Bombay High Court
Shankarrao Rangrao Patkar vs State Of Maharashtra on 5 December, 2009
Bench: D.D. Sinha, F.M. Reis
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3590 OF 2009
Shankarrao Rangrao Patkar,
resident of Pati, Post Keliveli,
Tahsil and District Akola. ... Petitioner
- Versus -
1) State of Maharashtra, through
its Secretary, Department of
General Administration,
Mantralaya, Mumbai - 400 032.
2) Maharashtra State Road Transport
Corporation, through its Secretary,
Wahatuk Bhavan, Dr. Anand Rai
Nair Marg, in front of Bombay
Central Railway Station,
Mumbai - 400 008.
3) Divisional Controller, Akola
Division, Maharashtra State
Road Transport Corporation,
Akola. ... Respondents
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Shri S.P. Kshirsagar, Advocate for the petitioner.
Shri N.W. Sambre, Government Pleader for the respondent no.1.
Shri V.G. Wankhede, Advocate for the respondent nos. 2 and 3.
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CORAM : D.D.SINHA AND F.M.REIS, JJ.
DATED : DECEMBER 5, 2009
ORAL JUDGMENT (PER D.D.SINHA, J.) :
Rule returnable forthwith. Heard finally with the consent of
Shri Kshirsagar, learned Counsel for the petitioner, Shri Sambre,
learned Government Pleader for the respondent no.1, and Shri
Wankhede, learned Counsel for the respondent nos. 2 and 3. The
petition is directed against the order/communication dated 11.8.2009
issued by the respondent no.3 Divisional Controller, Maharashtra State
Road Transport Corporation, Akola whereby petitioner is informed that
he is appointed as Senior Clerk (Accounts) after 15.6.1995 from the
Scheduled Tribe category and since his caste certificate is invalidated
by the Caste Scrutiny Committee, he is not entitled for grant of
protection in service in view of Government Resolution dated
15.6.1995, hence, his service shall come to an end with effect from
26.8.2009.
2)
Shri Kshirsagar, learned Counsel for the petitioner, states
that in view of law laid down by the Apex Court in State of
Maharashtra vs. Milind and others (2001 (1) Mh.L.J. 1), once
employment of the employee is finalised, then even though the caste
certificate of such employee is invalidated by the Caste Scrutiny
Committee, the employment of such employee is protected by the said
decision.
3) Learned Counsel Shri Kshirsagar further states that the
petitioner was appointed on the post reserved for Scheduled Tribe
category and though the Caste Scrutiny Committee invalidated the
caste certificate of the petitioner, service of the petitioner is protected
in view of Government Resolution dated 15.6.1995 and the petitioner
can be accommodated in the quota reserved for the Special Backward
Class category. In order to substantiate this contention, reliance is
placed on the decision of the Apex Court in Punjab National Bank and
another vs. Vilas s/o Govindrao Bokade and another (2007 (3) Mh.L.J.
805).
4) It is contended by the learned Counsel for the petitioner that
the State Government is competent to issue Government Resolution
dated 15.6.1995 as Article 16(4) of the Constitution provides for
reservation in appointments or posts in favour of any backward class
citizens, which, in the opinion of the State Government, is not
adequately represented in the State services. In order to substantiate
this contention, reliance is placed on the decision of the Full Bench of
this Court in Gopalkrishna Ramchandra Chavan and others v. State of
Maharashtra and others (AIR 1987 Bombay 123).
5) Shri Sambre, learned Government Pleader for the
respondent no.1 and Shri Wankhede, learned Counsel for the
respondent nos. 2 and 3, submit that contentions canvassed by the
learned Counsel for the petitioner do not demonstrate the correct legal
position. It is contended that Full Bench of this Court in Ganesh
Rambhau Khalale vs. State of Maharashtra and others (AIR 2009
Bombay 122), after considering the law on the subject, has held that
the law laid down by the Apex Court in Milind's case (cited supra) was
under Article 142 of the Constitution and not under Article 141 of the
Constitution. This view is followed by another Full Bench of this
Court in Vandana Bharat Kauthalikar v. State of Maharashtra and
others (2009 (5) ALL MR 828). Similarly, the decision of the Apex
Court in the case of Milind (cited supra) is also considered by another
Bench of the Apex Court in Bank of India and another v. Avinash D.
Mandivikar (2005 (4) Mh.L.J. 409) and as per the said decision, the
law laid down by the Apex Court in Milind's case (cited supra) is
restricted to that case only. It is further submitted that Government
Resolution dated 15.6.1995 has been held to be invalid by the Division
Bench of this Court in Sunil Ingle v. Zilla Parishad and another (2009
(2) All MR 867). The learned Government Pleader has also cited
other judgments of this Court and Supreme Court. It is, therefore,
contended that contentions canvassed by the learned Counsel for the
petitioner suffer from lack of merit and are liable to be rejected.
6) We have given anxious thought to the contentions canvassed
by the respective learned Counsel for the parties and considered the
judgments of Apex Court and High Courts. The decision of the Apex
Court in Milind's case is the first in point of time where protection is
given to a person whose caste claim was invalidated by the Caste
Scrutiny Committee and, therefore, whether the observations made by
the Apex Court in Milind's case while granting protection was the law
declared by the Apex Court under Article 141 of the Constitution or
those were the observations made by Apex Court in exercise of power
under Article 142 of the Constitution and were limited to that case
need to be considered.
7) In the last few lines of the judgment in Milind's case (cited
supra), which are relevant, the Apex Court has observed thus :
"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."
The main question, i.e. whether these observations, which provide
protection in admissions and in the appointments, in the peculiar facts
and circumstances of that case, were restricted to Milind's case only or
not has been considered by the Apex Court in the case of Bank of India
(cited supra) and in para (10) of the said judgment, has observed thus :
"10. The protection under the Milind's case (supra)
cannot be extended to the respondent no.1 employee as the
protection was given under the peculiar factual background
of that case. The employee concerned was a doctor and had
rendered long years of service. This Court noted that on a
doctor public money has been spent and, therefore, it will
not be desirable to deprive the society of a doctor's service.
Respondent No.1 employee in the present case is a bank
employee and the factor which weighed with this Court
cannot be applied to him."
The Apex Court in para (13) of the said judgment finally concluded the
issue by observing thus :
"13. Looked from any angle, the High Court's
judgment holding that the respondent No.1 employee was to
be reinstated in the same post as originally held is clearly
untenable. The order of termination does not suffer from
any infirmity and the High Court should not have interfered
with it. By giving protection for even a limited period, the
result would be that a person who has a legitimate claim
shall be deprived the benefits. On the other hand, a person
who has obtained it by illegitimate means would continue to
enjoy it notwithstanding the clear finding that he does not
even have a shadow of right even to be considered for
appointment."
The above referred observations made by the Apex Court make it
implicitly clear that the law laid down by the Apex Court in Milind's
case was not in the nature of the general proposition of law and the
protection granted to the petitioner in the said case was in view of
peculiar facts and circumstances of that case and, therefore, by
necessary implication, the power exercised by the Apex Court while
granting protection in Milind's case was necessarily under Article 142
of the Constitution and was not the law declared under Article 141 of
the Constitution.
8) Similarly, the three Judges' Bench of the Supreme Court in
paras (5) and (7) of the judgment in Union of India vs. Dattatraya
Namdeo Mendhekar and others (2008 (2) Mh.L.J. 720) has observed
thus :
"5. Milind (supra) 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 the "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 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 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.
7. We are of the view that the High Court failed
to appreciate the ratio of Milind. Having held that the first
respondent had falsely claimed that he belonged to a
Scheduled Tribe, it wrongly extended him the benefit of
continuing in employment."
The observations of the Apex Court in the above referred decision
clearly demonstrate that the person securing employment by making a
false claim regarding caste cannot be protected merely on the basis of
length of service in the employment once his caste certificate is
invalidated by the Caste Scrutiny Committee and the proper course in
such situation is to cancel his appointment. Therefore, it can safely be
concluded that the observations made by the Apex Court in Milind's
case were in the peculiar facts and circumstances of that case, which
cannot be made applicable in other cases, since they were restricted
only to that case.
9) Similarly, the Apex Court in Vishwanatha Pillai v. State of
Kerala and others (AIR 2004 SC 1469) has held that the observations
made by the Apex Court in Milind's case do not constitute ratio
decidendi of the said case, but are the observations made by the Apex
Court in exercise of power under Article 142 of the Constitution to
grant relief in view of peculiar facts and circumstances of the said case.
It is, therefore, evident that the observations made by the Apex Court in
para (36) of Milind's case not being the ratio decidendi of that case was
not the law declared by the Apex Court under Article 141 of the
Constitution and, therefore, protection granted to the petitioner in the
said case by the Apex Court was by exercising power under Article 142
of the Constitution in the peculiar facts and circumstances of that case.
10) The Full Bench of this Court after taking into consideration
the law laid down by the Apex Court in Milind's case as well as other
decisions of the Apex Court referred to hereinabove, in para (13) of
the judgment in the case of Ganesh Rambhau Khalale (cited supra)
has observed 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 :
(1) The observations/directions issued by the
Supreme Court in para 36 of the judgment in the case of
State vs. Milind reported in 2001 (1) Mah. L.J. (S.C.) 1
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 even in cases
relating to admissions."
11) The law declared by the Full Bench of this Court in the case
of Ganesh Rambhau Khalale (cited supra) shows that the observations
made by the Apex Court and protection granted to the petitioner in
Milind's case was by exercising power under Article 142 of the
Constitution in the peculiar facts and circumstances of that case. The
decision and law declared by the Full Bench has been followed by
another Full Bench of this Court in the case of Vandana Bharat
Kauthalikar (cited supra). The above referred decisions of the Apex
Court coupled with the decisions of the Full Benches of this Court
clearly show that the protection granted to the petitioner in Milind's
case since not based on the declaration of law under Article 141 of the
Constitution, cannot be extended in other cases.
12) In order to put the conflict pertaining to doctrine of
precedents at rest, we have considered the decision of the learned
Single Judge, dated 16.10.2009 rendered in Writ Petition No.
1561/2009 (Raju s/o Laxman Gadekar vs. Presiding Officer, School
Tribunal and others). The learned Single Judge in paras (8) and (9) of
the said judgment has observed thus :
"8. Now coming to the question of protection at the
outset, I find that what is binding on this Court is the Constitution
Bench judgment of the Supreme Court. In the case of Union of
India versus Vimal Murlidhar Kumbhre and others, cited supra,
the Supreme Court while referring to the dictum in Milind's case
held thus :
"We find no ground to interfere as the appointment of the
first respondent was in July/August 2000 and her case will be
covered by the following observation of the Constitution
Bench in State of Maharashtra vs. Milind and others (2001
(1) SCC 4 :
"Having regard to the passage of time, in the given
circumstances, including interim orders passed by this
Court in SLP (C) No.16372 of 1985 and other related
affairs, we make it clear that the admissions and
appointments that have become final, shall remain
unaffected by this judgment."
The special leave petition is dismissed accordingly."
9. Perusal of the above judgment shows that the
Hon'ble Supreme Court held that the Constitution Bench
judgment of the Supreme Court in the case of State of
Maharashtra versus Milind and others was clearly applicable to
the extent of protection even in respect of appointments already
made. When according to the Supreme Court, Constitution
Bench judgment would apply in such cases, there is no reason
for me to follow the Full Bench decision of this Court and,
therefore, I propose to apply protection in terms of the
Constitution Bench judgment of the Supreme Court in the case
of State of Maharashtra versus Milind and others to extend
protection to the appointment of petitioner besides the Circular
dated 15.6.1995. In other words, without taking help of
Government Resolution dated 15.6.1995 in accordance with the
law laid down by the Supreme Court in the Constitution Bench
judgment in the case of State of Maharashtra versus Milind and
others, the petitioner would be entitled to such protection. I,
therefore, hold that the petitioner who served with the
respondents - Management for over 20 years is entitled to
protection."
13) With great humility and due respect, we want to observe
that the Single Judge in a most casual manner has disregarded the
decision of the Full Bench of this Court even without considering the
law, ratio and effect of either judgment of the Apex Court in Milind's
case or that of the Full Bench of this Court in the case of Ganesh
Rambhau Khalale (cited supra). In our view, if the notions about the
effect of binding nature of judicial precendents are not cleared, it
would affect the doctrine of judicial precedents which enunciate rules
of law which forms the foundation of our system of administration of
justice. We want to express that before applying the decision of the
Apex Court to the case in hand, the Court should ascertain with
reference to the question of law decided by the Apex Court, ratio and
principle upon which the question was decided by the Apex Court in
that case since the same alone is binding precedent. It is well settled
that the decision of the Court upon a question of law is considered to be
a binding precedent and this must be ascertained and determined by
analysing all the material facts and issues involved in the case. The
scope and authority of the precedent should never be expanded
unnecessarily beyond the need of the given situation. The ratio
decidendi of the judgment can be found out only on reading the entire
judgment and not by reading the mere few observations made in some
of the paragraphs of the judgment, unless it is ascertained in what
context those observations are made.
14) A Judgment of the Apex Court operates as precedent only
for what it decides, known as "ratio decidendi" and not for its general
or casual observation. What is the essence in a decision is its ratio and
not every observation found therein. What is binding under Article
141 of the Constitution of India is only the law declared by the
Supreme Court with reference to the questions decided by the Apex
Court, based on the principle involved in that case. Hence, before
applying decision of the Apex Court, all these factors must be
ascertained and it is thereafter the decision of the Apex Court should be
applied to the facts of the case in hand.
15) The Full Bench of this Court in the case of Ganesh
Rambhau Khalale (cited supra) after ascertaining with reference to the
question of law as well as principle upon which the said question was
decided by the Apex Court in Milind's case as well as in the cases of
Punjab National Bank, Union of India, Vishwanatha Pillai, held that the
observations made by the Apex Court in para (36) of the judgment in
Milind's case was not the law declared by the Apex Court under
Article 141 of the Constitution and those observations were made by
the Apex Court in exercise of power under Article 142 of the
Constitution and for want of said power, such protection cannot be
granted by this Court. This declaration of law by the Full Bench of this
Court is completely binding on the smaller Benches, the Single Bench
was no exception to the general rule. Merely because a Single Bench
entertains another view, it is not open either to distinguish the decision
of the Full Bench or declare the law different than the one declared by
the Full Bench. If the situation is so compelling, in that event, the
appropriate course would be to make a reference to the Chief Justice
after recording reasons.
16) The judicial decorum and legal propriety demand that where
a Single Bench or Division Bench does not agree with the decision of
the Bench of coordinate jurisdiction, the matter shall be referred to the
larger Bench. It is a subversion of judicial process not to follow this
precedent. It is well settled that the doctrine of binding precedent has
an import of permitting certainty and consistency in judicial decisions
and enabling an organic development of laws besides providing
assurance to the individual as to consequences of transactions forming
part of his daily affairs and, therefore, there is a need for a clear and
consistent enunciation of legal principles in the decisions of this Court.
The Full Bench of this Court in case of Emkay Exports, Mumbai and
another .vs. Madhusudan Shrikrishna reported in 2008 (4) Mh.L.J.843
(in para 12) has observed that there are judiciously accepted exceptions
to the rule of precedent : they are decisions per incuriam, sub-silentio
and state decisis. These principles explain when and where a
precedent, which is otherwise a good law, necessarily need not be
accepted in subsequent judgments if it fully satisfies essentials of these
exceptions. However, this situation does not exist in the present case.
17) In the circumstances, the law declared by the Full Benches
of this Court in the case of Ganesh Rambhau Khalale (cited supra) and
Vandana Bharat Kauthalikar (cited supra) is a valid declaration of law
on the subject and is binding on the other coordinate Benches, Division
Benches and Single Benches of this Court.
18) The petitioner in the present petition is also not entitled to
get any protection in service in view of Government Resolution dated
15.6.1995 in view of the decision of this Court in the case of Sunil
Ingale (cited supra). This Court, in para (2) of the judgment, has
observed thus :
"2. Perusal of the government resolution dated
15.6.1995 shows that the government has by resolution
dated 7.12.1994 declared that certain castes are to be treated
as Special Backward Class and for that 2% reservation is
made in government/semi government service and
educational institutions. Then it is stated that the
reservation to be given to the Special Backward Class shall
be given for direct recruitment and also for promotion. It
further states that those persons who have been appointed
against seats reserved for Scheduled Tribe in
government/semi government service, if that person is
found to be belonging to Special Backward Class, his
services should not be terminated and he should not be
reverted. After having heard the learned counsel for the
petitioner, we find that this government resolution which
directs protection of the services of the persons belonging to
Special Backward Class is invalid. It is violative of
guarantee under articles 14 and 16 of the Constitution of
India."
The above referred observations clearly show that the Government
Resolution dated 15.6.1995 is violative of guarantee given under
Articles 14 and 16 of the Constitution. In view of the decision of this
Court in the case of Sunil Ingle (cited supra), the question of grant of
protection in service to the Special Backward Class employee after
invalidation of his caste claim by the Caste Scrutiny Committee does
not arise and, therefore, contention canvassed by the learned Counsel
for the petitioner in view of the decision of the Full Bench of this Court
in the case of Gopalkrishna Ramchandra Chavan and others (cited
supra) does not further the case of the petitioner.
19)
So far as decision of the Apex Court in the case of Punjab
National Bank and another (cited supra) is concerned, the Apex Court
has kept the issue pertaining to Government Resolution dated
15.6.1995 open and, therefore, this decision is of no help to the
petitioner.
20) For the reasons stated hereinabove, the petition suffers from
lack of merit and hence, the same is dismissed. The rule is discharged.
No order as to costs.
JUDGE JUDGE
khj
