Bombay High Court
Ganesh Rambhau Khalale vs The State Of Maharashtra Ors on 7 January, 2009
Bench: S.B. Mhase, A.P. Deshpande, Prasanna B. Varale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4524 OF 2008
Ganesh Rambhau Khalale ..... .... Petitioner
V/s
The State of Maharashtra Ors.... .... Respondents
Mr.Anil Mardikar, Adv. For the petitioner.
Mr.Abhay Patki, AGP for the State.
CORAM: S.B.MHASE, A.P.DESHPANDE
ig AND
P.B.VARALE, JJJ.
DATED: 7th JANUARY, 2009.
ORAL JUDGMENT:(per A.P.Deshpande, J.)
Having noticed divergent views expressed in two judgments
delivered by co-ordinate Benches of this Court the instant writ
petitions are referred to this bench of three Judges which involve a
common question of law. The reference is in relation to grant or
refusal of protection to candidates appointed or admitted prior to
20.11.2000 against the posts reserved for scheduled tribe/scheduled
caste category of the backward class on cancellation of their
caste/tribe certificates pursuant to the verification of caste claim by
the Scrutiny Committee. Before we proceed to deal with the relevant
issue it would be appropriate to refer to the views taken in the two
judgments. The judgment first in point of time is in Writ Petition
No.853 of 2007 (Union of India & Ors. V/s Deepak Y.
Gotefode
)
2008 (1) Mh.L.J. 790. The respondent in the said writ petition was
appointed as lower division clerk against a post reserved for
scheduled tribe. In clause 20 of the letter of appointment issued to
the respondent it was specifically stated that the appointment was
provisional and was subject to caste/tribe verification. The letter of
appointment made it further clear that if the caste certificate is found
to be false, the services of the respondent would be liable to be
terminated without assigning any reason. A copy of the caste/tribe
certificate was forwarded to the Caste Scrutiny Committee, Nagpur
and despite repeated demands from the Committee the respondent
did not produce the original certificate. Hence ultimately on
consideration of all the relevant factors the caste/tribe certificate
came to be cancelled and confiscated, on the basis of which the
respondent had sought the appointment. Aggrieved thereby the
respondent filed an original application before the Central
Administrative Tribunal and the Central Administrative Tribunal
having allowed the same, the Union of India preferred writ petition in
the High Court which in turn was allowed by the High Court quashing
the judgment and order passed by the Tribunal. While reversing the
judgment of the Tribunal the High Court held that the respondent had
sought the appointment by mis-representation and hence cannot be
permitted to take advantage of his own wrong. It is also held that as
the appointment was procured by playing fraud by producing false
caste certificate the respondent cannot be said to be holding the post
within the meaning of article 311 of the Constitution of India. The
said appointment has been held to be void since its inception. While
allowing the application the Tribunal had placed reliance on a
judgment of the Supreme Court reported in the case of State of
Maharashtra v/s Milind
& Ors.,
2001 (1) Mh.L.J. (SC) 1 - AIR 2001
SC 393 and had held that the respondent (before the High Court) was
entitled to the relief prayed for.
2. The later Division Bench judgment is in Writ Petition No.3980
of 2006 along with batch of other connected writ petitions in the case
of Prashant
Haribhau
Khawas v/s State of Maharashtra & Ors.
2008(2) Mh.L.J. 322 wherein the Division Bench has considered the
issue of grant of protection to number of petitioners in relation to
appointments in the light of the observations made by the Supreme
Court in the case of State of Maharashtra v/s Milind & Ors. The
Division Bench has decided the question in favour of the petitioners
before it and granted protection to the appointments by placing
reliance on the observations made by the Supreme Court in para 36 of
the said judgment. The Division Bench after noticing the fact that all
the petitioners were appointed prior to the date of the judgment
rendered by the Supreme Court in State of Maharashtra v/s Milind it
held that the petitioners are entitled to the protection sought for. The
Division Bench has also held that observations made in para 36 of the
said judgment is `Law declared by the Supreme Court'
and hence
proceeded to follow the same. Thus in substance two fold findings
are recorded:
(1) That the observations made by the Supreme Court in
para 36 is the ratio decidendi hence construed the same as `Law
declared by the Supreme Court'
and followed it.
(2) That the judgment of the Supreme Court in the case
of State of Maharashtra v/s Milind operates prospectively and
not retrospectively and hence all admissions and appointments
that have become final on the date of the judgment shall remain
unaffected and thus need to be protected.
For proper understanding of the dispute we reproduce Para 36 in the
case of State V/s Milind herein below:
"36. Respondent No.1 jointed 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
practicing as doctor. In this view and at this length of time it is
for nobody's
benefit to annul his admission. Huge amount is
spent on each candidate for completion of medical course. No
doubt, one Scheduled Tribe candidate was deprived of joining
medical course by the admission given to respondent No.1. If
any action is taken against respondent No.1, it may lead
depriving the service of a doctor to the society on whom public
money has already been spent. In these circumstances, this
judgment shall not affect the degree obtained by him and his
practicing as a doctor. But we make it clear that he cannot
claim to belong to the Scheduled Tribe covered by the
Scheduled Tribes Order. In other words, he cannot take
advantage of the Scheduled Tribes Order any further or for any
other constitutional purpose. Having regard to the passage of
time, in the given circumstances, including interim orders
passed by this Court in SLP (C)No.16372/85 and other related
affairs, we make it clear that the admissions and appointments
that have become final, shall remain unaffected by this
judgment."
3. Three writ petitions are placed before this Full Bench, two of
which pertain to seeking protection of appointments whereas one
relates to admission. It is undisputed that all the three petitioners are
appointed/admitted prior to the date of the Supreme Court judgment,
the date being 28.11.2000. Besides deciding the above referred
question the later Division Bench has also considered the question of
grant of protection to appointments made or admissions granted prior
to 15.6.1995 in the light of the Government Resolution but this issue
has not been argued before us as in the facts of the present petitions it
does not arise for consideration, as the petitioners are
appointed/admitted after 15.6.95, viz. the cut of date, hence we are
not called upon to decide the said question.
4.
The Division Bench has held that the Supreme Court has made
its judgment prospectively operational and has protected all the
admissions and appointments which had attained finality. In other
words, what has been held in the judgment is that the observations
made in para 36 by the Constitution Bench of the Supreme Court is
the ratio decidendi which would bind all the Courts in view of the
mandate of Article 141 of the Constitution of India, it being the law
declared by the Supreme Court. Before we proceed to examine the
correctness of the said finding we formulate the question that needs
an adjudication.
(1) Whether the observations made or directions issued
by the Supreme Court in para 36 in the case of State of
Maharashtra v/s Milind, reported in 2001 (1) Mh.L.J. (SC) 1
(para 38 SCC) is declaration of law under Article 141 of the
Constitution of India which is binding on all the Courts or are
the said observations made/directions issued in exercise of
powers under Article 142 which only protect the petitioners in
that case in the facts and circumstances therein.
5.
The learned counsel appearing for the petitioners have
submitted that all the petitioners have secured employment prior to
28.11.2000 on which date the Constitution Bench of the Supreme
Court delivered the judgment in Milind'
s case (supra) over ruling the
judgment of Division Bench of the Bombay High Court delivered on
4.9.1985. The petitioners had obtained the caste/tribe certificates
showing them to be belonging Halba scheduled tribe. However said
certificates are invalidated by orders passed by the Caste Scrutiny
Committee as stated herein above. It is contended that based on the
observations made in para 36 of the judgment in Milind's
case (supra)
various orders are passed by this Court extending protection to the
appointments interpreting the said observations as laying down the
law. Our attention is also invited to many orders passed by the
Supreme Court as well, protecting the appointments and/or
admissions granted to the candidates. The basic issue which arises
for consideration is as to whether the observations made/directions
issued by the Constitution Bench of the Supreme Court in State of
Maharashtra V/s Milind is declaration of law by Supreme Court which
shall be binding on all Courts or whether the said observations are in
exercise of discretionary powers vested under article 142 of the
Constitution of India. If the observations in para 36 are held to be
law declared by the Supreme Court the present petitioner'
s
appointments/admissions would stand protected. However if the said
observations/directions are held to be issued pursuant to the
exercise of jurisdiction under article 142 which power is only
available to the Supreme Court, the petitioner's
appointments/admissions cannot be protected by this Court. Let us
examine the Supreme Court judgments which favour the submissions
made on behalf of the petitioners, interpreting the judgment in State
of Maharashtra v/s Milind. The first judgment is in the case of
R.Vishwanatha Pillai v/s State of Kerala & Ors., reported in (2004)
20 SCC 105. In this case the Supreme Court was considering the
cases of appointments so also admissions which were disposed of by a
common judgment by the High Court. Dealing with the appointments
the Supreme Court has held that a person procuring an appointment
in the post meant for reserved category candidate on the basis of false
caste certificate is not a person holding a civil post within the
meaning of article 311 and as such the appointment has been held to
be no appointment in the eye of law. While dealing with admissions
the Supreme Court observed in para 28 thus:
"28. In this case we find that the appellant had joined
Regional Engineering College in the year 1992. He completed
the course of his studies in the year 1996 under the interim
orders of (sic the High) Court which were subject to the final
orders to be passed in the writ petition. No purpose would be
served in withholding the declaration of the result on the basis
of the examination already taken by him or depriving him of the
degree in case he passes the examination. In terms of the
orders passed by the Constitution Bench of this Court in State of
Maharashtra v. Milind we direct that his result be declared and
he be allowed to take his degree with the condition that he will
not be treated as a Scheduled Caste candidate in future either in
obtaining service or for any other benefits flowing from the
caste certificate obtained by him. His caste certificate has been
ordered to be cancelled. Henceforth, he will be treated as a
person belonging to the general category for all purposes."
6. The next judgment is in the case of Sanjay Madhusudan
Punekar v/s State of Maharashtra & Ors. 2002 (2) Mh.L.J. SC 300.
The order passed by the Supreme Court is very short and the same
reads thus:
"Leave granted.
This Court has now decided the question of law against
the appellant. At the same time it has taken notice of passage of
time and, therefore, made its order prospective, keeping
unaffected appointments that had become final. This is an
appropriate case in which to apply the same principle having
regard to the fact that the appointment of the appellant was
made long back. Therefore, the only order that needs to be
made is to say that the judgment of this Court in State v/s
Milind & Ors, 2001 (1) Mh.L.J. SC (1) = 2001 (1) SCC 4 shall
not affect the appointment of the appellant.
Order on the appeal accordingly.
No order as to costs."
7. The third judgment relied upon by the learned counsel for the
petitioner is in the case of Central Warehouse Corpn. V/s
Jagdishkumar Vitthalrao Panjankar & Anr. in SLP (C)
No.25644/2004 wherein it was observed as under :
"The appellant claims that though he belongs to a Koshtis,
the sub-caste of the Halba Scheduled Tribe. The question came
up before the Bombay High Court that whether Koshtis is a sub-
caste of Halba or not, this question was decided by the Bombay
High Court and it was held that Koshtis is sub-caste of Halba
(ST) and every Koshtis may be treated as a Halba (1987
Maharashtra Law Journal 572). This matter came up in special
leave petition before this Court and this Court reserved the
judgment and took the view that the Koshtis is not a sub-caste of
Halba. However, while disposing of that appeal their Lordships
said in last two lines which reads:
"We make it clear that the admissions and
appointments that have become final, shall remain
unaffected by this judgment."
The Constitution Bench made it very clear that those
who have been given benefit of being as a Koshtis sub-caste of
Halba ST category their appointments though bad shall not be
disturbed. Thereafter, many matters followed and learned
counsel invited our attention to various orders passed by this
Court from time to time wherein liberal view had been taken
that those who have been given benefits shall not be revoked
but they will not be entitled to benefit in future. Similar is the
position here also in the present case."
8. The next judgment is in the case of Punjab National Bank &
Anr. V/s Vilas s/o Govindrao Bokade & Anr., 2007 (3) Mh.L.J. SC
805. This judgment needs to be dealt with more elaborately. In the
facts of the said case the respondent was a bank employee who was
appointed in the year 1989 on a reserved post of scheduled tribe. The
respondent was claiming to be belonging to Halba Scheduled Tribe.
On in-validation of his caste certificate by the Scrutiny Committee he
was terminated from the service in the year 2002. The said
respondent filed writ petition in the High Court challenging the order
passed by the Scrutiny Committee invalidating his tribe claim. The
bank employee had put forth two contentions viz; (i) that he is
protected by the Government Resolution dated 15.6.1995 the decision
wherein is reiterated in the subsequent Government Resolution dated
30.6.2004 and (ii)that his appointment stands protected by the
decision of the Constitution Bench of the Supreme Court in the case of
State v/s Milind. Reliance is placed primarily on the observations
made in para 36. The Bench comprised of two learned Judges who
have delivered separate judgments. Justice H.K. Sema has held that
the appointment of the bank employee is protected by Government
Resolution dated 15.6.95. However the said judgment does not deal
with the binding nature of the observations made in the case of State
v/s Milind. The other learned Judge Shri V.S.Sirpurkar has refrained
from deciding the question, as to whether the bank employee stands
protected under the Government Resolution dated 15.6.95 but has
concluded that the concerned employee's appointment stands
protected in view of the observations made in the case of State v/s
Milind. It is observed thus:
"5. It is not necessary for us to consider the question as
to whether protection provided in the Government Resolution
dated 15.6.1995 is applicable to a bank employee like the
respondent since the protection is provided in Milind's
case in no
uncertain terms. This court has very specifically observed at the
end of para 38 as under :
"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."
(This was of course after discussing the factual situation in that
case and particularly nothing the prejudice that could be caused
to the respondent-Milind in view of the period of 15 years spent
in finalizing the issue of his caste status.)
7. ....... ...... ..... Therefore it was tried to be
suggested before us that the observations were applicable to that
particular case and the facts therein. Ordinarily we would have
been persuaded to accept the argument. However fortunately
for respondent this observation was later on relied upon by this
Court in another decision in Civil Appeal No.3375/2000 (arising
out of SLP (C) No.6524/88) dated 12.12.2000 wherein this
Court observed:
" The appellant having belonged to Koshti caste
claimed to be included in the Scheduled tribe of Halba and
obtained an appointment as Assistant Engineer. When his
appointment was sought to be terminated on the basis that
he did not belong to scheduled tribe by the Government in
a writ petition was filed before the High Court challenging
that order which was allowed. That order is questioned in
this appeal. The questions arising in this case are covered
by the decision in State of Maharashtra vs. Milind & Ors.
2000 (7) Scale 628 and was got to be allowed, however,
the benefits derived till now shall be available to the
appellant to the effect that his appointment as Assistant
Engineer shall stand protected but no further. The appeal
is disposed of accordingly.
8. The situation is no different in case of the present
respondent. He also came to be appointed and/or promoted
way back in the year 1989 on the basis of his caste certificate
which declared him to be Scheduled Tribe. Ultimately it was
found that since a "Koshti" does not get the status of a
Scheduled Tribe, the Caste Scrutiny Committee invalidated the
said certificate holding that respondent was a Koshti and not a
Halba. I must hasten to add that there is no finding in the order
of caste scrutiny committee that the petitioner lacked in bona
fides in getting the certificate. I say that to overcome the
observations in para 21 in Sanjay Nimje's
case. "But it is not a
case where the respondent pleaded and proved bonafide."
9. Under such circumstances the High Court was fully
justified in relying on the observations made in Milind's
case.
The High Court has not referred to the judgment and order in
Civil Appeal No.3375 of 2000 decided on 12.12.2000 to which a
reference has been made above. However, it is clear that the
High Court was right in holding that the observations in Milind's
case apply to the case of the present respondent and he stands
protected thereby."
It is vehemently contended on the basis of above referred judgments
that the judgment in the case of State v/s Milind has only prospective
operation and all appointments and admissions which had attained
finality prior to the date of delivery of the judgment in the said case
stand protected.
9. Now, let us examine the judgments which take the contrary
view. In the case of Bank of India v/s Avinash Mandvikar, 2005
(4) Mh.L.J. SC 409. An appeal was carried to the Supreme Court by
Bank of India aggrieved by the judgment of the High Court granting
protection to the respondent-employee on equitable considerations
and by placing reliance upon the decision in the case of State v/s
Milind. The employee had joined the bank in the year 1976 in a post
that was reserved by scheduled tribe candidate. The caste certificate
of the employee was referred to the scrutiny committee for
verification and the scrutiny committee had rejected the caste claim of
the employee. Thereafter various proceedings were taken up
including writ petitions in the High Court at the behest of the
employee and the matter was remanded twice to the Caste Scrutiny
Committee. Ultimately the Committee invalidated the claim of the
employee. Acting on the said decision of the Caste Scrutiny
Committee charges of misconduct were framed against the employee
and a departmental inquiry was conducted which culminated in his
dismissal from service which order was challenged before the High
Court successfully. Reversing the judgment of the High Court the
Supreme Court has in no uncertain terms held that the employee had
obtained the appointment in the service on the basis that he belonged
to scheduled tribe and when the Scrutiny Committee has recorded
clear finding that he did not belong to scheduled tribe, the very
foundation of his appointment collapses and his appointment is no
appointment in the eye of law. The relevant observations find place
in para 6 of the judgment which read as under:
"6.
Respondent No.1-employee obtained appointment in
the service on the basis that he belonged to Scheduled Tribe.
When the clear finding of the Scrutiny Committee is that he did
not belong to Scheduled Tribe, the very foundation of his
appointment collapses and his appointment is no appointment in
the eyes of law. There is absolutely no justification for his claim
in respect of post he usurped, as the same was meant for
reserved candidate."
In the said case the employee had put in nearly three decades of
service and had only left about three years for his retirement. Despite
the same the Supreme Court has allowed the appeal by holding that a
person who has obtained an appointment by illegitimate means
cannot be permitted to enjoy the same as he has no iota of right even
to be considered for the appointment. The Supreme Court has
distinguished the judgment in State v/s Milind in recording the
above referred findings.
10. The next judgment is in the case of Additional General
Manager, Human Resource, BHEL Ltd.
v/s Suresh Ramkrishna
Burde., 2007 (4) Mh.L.J. 1. The said judgment is also in the same set
of facts wherein the employee was appointed on the basis of false
caste certificate and the question was as to whether could such an
employee be permitted to retain the benefit of wrong committed by
him. Answering in the negative the Supreme Court held that such an
employee is liable to be terminated from service. In this case as well
the employee had claimed to be belonging to Halba scheduled tribe
and had got the appointment on submission of a caste certificate to
that effect. The caste certificate was referred to the Caste Scrutiny
Committee and the Caste Scrutiny Committee invalidated that
certificate submitted by the employee. While allowing the petition of
the employee the High Court had held that the judgment of the
Supreme Court in State v/s Milind is not the judgment pertaining to
that case but is a settled law. While dealing with the said judgment
in State v/s Milind the Supreme Court in para 7 observed thus:
"7. The High Court has granted relief to the respondent
and has directed his reinstatement only on the basis of
Constitution Bench decision of this Court in State of
Maharashtra vs. Milind and others, 2001 (1) Mh.L.J. (SC) 1 =
(2001) 1 SCC 4 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.
In the concluding part of para 7 the Supreme Court observed:
"The law declared by the Constitution Bench does not at all
lay down that where a person secures an appointment by
producing a false caste certificate, his services can be protected
on his giving an undertaking that in future he will not take any
advantage of being a member of the reserved category."
The Supreme Court has further observed in para 8 that:
"8. After interpreting the relevant constitutional or
statutory provisions and laying down the law, it is always open
to a Court to mould the relief which may appear to be just and
proper in the facts and circumstances of the case."
Thus the observation made in para 36 of judgment in the case of
State v/s Milind have been read and explained in this judgment as
moulding of relief in view of the facts of the said case obviously in
exercise of discretion under Article 142 of the Constitution of India.
11. The next judgment is in the case of Union of India v/s
Dattatraya Namdeo Mendhekar & Ors., 2008 (2) Mh.L.J. 720. This
three Judges judgment goes to explain the decision of the Constitution
Bench in the case of State v/s Milind and concludes that the said
judgment has no application to the cases relating to securing
employment by wrongly seeking benefit of reservation meant for
scheduled tribe. It also held that in such cases the proper course to be
followed is to cancel the appointment obtained on the basis of false
certificate so that same can be filled in by a candidate entitled to the
benefit of reservation. After narrating the circumstances in which
the Constitution Bench of the Supreme Court protected the degree
obtained by the candidate it is explained thus:
"In these peculiar circumstances, this Court held that
the decision will not affected 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."
The judgments in the case of Bank of India v/s Avinash Mandvikar
and Additional General Manager, Human Resource, BHEL Ltd. v/s
Suresh Ramkrishna Burde (supra) have been quoted with approval
and relied upon. The last judgment on which reliance is placed by the
learned counsel for the respondent is in the case of Yogesh
Ramchandra Naikwadi v/s State of Maharashtra & Ors. 2008(3)
All MR 835. This judgment of the Supreme Court directly considers
the question raised in the present writ petitions in as much as the
Supreme Court has categorically held that the observations in para 38
(SCC) (Para 36 in Mah. L.J.) in the case of State v/s Milind are in the
nature of moulding the relief in exercise of its powers under Article
142 of the Constitution of India. The said observations in State v/s
Milind have been held not to be the ratio decidendi but issuance of
direction after considering the equities by having recourse to the
jurisdiction under Article 142 of the Constitution of India. The
Supreme Court after referring to the judgment in the case of State v/s
Milind has observed thus:
"5. In Milind, the question was whether the first
respondent who belonged to `Koshti'
caste could claim the
benefit of ST reservation on the ground that it was a sub-tribe of
`Halba'
(Entry No.19 in Part IX of the Constitution (Scheduled
Tribes) Order, 195). This Court held that `Koshti'
was not a
part of the Scheduled Tribe of Halba and that the entires in the
Scheduled Tribes Order could not be amended or expanded by
any Authority. As a consequence, the State's
appeal was
allowed and the claim of first respondent therein that he
belonged to a scheduled tribe was rejected. Having allowed the
State's
appeal, this Court moulded the relief in exercise of its
power under Article 142 by permitting the first respondent
therein to retain the benefit of his degree (for the reasons
extracted above). Vishwanatha Pillai merely followed Milind.
In Milind, there was a bona fide doubt as to whether `Halba-
Koshti'
could be considered as `Halba'.
In Vishwanatha Pillai,
the candidate's
caste certificate was cancelled merely as a
consequence of cancellation of his father'
s caste certificate.
Thus in Milind and Vishwanatha Pillai, the candidates
apparently believed that they belonged to a scheduled
tribe/caste when they sought admission and were admitted.
Further, their caste certificates showing them as belonging to a
scheduled tribe/caste had not been invalidated when they were
admitted to the course. The direction in both cases permitting
retention of degree was in exercise of power under Article 142
of the Constitution.
6. There may however be cases where it will not be
proper to permit the student to retain the degree obtained by
making a false claim. One example is where the candidates
secure seats by producing forged or fake caste certificates.
There may be cases, where knowing full well that they do not
belong to a scheduled tribe/caste candidates may make a false
claim that they belong to a scheduled tribe/caste. There may
also be cases where even before the date of admission, the caste
certificates of the candidates might have been invalidated on
verification of the Scrutiny Committee. There may be cases
where the admissions may be in pursuance of interim orders
granted by courts subject to final decision making it clear that
the candidate will not be entitled to claim, any equities by
reason of the admission. The benefit extended in Milind and
Vishwanatha Pillai cannot obviously be extended uniformly to
all such cases. Each case may have to be considered on its own
merits. Further what has precedential value is the ratio
decidendi
of the decision and not the direction issued while
moulding the relief in exercise of power under Article 142 on
the special facts and circumstances of a case. We are therefore
of the view that Milind and Vishwanatha Pillai cannot be
considered as laying down a proposition that in every case
where a candidate'
s case claim is rejected by a caste verification
committee, the candidate should invariably be permitted to
retain the benefit of the admission and the consequential degree,
irrespective of the facts.
(emphasis supplied)
12. After careful consideration of the judgments referred to herein
above it is noticed that three of the judgments need elaborate
consideration as they clearly deal with the question raised in these
writ petitions. The first judgment is in the case of Punjab National
Bank & Anr. V/s Vilas s/o Govindrao Bokade & Anr. In the said case
the respondent was a bank employee appointed in the year 1989 in a
reserved post for scheduled tribe. The respondent was claiming to be
belonging to `Halba'
scheduled tribe. On invalidation of his caste
certificate by the Caste Scrutiny Committee he was terminated from
service. Aggrieved by the termination the order of the Caste Scrutiny
Committee was challenged by filing writ petition in the High Court
and two fold submissions were made (i)that he was protected by the
Government Resolution dated 15.6.95 and (ii)that his appointment
was protected by the decision of the Constitution Bench of the
Supreme Court in State v/s Milind. The Bench comprised of two
learned Judges who delivered separate judgments. Justice H.K.Sema
has held that the appointment of the bank employee is protected by
Government Resolution dated 15.6.1995. However said judgment
does not deal with the binding nature of the observations made in the
case of State vs. Milind. The other learned Judge Shri V.S.Sirpurkar
has refrained from deciding the said question as to whether the bank
employee stands protected under the Government Resolution dated
15.6.1995 but has concluded that the concerned employee'
s
appointment stands protected in view of the observations made in the
case of State vs Milind. The learned Judge in his separate judgment
observed thus:
"Therefore it was tried to be suggested before us that the
observations were applicable to that particular case and the facts
therein. Ordinarily we would have been persuaded to accept the
arguments. However ....... ....... ......."
In the concluding part of para 9 the learned Judge held that the High
Court was right in holding that the observations in Milind's
case
applied to the case of present respondent and he stands protected
thereby. It is thus clear that one of the learned Judge in Punjab
National Bank's
case has by necessary implication held that the
observations made by the Supreme Court in para 36 in the case of
State vs Milind is a declaration of law within the meaning of 141 of
the Constitution of India and thus binding. The next judgment is in
the case of Union of India vs Dattatraya Namdeo Mendhekar & Ors.
The said judgment is delivered by the Division Bench of three Judges
of the Supreme Court which goes to explain the decision of the
Constitution Bench in the case of State vs Milind and it is categorically
stated therein that the judgment in State vs Milind has no application
to the cases relating to securing employment by wrongfully seeking
benefit of reservation meant for scheduled tribe. It is further held
that the proper course to be followed in such cases is to cancel the
appointment obtained on the basis of false caste certificate. It is held
in this judgment that having allowed the State's
appeal (in State vs.
Milind) the Court moulded the relief in exercise of powers under
Article 142 by permitting the first respondent to retain the benefit of
the degree. Had the observations/directions contained in para 36 in
State vs Milind been a declaration of law by the Constitution Bench of
the Supreme Court three Judges Bench would not have diluted the
ratio laid down in State vs. Milind, as it is observed in the case of
State vs. Milind that the admissions and appointments that have
become final shall remain unaffected by the said judgment. The very
fact that those observations have been explained so as to mean that
they would only apply to the cases of admissions and not the
appointments it is implicitly made crystal clear that the
observations/directions in State vs. Milind as having been issued in
exercise of discretionary power and jurisdiction under Article 142 of
the Constitution of India. The last judgment is in the case of Yogesh
Ramchandra Naikwadi v/s State of Maharashtra & Ors. This judgment
is the only judgment which directly deals with the question raised in
the present writ petition. In this case the Supreme Court has in no
uncertain terms held that the directions issued in the case of State vs
Milind and in the case of R.Vishwanatha Pillai vs State of Kerala &
Ors. have been so issued in exercise of powers under article 142 of
the Constitution of India. It is also held that the said
observations/directions do not constitute ratio decidendi but are the
directions issued while moulding the relief in exercise of power under
Article 142 on the special facts and circumstances of the case. This
judgment in Yogesh Ramchandra Naikwadi's
case puts the controversy
beyond any peril of doubt and concludes the question raised.
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 V/s Milind
reported in 2001(1) Mah. L.J. SC 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.
14. In the result we hold that the judgment of the Division Bench in
the case of Union of India vs. Deepak Y. Gotefode, 2008 (1) Mh.L.J.
790 lays down correct position of law and we further hold, with due
respect to the learned Judges that the judgment in the case of
Prashant Haribhau Khawas v/s State of Maharashtra & Ors. 2008(2)
Mh.L.J. 322 does not lay down the correct law. The reference is
answered accordingly. The writ petitions be placed before the
respective Division Benches for hearing and final disposal in the light
of this reference Judgment.
S.B.MHASE, J.
A.P. DESHPANDE, J.
P.B. VARALE, J.
