioner was employed as a talathi on 12th April 1990 on a post reserved for Scheduled Tribe. By an order dated 15th February 2013, the caste claim of the Petitioner that he belongs to Koli Mahadeo, a Scheduled Tribe was negatived. The Petitioner has given up his caste claim that he belongs to Koli Mahadeo, a Scheduled Tribe and he is seeking protection of his employment.
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4. In Writ Petition No.6323 of 2013, the substantive prayer is for challenging the judgment and order dated 1 st July 2013 passed by the Caste Scrutiny Committee by which the caste claim of the Petitioner that she belongs to Halba, a Scheduled Tribes has been negatived and the caste certificate has been cancelled. The Petitioner is in the employment of Central Excise Department since 4 th January 1996 and was confirmed on 25th November 1999. The prayer made in the alternative is for protecting the employment of the Petitioner on the basis of the decision of this Court in the case of A.P. Ramtekkar and others v. Union of India and others1. Though the claim of the Petitioner that he belongs to Halba, a Scheduled Tribe, is not given up, the learned counsel appearing for the Petitioner has argued in support of the prayer made in the alternative for protection of his employment.
5. In Writ Petition No.11518 of 2012, the challenge is to the order dated 16th October 2012 passed by the Caste Scrutiny Committee by which the caste claim of the Petitioner that he belongs to Koli Mahadeo, a Scheduled Tribe has been negatived. In this case, the Petitioner is in the employment of the City and Industrial Development Corporation of Maharashtra Limited (CIDCO) with effect from 25 th June 1997. The Petitioner has not specifically given up his caste claim.
1 [2013(2) Mh.L.J. 419] ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 6 wp-8014.12,6323,5196,11518,11740n5098.13 However, the learned counsel appearing for the Petitioner has made submissions for protecting the employment of the Petitioner even assuming that the caste claim of the Petitioner is not upheld.
6. In Writ Petition No.11740 of 2012, the challenge is to the order dated 2nd November 2012 passed by the Caste Scrutiny Committee by which the caste claim of the Petitioner that he belongs to Koli Mahadeo, a Scheduled Tribe has been negatived. In this case, the Petitioner is in the employment of the City and Industrial Development Corporation of Maharashtra Limited (CIDCO) with effect from 30 th December 1999. The Petitioner has not specifically denied the caste claim. However, the learned counsel appearing for the Petitioner has made submissions for protecting the employment of the Petitioner even assuming that the caste claim of the Petitioner is not upheld.
7. In Writ Petition No.5196 of 2013, the challenge is to the order dated 12th April 2013 passed by the Caste Scrutiny Committee by which the caste claim of the Petitioner that he belongs to Dhangad, a Scheduled Tribe has been negatived. The Petitioner is in the employment of the establishment of the office of the Government Pleader of this Court, Original Side, with effect from 29 th June 1998.
We must note here that the Petitioner has filed an undertaking in this ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 7 wp-8014.12,6323,5196,11518,11740n5098.13 Petition that he would not claim any future benefits of reservation and, therefore, his service may be protected. He has also given an undertaking that neither himself nor his progeny or any of his family members shall claim any reservation benefits by claiming that they belong to Dhangad, a Scheduled Tribe.
THE SUBMISSIONS OF THE PARTIES
8. The learned Counsel representing the petitioners have made extensive submissions. Some of the submissions are common. We are summarizing the submissions. The learned counsel appearing for the Petitioners relied upon Government Resolution dated 15 th June 1995. Based on the said Government Resolution, it is contended that the persons who were employed prior to 15 th June 1995 on a post reserved for a Scheduled Tribe should not be removed from the employment on the ground that they do not belong to the caste Koli Mahadeo, but are Kolis. The Government Resolution directs that the employment of such persons who fall in the category of Special Backward Class shall be protected. Reliance is placed on a decision of a Division Bench of this Court in the case of Kumari Bhamini Sadashiv Thanekar v. State of Maharashtra & Others2 which holds that there is nothing in the provisions of the said Act which provides that the 2 Writ Petition No.194 of 2003 decided on 14th August 2003 ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 8 wp-8014.12,6323,5196,11518,11740n5098.13 protection granted under the Government Resolution dated 15 th June 1995 has been withdrawn. Reliance has been placed on the decision of this Court in the case of A.P. Ramtekkar. Reliance is placed by the Petitioners on the decision of the Apex Court in the case of Kavita Solunke v. State of Maharashtra and others 3 wherein the Apex Court granted protection to the employment of a teacher who was claiming to be Halba, a Scheduled Tribe, and who was appointed in a post reserved for Scheduled Tribe though the Caste Scrutiny Committee found that she belongs to the caste Koshti which is not a Scheduled Tribe. The Apex Court observed that as there was no allegation against the Petitioner that she fabricated or manipulated the caste claim with a view to obtain undeserved benefits, her service was entitled to be protected. The Petitioners have also placed reliance on a decision of the Division Bench of this Court at Nagpur in the case of Prabhakar Rushi Nandanwar v. Joint Commissioner & Vice-Chairman of the Scheduled Tribe Certificate, Caste Scrutiny Committee 4. In this case, the Petitioners claim that they were belonging to Halba, a Scheduled Tribe, but their caste claims were invalidated. The Petitioners relied upon a decision of the Apex Court in the case of Dattu Namdev Thakur v. State of Maharashtra and others5 by which the employment of the Petitioner 3 (2012) 8 SCC 430 4 Writ Petition No.900 of 2012 and other connected matters decided on 9th October 2012 5 [(2012)1 SCC 549] ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 9 wp-8014.12,6323,5196,11518,11740n5098.13 therein was protected. This was a case where the Caste Scrutiny Committee had invalidated the cast certificate of the Petitioner that he belong to Thakur, a Scheduled Tribe. The Petitioners have also relied upon another decision of Division Bench dated 5 th 8th 9th and 10th July 2013 of this Court at Nagpur in the case of Kumari Vijaya Deorao Nandanwar v. Chief Officer, Municipal Council, Wardha 6 and other connected matters. The Division Bench protected the employment of the Petitioners whose caste claims were invalidated though their appointments were on reserved posts.
9. The submission of the learned counsel appearing for the Petitioners is that those who were in the employment prior to the coming into force of the said Act cannot be visited with the drastic consequences provided under the said Act and in particular Section 10 thereof. The submission is that the said provision cannot apply retrospectively. It was urged that those who were employed on a reserved post whose caste claim has been invalidated after a long lapse of time deserve to be protected subject to all the usual conditions such as filing of an undertaking not to claim benefit of caste claim in future and that their progeny will not claim any benefit of caste claim. Their contention is that right from the decision of the Apex Court in the case 6 Writ Petition No.5530 of 2012 ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 10 wp-8014.12,6323,5196,11518,11740n5098.13 of State of Maharashtra and others v. Sanjay K. Nimje 7, the employment and/or the admissions granted to education institutions of such persons have been protected.
10. The learned Government Pleader as well as other learned counsel representing the contesting Respondents have opposed these submissions. The submission of the learned Government Pleader is that the decisions of the Apex Court granting protection to the employment or to the admission of the Petitioners in the educational institutions even after invalidation of the caste claims have been rendered in exercise of powers under Article 142 of the Constitution of India and hence, the same cannot be read as a binding precedents.
He submitted that some of the decisions relied upon by the Petitioners have been rendered without taking into consideration Section 10 of the said Act which mandates that after invalidation of caste claim, the benefits taken on the basis of the caste certificate cannot be retained.
The learned Government Pleader relied upon a decision of the Apex Court in the case of R. Vishwanatha Pillai v. State of Kerala & others.8 The learned Government Pleader relied upon a decision of Full Bench this Court in the case of Ganesh Rambhau Khalale v. State of 7 (2007)14 SCC 481 8 AIR 2004 SC 1469(1) ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 11 wp-8014.12,6323,5196,11518,11740n5098.13 Maharashtra and others9. Reliance is placed on a decision of the Division Bench of this Court in the case of Shailesh Krishnarao Kohad v.
Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur and others.10 Reliance is also placed on another decision of Division Bench of this Court at Nagpur in the case of Rajendra Ramaji Mahisbadwe v.
Joint Commissioner and Vice Chairman Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur and another.11 Some of the learned counsel appearing for the Respondents relying upon a decision of the Apex Court in the case of Kumari Madhuri Patil and another v. Additional Commissioner, Tribal Development and others12 submitted that Clause 15 of the directions issued by the Apex Court clearly lays down that on the cancellation of the caste certificate, the employment of the candidates has to be terminated. It is pointed out that in a recent judgment of the larger bench of the Apex Court in the case of Dayaram v. Sudhir Batham and others,13 the Apex Court has reiterated the view taken in the case of Kumari Madhuri Patil and has held that the directions issued in the case of Kumari Madhuri Patil shall continue in absence of the legislation governing the subject. Their submission is that those who deprive the benefit of reserved posts to genuine candidates do not 9 [2009(2) Mh.L.J 788] 10 [2010(1) Mh.L.J. 790 11 In Writ Petition No.5569 of 2012 decided on 11th March 2013 12 [(1994)6 SCC 241] 13 [(2012)1 SCC 333] ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 12 wp-8014.12,6323,5196,11518,11740n5098.13 deserve protection of the Writ Court. We must note here that there are various other decisions relied upon by the learned counsel appearing for the rival parties. We have made reference only to the decisions on which much emphasis was laid by the learned counsel.
CONSIDERATION OF SUBMISSIONS
11. We have given careful consideration to the submissions.
Firstly, we must make a reference to the said Act and in particular Section 10 thereof. The said Act came into force on 10 th October 2001.
Section 10 of the said Act reads thus:
"10.(1) Whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes of Special Backward Category secures admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or secures any appointment in the Government, local authority or in any other Company or corporation, owned or controlled by the Government or in any Government aided institution or co-operative society against a post reserved for such Castes, Tribes or Classes by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed or derived by virtue ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 13 wp-8014.12,6323,5196,11518,11740n5098.13 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.
(3) Notwithstanding anything contained to any Act for the time being in force, any Degree, Diploma or any other educational qualification acquired by such person after securing admission in any educational institution on the basis of a Caste Certificate which is subsequently proved to be false shall also stand cancelled, on cancellation of such Caste Certificate by the Scrutiny Committee.
(4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory body if he has contested the election for local authority, co-operative society, or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively."::: Downloaded on - 27/11/2013 20:34:03 ::: ash 14
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12. Before we consider the effect of Section 10 of the said Act, we must note here that Section 4 of the said Act confers a power on the Competent Authority to issue caste certificates. The said Act is applicable to all the reserved categories such as Scheduled Castes, Scheduled Tribes, De-notified Tribes, Other Backward Classes and Special Backward Classes. Under Section 6 of the said Act, the Scrutiny Committees have been constituted for verification of the caste certificates and for issuing the validity certificates. As per the scheme of the said Act, a caste certificate issued by the Competent Authority in accordance with Section 4 of the said Act is never conclusive and, at the highest, it is only a prima facie evidence of the caste status which is subject to confirmation and verification by the Caste Scrutiny Committee. Section 7 of the said Act confers power on the Caste Scrutiny Committee to confiscate and cancel false caste certificates.
Section 8 of the said Act provides that the burden of proving that a person belongs to a scheduled caste or Scheduled Tribe is on the Claimant.
13. Sub-section (1) of Section 10 of the said Act clearly provides that if a person not being a person belonging to any of the reserved categories to which the said Act is applicable, secures admission to any educational institution against a reserved seat or ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 15 wp-8014.12,6323,5196,11518,11740n5098.13 secures any appointment on a post which is reserved by producing a false caste certificate shall on cancellation of the caste certificate be liable to be debarred from the concerned educational institution or as the case may be, discharged from the employment forthwith. It also provides that any other benefits enjoyed or derived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith. Sub-section (2) thereof provides that the 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. Sub-section (3), which is given an overriding effect over the other Acts, provides that any Degree, Diploma or any other educational qualification acquired by such person after securing admission in any educational institution on the basis of a Caste Certificate which is subsequently proved to be false shall also stand cancelled.
14. At this stage, we must note an argument which is normally canvassed in some of the cases. It is contended that cancellation of the caste certificate on account of failure to prove the caste claim before the Scrutiny Committees does not necessarily mean that the caste claim is found to be false. On this aspect, we must make a reference to a ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 16 wp-8014.12,6323,5196,11518,11740n5098.13 decision of full bench of this Court in the case of Ramesh Suresh Kamble vs State of Maharashtra14 The full bench held thus "Upon conjoint reading of sections 6(2) and 7(1) of Maharashtra Act No.XXIII of 2001, it becomes very clear that the Caste Certificate is cancelled and confiscated when the Scrutiny Committee is of the opinion that the certificate has been obtained fraudulently by the applicant. Conversely, once the certificate 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. What is important for the purposes of section 16(1C)(a) of the M.M.C. Act is not the express finding by the Caste Scrutiny Committee that the caste certificate was obtained by the applicant by making false claim or declaration, but the factum of invalidation and cancellation of caste certificate by the Scrutiny Committee. The cancellation of caste certificate by the Scrutiny Committee implies that in the opinion of the Scrutiny Committee, such certificate has been obtained fraudulently because the inquiry by the Scrutiny Committee centres around the correctness of such caste certificate obtained from the Competent Authority."
(emphasis added) The full Bench further held thus :
"The inquiry under section 7(1) of Maharashtra Act No.XXIII of 2001 by the Caste Scrutiny Committee is focused on the correctness of the Caste Certificate obtained by such person from the Competent 14 2007(1)Mh.L.J423 ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 17 wp-8014.12,6323,5196,11518,11740n5098.13 Authority. The Caste Certificate is issued by the Competent Authority on the application made by the concerned person disclosing certain information. If the Caste Certificate is cancelled by the Caste 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. It is not necessary that such claim or declaration must involve turpitude of mind. There may not be any deliberateness in it. The 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, incurring disqualification under section 16(1C)
(a)"
(emphasis added) The ultimate conclusion of the Full Bench reads thus:-
"28. It is not necessary for the Caste Scrutiny Committee, as we have already discussed above, to record specifically that the Caste Certificate has been obtained by the applicant by making false claim or declaration. Once the Caste Certificate obtained by the candidate under section 4 from the Competent Authority is cancelled by the Scrutiny Committee under section 7(1) of Maharashtra Act No.XXIII of 2001, the implicit inference is that such certificate has been obtained by making false claim or declaration because the power of the Scrutiny Committee to cancel the caste certificate is founded on such certificate having been obtained fraudulently."
(emphasis added) ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 18 wp-8014.12,6323,5196,11518,11740n5098.13
15. A caste certificate is granted on the basis of an application made by an individual to the Competent Authority. If such a person fails to prove his caste claim before the Caste Scrutiny Committee, the claim made by him that he belongs to a particular reserved category must be treated as a claim which is false. That is what the binding precedent of the Full Bench lays down. Hence, if on the basis of a caste certificate, an appointment is made on a post reserved for any reserved category and if, subsequently, the caste claim is negatived by the Caste Scrutiny Committee by cancelling the caste certificate, the case is obviously of making a false claim of caste status. Therefore, the moment the Caste Scrutiny Committee cancels the caste certificate on the ground of failure of a person to prove his caste claim on merits, the claim made by such a person regarding caste has to be treated as a false claim, and therefore, the consequences provided in Section 10 of the said Act must follow. The language of the Section 10 leaves no doubt that the provisions thereof are mandatory in nature. As a consequence of the cancellation of caste certificate, the termination of employment and the cancellation of admission to an educational institution must follow. Therefore, to those who have obtained employment or admissions to educational institutions after the date of coming into force of the said Act, Section 10 of the said Act will squarely apply and ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 19 wp-8014.12,6323,5196,11518,11740n5098.13 Writ Court cannot exercise extraordinary jurisdiction under Article 226 of the Constitution of India to protect the admission or employment of such a candidate contrary to the mandatory provisions of Section 10 of the said Act. Therefore, in the cases of those who obtained employment after coming into force of the said Act on the basis of a caste certificates which which are cancelled on merits in accordance with Section 7 of the said Act, Section 10 of the said Act leaves no discretion to the Court to protect the employment of such persons.
None of the decisions relied upon by the Petitioners hold that to the cases to which Section 10 of the said Act is applicable, a protection can be granted by the Court to the employment. Some argument was sought to be canvassed on the case of Kavita Solunke. The decision of the Apex Court deals with the cases of those whose employment was confirmed prior to the date on which the said Act came in to force.
16. For the first time, in the case of Madhuri Patil, directions were issued to establish Caste Scrutiny Committees. Clauses 14 and 15 of the directions issued by the Apex Court read thus:
"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 ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 20 wp-8014.12,6323,5196,11518,11740n5098.13 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 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 educational institution concerned or the appointing authority by registered post with acknowledgement 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 from further study or continue in office in a post."
(emphasis added) We have also noted that in the case of Dayaram v. Sudhir Batham and others, the Apex Court has expressly held that the directions issued by it in the case of Madhuri Patil shall be followed till an appropriate legislation is framed. In paragraph 22, the Apex Court held thus :
"22. Therefore, we are of the view, that Directions 1 to 15 issued in exercise of power under Articles 142 and 32 of the Constitution, are valid and laudable, as they were made to fill the vacuum in the absence of any legislation, to ensure that only genuine Scheduled Caste and Scheduled Tribe ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 21 wp-8014.12,6323,5196,11518,11740n5098.13 candidates secured the benefits of reservation and the bogus candidates were kept out. By issuing such directions, this Court was not taking over the functions of the legislature but merely filling up the vacuum till the legislature chose to make an appropriate law."
The case of Madhuri Patil was decided on 2nd September 1994. Hence, in case of persons who secured appointments on reserved posts after the said date, in the event the caste claim is invalidated, the consequences provided in clause 15 of the directions in the case of Madhuri Patil will apply.
17. Now it will be necessary to make a reference to the decision of the Apex Court in the case of State of Maharashtra v. Milind and others14. A Writ Petition was filed by one Milind before this Court.
He claimed that he belonged to Halba, a Scheduled Tribe. On the basis of the caste certificate issued to him, he secured admission to the M.B.B.S Degree course in the year 1985-1986. The Caste Scrutiny Committee recorded a finding that he did not belong to the caste Halba which is a notified Scheduled Tribe and his caste was Koshti. This Court took a view that Halba Koshti was a sub-division of the main tribe Halba and hence, his caste claim that he belongs to Halba, a Scheduled 14 AIR 2001 SC 393 ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 22 wp-8014.12,6323,5196,11518,11740n5098.13 Tribe was upheld. The said decision of this Court was challenged before the Apex Court. In Paragraph 33, the Apex Court held thus:
"33. ...............The jurisdiction of the High Court would be much more restricted while dealing with the question whether a particular caste or tribe would come within the purview of the notified Presidential Order, considering the language of Articles 341 and 342 of the Constitution. These being the parameters and in the case in hand, the Committee conducting the inquiry as well as the Appellate Authority, having examined all relevant materials and having recorded a finding that Respondent 1 belonged to "Koshti" caste and has no identity with "Halba/Halbi" which is the Scheduled Tribe under Entry 19 of the Presidential Order, relating to the State of Maharashtra, the High Court exceeded its supervisory jurisdiction by making a roving and in-depth examination of the materials afresh and in coming to the conclusion that "Koshtis" could be treated as "Halbas". In this view the High Court could not upset the finding of fact in exercise of its writ jurisdiction."
( emphasis added )
18. In Paragraph 38, the Apex Court held thus:
"38. Respondent 1 joined the medical course for the year 1985-86. Almost 15 years have passed by now. We are told he has already completed the course and may be he is practising as a 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 1. If any action is taken against Respondent 1, it may lead to depriving ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 23 wp-8014.12,6323,5196,11518,11740n5098.13 the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect the degree obtained by him and his practising 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 of 1985 and other related matters, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment."
19. A Full Bench of this Court in the case of Ganesh Rambhau Khalale had an occasion to interpret the decision of the Apex Court in the case of Milind. The issue which arose for the consideration of the Full Bench was whether the direction given by the Apex Court in the decision in the case of Milind is a declaration of law under Article 141 of the Constitution of India which is binding on all the Courts or whether the said direction has been issued in exercise of powers under Article 142 of the Constitution of India which only protects the Petitioner before the Apex Court in the facts and circumstances stated therein. The Full Bench in Paragraph 13 held thus:
"13. Having regard to the legal position that emerges from the above referred judgments we record the following conclusions and answer the question framed:::: Downloaded on - 27/11/2013 20:34:03 ::: ash 24
wp-8014.12,6323,5196,11518,11740n5098.13 (1) The observations/directions issued by the Supreme Court in para 36 of the judgment in the case of State V. Milind reported in 2001 (1) Mah.L.J. SC 1 : (AIR 2001 SC 393) is not the `law declared by the Supreme Court' under Article 141 of the Constitution of India.
(2) The said observations/directions are issued in exercise of powers under Article 142 of the Constitution.
(3) The said observations/directions have no application to the cases relating to appointments and are restricted to the cases relating to admissions.
(4) The protection, if any, to be granted in the facts and circumstances of the case would depend upon the exercise of discretion by the Supreme Court under Article 142 of the Constitution. As the powers under Article 142 are not available to the High Court no protection can be granted by this Court in cases relating to admissions."
(emphasis added)
20. At this stage, it will be necessary to make a reference to the decision of the Apex Court in the case of Union of India v.
Dattatraya Namdeo Mendhekar and others15. This was a case decided by the larger bench of the Apex Court consisting of three Hon'ble Judges. In Paragraphs 5 and 6, the Apex Court referred to the decision in the case of Milind. The Paragraphs 5 and 6 read thus:
15 AIR 2008 SC 1678 ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 25 wp-8014.12,6323,5196,11518,11740n5098.13 "5. Milind related to a medical college admission.
The question that arose for consideration in that case was whether it was open to the State Government or courts or other authorities to modify, amend or alter the list of Scheduled Tribes and in particular whether "Halba-Koshti"
was a sub-division of "Halba" Tribe. This Court held that it was not permissible to amend or alter the list of Scheduled Tribes by including any sub- divisions or otherwise. On facts, this Court found that the respondent therein had been admitted in medical course in ST category, more than 15 years back; that though his admission deprived a Scheduled Tribe student of a medical seat, the benefit of that seat could not be offered to Scheduled Tribe student at that distance of time even if the respondent's admission was to be annulled; and that if his admission was annulled, it will lead to depriving the services of a doctor to the society on whom the public money had already been spent. In these peculiar circumstances, this Court held that the decision will not affect the degree secured by the respondent or his practice as a doctor but made it clear that he could not claim to belong to a Scheduled Tribe. But the said decision has no application to a case which does not relate to an admission to an educational institution, but relates to securing employment by wrongly claiming the benefit of reservation meant for Scheduled Tribes. When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to Scheduled Caste/Tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation.
::: Downloaded on - 27/11/2013 20:34:03 ::: ash 26wp-8014.12,6323,5196,11518,11740n5098.13
6. In this context, we may also refer to the decisions in Bank of India vs. Avinash D. Mandivikar and BHEL V. Suresh Ramkrishna Burde wherein this Court held that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. In the latter case, this Court explained Milind thus (Suresh Ramkrishna Burde case SCC p.340, para7) "7 The High Court has granted relief to the respondent and has directed his ig reinstatement only on the basis of the Constitution Bench decision of this Court in State of Maharashtra Vs. Milind. In our opinion, the said judgment does not lay down any such principle of law that where a person secures an appointment by producing a false caste certificate,his services can be protected and an order of reinstatement can be passed if he gives an undertaking that in future he and his family members shall not take any advantage of being member of a caste which is in reserved category."
This court further held that even in cases of admission to educational institutions, the protection extended by Milind will be applicable only where the candidate had successfully completed the course and secured the degree, and not to cases where the falsehood of the caste certificate is detected within a short period from the date of admission."
21. In so many words, the Apex Court observed that the decision in the case of Milind has no application to a case which does ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 27 wp-8014.12,6323,5196,11518,11740n5098.13 not relate to an admission to the educational institution but relates to securing employment by wrongly claiming benefit of reservation. The Apex Court held that the protection extended by the decision in the case of Milind will be applicable only when the candidate has successfully completed the course and has secured the degree and not to the cases where falsification of caste certificate is detected within a short period from production of the caste certificate.
22. In the case of Kavita Solunke decided by the Apex Court in the year 2012, the Petitioner was appointed as a teacher on 1 st August 1995. Her appointment was duly approved on 12 th July 1996 by the Zilla Parishad. A decade thereafter, the Head Master of the school called upon the Petitioner to get the caste certificate verified from the Scrutiny Committee. The said Kavita was claiming that her caste was Halba which is a Scheduled Tribe. The Caste Scrutiny Committee invalidated the caste claim by observing that the said Kavita was Koshti which is not a Scheduled Tribe. On the basis of the order of the Caste Scrutiny Committee, the employment of the Petitioner was terminated.
An Appeal preferred by the Petitioner against the order of termination was dismissed. The Petitioner challenged the order of the Caste Scrutiny Committee by filing a Writ Petition in this Court. The Writ Petition was dismissed. In Paragraph 6 of the decision in the case of ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 28 wp-8014.12,6323,5196,11518,11740n5098.13 Kavita Solunke, the Apex Court summarized the controversy before it which reads thus:
"6. The learned counsel appearing for the appellant raised a short point before us. He contended that the appointment of the appellant having attained finality, could not have been set aside on the ground that Koshti-Halbas were not "Halbas" entitled to the benefit of reservation as Scheduled Tribes. Relying upon the decision of the Constitution Bench of this Court in State of Maharashtra V. Milind, it was urged by the learned counsel that the appellant was entitled to the protection of continuance in service, no matter "Halba-Koshtis" were not recognised as "Halbas" by this Court. The High Court had not, according to the learned counsel, correctly appreciated the decision of this Court in Milind case and thereby fallen in an error in dismissing the writ petition filed by the appellant."
23. The Apex Court thereafter considered its decision in the case of Milind. In Paragraph 16, the Apex Court observed thus:
"16. If "Halba-Koshti" has been treated as "Halba" even before the appellant joined service as a teacher and if the only reason for her ouster is the law declared by this Court in Milind case, there is no reason why the protection against ouster given by this Court to appointees whose applications had become final should not be extended to the appellant also. The Constitution Bench had in Milind case noticed the background in which the confusion had prevailed for many years and the fact that appointments and admissions were made for a long time treating "Koshti" as a ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 29 wp-8014.12,6323,5196,11518,11740n5098.13 Scheduled Tribe and directed that such admissions and appointments wherever the same had attained finality will not be affected by the decision taken by this Court."
24. In paragraph 19, the Apex Court held thus:
"19. Our attention was drawn by the counsel for the respondents to the decision of this Court in BHEL v. Suresh Ramkrishna Burde in which the protection against ouster granted by the decision in Milind case was not extended to the respondent therein. A bare reading of the said decision, however, shows that there is a significant difference in the factual matrix in which the said case arose for consideration. In burde case the Scrutiny Committee had found that the caste certificate was false and therefore, invalid. That was not the position either in Milind case, the Scrutiny Committee had never alleged any fraud or any fabrication or any misrepresentation that could possibly disentitle the candidate to get relief from the Court. In the case at hand also there is no such accusation against the appellant that the certificate was false, fabricated or manipulated by concealment or otherwise. Refusal of a benefit flowing from the decision of this Court in Milind case may, therefore, have been justified in Burde case but may not be justified in the case at hand, where the appellant has not been accused of any act or omission or commission of the act like the one mentioned above to disentitle her to the relief prayed for. The reliance upon Burde case, therefore, is of no assistance to the respondent."
25. Ultimately, in Paragraph 22, the Apex Court observed thus:-
"22. Applying the above to the case at hand, we do not see reason to hold that the appellant ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 30 wp-8014.12,6323,5196,11518,11740n5098.13 had fabricated or falsified the particulars of being a Scheduled Tribe only with a view to obtain an undeserved benefit in the matter of appointment as a teacher. There is, therefore, no reason why the benefit of protection against ouster should not be extended to her subject to the usual condition that the appellant shall not be ousted from service and shall be reinstated if already ousted. But she would not be entitled to any further benefit on the basis of the certificate which she has obtained and which was 10 years after its issue cancelled by the Scrutiny Committee."
26. A Division Bench of this Court in the case of Prabhakar s/o Rushi Nandanwar decided on 9th October 2012 makes a reference to the decision of the Apex Court in the case of Kavita Solunke. Referring to the decision in the case of Milind Katware, in Paragraph 8 the Division Bench held thus:
"8. ..... Not only thus, even in the case of Milind Katware the Division Bench of this Court had also held and reiterated the view taken in Abhay Parate's case that Halba Koshti is sub tribe of Halba/Halbi. It was this judgment which was carried by the State in appeal and for the first time i.e on 28.11.2000 the controversy was put to rest when the Constitution Bench in unequivocal terms held that Halba Koshtis are not included in entry Halba of Scheduled Tribes and as such are not entitled to the benefits as Scheduled Tribe. It can thus be clearly seen that the legal position pertaining to Halba Koshti in the Vidarbha Region from 1984 till 2001 on the basis of the judgment in the case of Abhay Parate was that the Halba Koshtis are included in Halba/Halbi Scheduled Tribe. It is thus clear that ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 31 wp-8014.12,6323,5196,11518,11740n5098.13 taking into consideration these peculiar facts and circumstances, the Apex Court had protected the appointments/admissions that had become final. No doubt that there have been divergent views express by the Apex Court, in some matters it has been held that the protection is applicable to appointment, while in some others it has been held that it is not applicable to appointments."
Thereafter, the Division Bench considered the decision in the case of Kavita Solunke . In Paragraphs 11 and 12, the Division Bench held thus:
"11.
It can thus be clearly seen that the Apex Court in the case of Kavita Solunke has clearly held that even Halba Koshtis whose appointments had become final were entitled to protection of their employment. In so far as the cases taking a different view are concerned, the Apex Court has clearly held that the protection was refused to the candidates wherein their claim was found to be fabricated or fraudulent. In the present case, there is no finding to the effect that the petitioners' claim is either fraudulent or fabricated.
12. It can thus be clearly seen that taking into consideration the peculiar circumstances in the case of Milind Katware, the Apex Court has protected all admissions/appointments which had become final prior to the date of the judgment. In the case of Kavita Solunke , the Apex Court has in unequivocal terms held that all appointments even of Halba Koshtis which had become final are entitled to be protected unless it is found that the claim is fraudulent or fabricated."
(emphasis added) ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 32 wp-8014.12,6323,5196,11518,11740n5098.13 The ratio of the decision in the case of Kavita Solunke is set out in Paragraph 12. The decision in the case of Kavita Solunke applies only in the case of those who secured employment on a seat reserved for Halba, a Scheduled Tribe and whose caste certificates were cancelled after their appointments had become final. The directions in the case of Kavita Solunke are confined only to the aforesaid limited cases of those who were claiming to be Koshtis or Halba Koshtis whose appointments had became final as on 28 th November 2000. Moreover, the directions apply only when the caste claim is neither fraudulent or fabricated. After coming into force of the said Act, the consequences provided in Section 10 of the said Act shall follow and a claim for protection of the employment on the ground that the caste claim was not fraudulent or fabricated will not be available in case of appointments made after coming into force of the said Act. The case of A.P. Ramtekkar is decided in the facts of the case. 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. It does not notice that the decision in the case of Kavita Solunke is confined to those who were claiming to be Halbas. Hence, it is not a binding precedent.::: Downloaded on - 27/11/2013 20:34:03 ::: ash 33
wp-8014.12,6323,5196,11518,11740n5098.13
27. Though in the case of Ganesh Rambhau Khalale, the Full Bench held that the directions issued in the case of Milind were in exercise of powers under Article 142 of the Constitution of India and apply only to the cases relating to the admissions, now what holds the field is the decision of the Apex Court in the case of Kavita Solunke. We have extensively referred to what is held by the Apex Court in the case of Kavita Solunke. In Paragraph 15, the Apex Court has noted the submissions made on behalf of Kavita that her appointment had attained finality long before the judgment of this Court in the case of Milind and that even when she was found to be Koshti and not Halba by the Caste Scrutiny Committee, she was entitled to protection against the ouster. The Apex Court held that there was merit in the said submission. Though the decision in the case of Milind was in relation to the admission to an educational institution, in Paragraph 16 in the case of Kavita Solunke, the Apex Court observed that the said decision will apply even in case of appointments which had attained finality.
That is the reason why in the case of Prabhakar Nandanwar, the Division Bench had granted protection to the employment of the Petitioners which had become final on 28 th November 2000. Thus, the decision of the Apex Court in the case of Kavita Solunke will apply only to a case where a person claiming to be a Koshti or Halba Koshti was appointed on a post reserved for a Scheduled Tribe on or before 28 th ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 34 wp-8014.12,6323,5196,11518,11740n5098.13 November 2000. If his appointment has become final as of that date, his appointment cannot be disturbed even after invalidation of his caste claim by the Caste Scrutiny Committee provided there is no finding recorded that the claim was fraudulent or fabricated. The decision in the case of Kavita Solunke will apply only to those cases where claim of a candidate who was belonging to Koshti or Halba Koshti caste that he falls in the category of a Scheduled Tribe as Halba has been negatived and the appointment of the candidate had become final. The decision of Full Bench in the case of Ganesh applies only to the case of Milind.
Thus, Kavita Solunke only applies where:
(1) the person claims to be a Koshti or Halba Koshti;
(2) the person was appointed to a post reserved for Scheduled Tribes;
(3) that appointment was on or before 28th November 2000;
(4) the appointment has become final as on that date;
(5) the caste invalidation of the caste certificate by the ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 35 wp-8014.12,6323,5196,11518,11740n5098.13 Caste Scrutiny Committee is not on the basis that the caste certificate was fraudulent or fabricated;
It is only when all five of the conditions are met that Kavita Solunke will be applied to protect employment. We must reiterate that the decision in the case of Kavita Solunke is confined only to those who were claiming to be Halbas and will not apply to the persons who claimed benefit of reservation any other reserved category and whose claim has been negatived even if there appointments had become final on or before 28th November 2000.
28. In the case of Prashant Haribhau Khawas v. State of Maharashtra and others16, the Division Bench was considering Section 10 of the said Act. This was a case where the Petitioners had obtained caste certificates recording that they belong to Halba, a Scheduled Tribe. The Caste Scrutiny Committee invalidated the caste certificates.
A prayer was made in the Petition for protection on the basis of the decision of the Apex Court in the case of Milind. The State Government opposed the prayer by relying upon Section 10 of the said Act by contending that in view of the consequences provided under Section 10, the protection cannot be granted to the Petitioners. In 16 [2008(2) Mh.L.J. 322 ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 36 wp-8014.12,6323,5196,11518,11740n5098.13 Paragraph 28 of the decision, the Division Bench considered the arguments based on Section 10 and negatived the argument of the Government that Section 10 of the said Act is retrospective in operation.
Therefore, the Division Bench protected the employment of the Petitioners. We must note here that in the facts of the case of Prashant Haribhau Khawas, the Petitioners were granted employment before the said Act came into force.
29. At this stage, we may make a reference to the decision of the Apex Court in the case of State of Maharashtra and others v. Sanjay K. Nimje. This was a case where the Respondent before the Apex Court was appointed in the Government employment on 29 th June 1995. The Respondent claimed to be a member of Halba community which is a Scheduled Tribe. However, the Caste Scrutiny Committee found that the Respondent was Koshti and not Halba. The caste Koshti has been declared as Special Backward Class in the State of Maharashtra.
Before this Court, reliance was placed on the policy of the State Government incorporated in the Government Resolution dated 15 th June 1995. This Court granted protection on the ground that though the Respondent was appointed on 29 th June 1995, he was selected on 15th June 1995 when the said Government Resolution came into force.
In the Appeal preferred by the State of Maharashtra, reliance was made ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 37 wp-8014.12,6323,5196,11518,11740n5098.13 on Section 10 of the said Act. The Apex Court in Paragraphs 14 and 15 held that the date of appointment of the Respondent was 29 th June 1995 and the Government Resolution protects only those who were appointed prior to 15th June 1995. Therefore, the Apex Court observed that the said Act will apply as the Respondent was not protected by the Government Resolution. The Apex Court in Paragraph 21 observed thus:
"21. Thus, it is a clear case where the provisions of the 2000 Act would apply. We see no reason as to why the statutory provisions should not be directed to apply in the instant case. It may be that at one point of time, keeping in view the stand taken in a particular case, some indulgence had been shown. Indulgence might have been shown to the students or who were found to have acted bona fide but the same would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative Act."
(emphasis added)
30. At this stage, a reference will have to be made to another decision of the Apex Court in the case of Union of India and others v.
Deepak Y. Gotefode17. This was a case where the Respondent before the Apex Court was appointed on the post of clerk on 6 th June 1995 on a post reserved for Scheduled Tribe. He claimed that he belongs to Halba, a Scheduled Tribe. The Caste Scrutiny Committee invalidated the caste claim. The order of termination of employment was passed 17 [2008(1) Mh.L.J. 790] ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 38 wp-8014.12,6323,5196,11518,11740n5098.13 against the Respondent on the basis of the said order which was set aside by the Central Administrative Tribunal. The Tribunal relied upon the decision of the Apex Court in the case of Milind. The Caste Scrutiny Committee had found that the Respondent belongs to the caste "Koshti". Reliance was placed on the Government Notification dated 15th June 1995. In Paragraph 5, the Apex Court held thus:
"5. In view of the above reasoning, we are of the considered view that the respondent obtained appointment by annexing an incorrect certificate and his subsequent conduct disentitles him from claiming any equitable relief. The respondent has deprived a genuine person belonging to Halba, Scheduled Tribe, from getting appointment and thus cannot be protected to take advantage of his own wrong. There is no reason for the Court to disturb the finding of facts arrived at by the Scrutiny Committee and no reason whatsoever has been given in the impugned judgment for not accepting the view of the Committee. The Court or the Tribunal would not embark upon the jurisdiction which is vested in the Scrutiny Committee. The view taken by the Committee calls for no interference. Resultantly, this writ petition is allowed. The impugned judgment of the Tribunal dated 20th April 2006 is set aside. The petitioners are at liberty to take action against the respondent in accordance with law."
31. Now we turn to the decision in Rajendra Ramaji Mahisbadwe v. Joint Commissioner and Others. This was a case where the Petitioner was appointed on a post reserved for Scheduled Tribe on ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 39 wp-8014.12,6323,5196,11518,11740n5098.13 the basis of the caste claim that he belongs to Halba, a Scheduled Tribe.
The Caste Scrutiny Committee invalidated the caste certificate and accordingly a letter dated 3rd November 2009 terminating the employment of the Petitioner was issued. The challenge in the Petition was restricted to the termination of the Petitioner by accepting that he does not belong to Halba. The Petitioner relied upon a decision of the Apex Court in the case of Milind. In the light of the decision of the Full Bench in the case of Ganesh Khalale, this Court declined to protect the employment of the Petitioner on the ground that the directions have been issued in the case of Kavita Solunke in exercise of the powers under Article 142 of the Constitution of India. However, to this extent, the said decision is not a binding precedent as it does not consider the earlier binding precedent in the case of Prabhakar Nandanwar.
32. At this stage, we may also make a useful reference to a decision of the Division Bench in the case of Apurva Ashok Gokhale v.
State of Maharashtra and Others.18 The Division Bench while relying upon Section 10 of the said Act held that the benefit accrued to the student on the basis of the caste certificate which was invalidated has to be withdrawn.
18 [2013(1) Mh.L.J.139] ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 40 wp-8014.12,6323,5196,11518,11740n5098.13
33. There are submissions made in some of the Petitions based on the State Government Resolution dated 15 th June 1995. The said Government Resolution applies to a limited category of employees who have been appointed prior to the cut off date i.e. 15 th June 1995. In the case of Kumari Bhamini Sadashiv Thanekar V/s. State of Maharashtra and Others,19 a Division Bench of our Court held that there is nothing in the said Act of 2000 to suggest even remotely that the legislature intended to take away the benefits acquired under the Government Resolution dated 15th June 1995.
34. Now, at this stage, we must make a reference to the recent decisions of this Court dated 5th, 8th, 9th and 10th July 2013 in Writ Petition No.5530 of 2012 (Ku. Vijaya Deorao Nandanwar vs Chief Officer) and other connected Petitions. We have carefully perused the said judgment. The said judgment refers to various decisions of the Apex Court which we have considered. The Division Bench has relied upon the decision in the case of Milind without noticing the decision of the Full Bench in the case of Ganesh Rambhau Khalale. Thereafter, the Court has referred to the decision in the case of Kavita Solunke. From paragraphs 27 to 33 of the decision, it appears that the Division Bench invoked Article 14 of the Constitution of India for protecting the 19 WP No.194 of 2003 decided on 14th August 2003 ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 41 wp-8014.12,6323,5196,11518,11740n5098.13 employment of similarly placed persons. Perusal of the operative part of the said decision shows that the Division Bench has protected the employment of the Petitioners as of 28th November 2000. We do not find in that decision any proposition or declaration of law.
35. The summary of our conclusions is as under:-
(i) When a person secures an appointment on a reserved post after 2nd September 1994, as a consequence of invalidation of his caste claim by the Caste Scrutiny Committee, direction 15 in the case of Madhuri Patil will have to be implemented;
(ii) In case of appointments made to reserved posts after coming into force of the said Act, on the invalidation of the caste claim/cancellation of the caste certificates by the Caste Scrutiny Committee, the consequences provided in Section 10 of the said Act shall follow;
(iii) Notwithstanding the decision in the case of Madhuri Patil and Section 10 of the said Act, the protection ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 42 wp-8014.12,6323,5196,11518,11740n5098.13 to employment can be granted only to those who are governed by the law laid down by the Apex Court in the case of Kavita Solunke as held in Paragraph 27 above. We must reiterate that the decision in the case of Kavita Solunke is confined only to those who were claiming to be Halbas and will not apply to the persons who claimed benefit of reservation on the basis of any other caste and whose claim has been negatived even if their appointments had become final on or before 28 th November 2000. All the conditions in Kavita Solunke, as enumerated in Paragraph 27, must be met for any protection to be afforded to the person's employment.
(iv) The Government Resolution dated 15th June 1995 holds the field only in relation to employee appointed before the cut-off date mentioned therein and to whom the same is otherwise applicable.
(v) The protection which can be extended to the employees in terms of Clauses (iii) and (iv) above ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 43 wp-8014.12,6323,5196,11518,11740n5098.13 shall be only in relation to the post to which the initial appointment is made.
36. Now we turn to the individual cases which were argued before us. In Writ Petition No.8014 of 2012, the Petitioner was appointed on a post reserved for Scheduled Tribe on the basis of his claim that he belongs to "Koli Mahadeo", a Scheduled Tribe. There is an affidavit containing undertaking filed by the Petitioner affirmed on 27th June 2013 stating that the Petitioner will not claim any benefit of reservation on the footing that he belong to a Scheduled Tribe. The order dated 3rd May 2013 specifically records the statement of the Petitioner that he is giving up his claim that he belongs to Koli Mahadeo, a Scheduled Tribe. The appointment of the Petitioner cannot be protected under the G.R dated 15 th June 1995. In view of what we have held above, the Petitioner is disentitled to any protection.
37. As far as Writ Petition No.6323 of 2013 is concerned, the Petitioner was claiming that he belongs to caste Halba, which is a Scheduled Tribe. Initially, on 4th January 1996, the Petitioner was appointed as a Data Entry Operator in the office of the Commissioner of Central Excise. On 25th January 1999, the appointment of the Petitioner was confirmed. Therefore, the Petitioner will be entitled to protection ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 44 wp-8014.12,6323,5196,11518,11740n5098.13 on the basis of the decision of the Apex Court in the case of Kavita Solunke provided the Petitioner files an undertaking giving up her claim that she belongs to Halba, a Scheduled Tribe. Moreover, the employment of the Petitioner as of 28 th November 2000 will have to be protected. However, the Petitioner will not get any protection as far as her promotions, if any, on the posts reserved for Scheduled Tribes.
38. As far as Writ Petition No.5196 of 2013 is concerned, on 29th June 1998, the Petitioner was appointed as a Clerk in the office of the Government Pleader, High Court, Mumbai, on a post reserved for Scheduled Tribe on the basis of his claim that he belongs to the caste "Dhangad". The order of this Court dated 24 th June 2013 records the statement of the Petitioner that the Petitioner will file an undertaking that he will not claim any benefit of reservation of Scheduled Tribe.
Thus, the Petitioner has accepted the impugned order of the Caste Scrutiny Committee. Hence, the Petitioner is not entitled to any protection.
39. As far as Writ Petition No.11518 of 2012 is concerned, the appointment of the Petitioner was as a Clerk-cum-Typist with the Respondent No.3 is of 13th October 1997. The Petitioner was appointed on a post reserved for Scheduled Tribe on the basis of his claim that he ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 45 wp-8014.12,6323,5196,11518,11740n5098.13 belong to Koli Mahadeo, a Scheduled Tribe. Now his caste claim was invalidated. In this Petition, there is no statement made by the Petitioner that he is accepting the order of the Scrutiny Committee. As we have not heard the learned counsel appearing for the Petitioner on merits of the order of the Caste Scrutiny Committee, we are not passing any final order in this Petition.
40. As far as Writ Petition No.11740 of 2012 is concerned, in this case, the Petitioner was appointed on 30 th December 1999 on a post reserved for scheduled tribes on the footing that he belongs to Koli Mahadeo, a Scheduled Tribe. Even in this case, there is no statement made by the Petitioner that he was accepting the order of the Caste Scrutiny Committee by which his caste claim was invalidated. We are, therefore, not passing any final order in this Petition.
41. As far as Writ Petition No.5098 of 2013 is concerned, the Petitioner has stated that on 12 th April 1990, he was appointed as Kamgar Talathi after his selection through the Regional Selection Committee. The Petitioner claimed that he belongs to Koli Mahadeo, a Scheduled Tribe. As stated earlier, the caste claim of the Petitioner that he belongs to Koli Mahadeo has been negatived. By filing an undertaking dated 4th August 2013, the Petitioner has given up his caste ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 46 wp-8014.12,6323,5196,11518,11740n5098.13 claim that he belongs to Koli Mahadeo, a Scheduled Tribe. He has also given an undertaking that he will not claim any benefit on the basis of his caste claim that he belongs to Koli Mahadeo, a Scheduled Tribe.
The employment of the Petitioner will have to be protected in view of the G.R dated 15th June 1995.
42. Hence, in the light of what we have already held in Paragraph 35 above, we pass the following order.
ORDER :
(a) Writ Petition No.8014 of 2012 is rejected. If the Petitioner is still in the employment as of today, his employment shall not be terminated for a period of three months from today;
(b) The impugned order dated 6th June 2013 in Writ Petition No.6323 of 2013 is upheld. However, the employment of the Petitioner on the post held by her on 28th November 2000 shall not be disturbed only on the ground of her failure to produce caste validity certificate subject to condition that the Petitioner shall file an undertaking to this Court ::: Downloaded on - 27/11/2013 20:34:03 ::: ash 47 wp-8014.12,6323,5196,11518,11740n5098.13 within a period of four weeks from today stating that she has given up her claim that she belongs to Halba, a Scheduled Tribe and she will not claim any benefit on the basis of such caste claim. However, we make it clear that if the Petitioner is promoted to any post reserved for the scheduled tribes after 28 th November 2000, the Petitioner will be disentitled to protection as far as the said promotional posts are concerned;
(c) As far as Writ Petition No.11518 of 2012 and Writ Petition No.11740 of 2012 are concerned, the same shall be separated as the orders impugned will have to be examined on merits. Ad-interim relief granted therein will continue to operate for a period of six weeks;
(d) As far as Writ Petition No.5196 of 2013 is concerned, the same stands dismissed. However, the ad-interim relief granted on 24 th June 2013 shall continue to operate for a period of three months from today;
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(e) As far as Writ Petition No.5098 of 2013 is concerned, the impugned order dated 15th February 2013 is hereby confirmed. The undertaking of the Petitioner dated 4th August 2013 is hereby accepted.
In view of the said undertaking, the employment of the Petitioner on the post held by him as of 28 th November 2000 shall stand protected and shall not be terminated only on the ground of his failure to produce the caste validity certificate. We make it clear that if the Petitioner has been promoted to any promotional post which was reserved for the scheduled tribes, the Petitioner will not be entitled to protection of the said post ;
(f) Except Writ Petition Nos.11518 of 2012 and Writ Petition No.11740 of 2012, the other Petitions are disposed of. The said two Petitions shall be placed before the appropriate Court for admission.
( G.S. PATEL, J) ( A.S. OKA, J )
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