Bombay High Court
Prabhakar vs Joint Commissioner & ... on 9 October, 2012
Bench: B.R. Gavai, S.P. Deshmukh
wp900-12.odt 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.900/2012
with
WRIT PETITION NO.2528/2012
with
WRIT PETITION NO.5094/2011
WRIT PETITION NO.900/2012
Prabhakar s/o Rushi Nandanwar,
aged about 36 yrs. Occu: Service,
R/o at +Post+Tahsil Armori (Bardi),
District Gadchiroli. .. PETITIONER
.....VERSUS.....
1. Joint Commissioner & Vice-chairman
Scheduled Tribe Certificate,
Caste Scrutiny Committee,
Gadchiroli.
2. The Deputy Director,
Vocational Education and Training,
Regional Office, Civil Lines,
Nagpur.
3. The Principal,
Indian Training Institute,
Itapalli, Dist. Gadchiroli. . RESPONDENTS
Shri S.R. Narnaware, Advocate for Petitioner.
Shri N.W. Sambre, Advocate for Respondent no.1.
::: Downloaded on - 09/06/2013 19:15:46 :::
wp900-12.odt 2 Judgment
WRIT PETITION NO.2528/2012
Ku. Nila Wasudeo Dhakate,
(Sau. Neha Kishor Nandanwar)
Aged about 39 years, Occu. Service,
R/o C/o Shri Kishor Nandanwar,
Tandapeth, New Vasti, Near Shende
Bichhayat, Nagpur. .. PETITIONER
.....VERSUS.....
1. Joint Commissioner & Vice-chairman
Scheduled Tribe Caste Scrutiny
Committee, Gadchiroli Division,
Gadchiroli.
2. Head- Mistress,
Pragati Kanya Vidyalaya,
Adarsh Nagar, Wadi, Tah.
And Dist. Nagpur. .. RESPONDENTS
Shri S.R. Narnaware, Advocate for Petitioner.
Shri N.W. Sambre, Advocate for Respondent no.1.
WRIT PETITION NO.5094/2011
Sou. Rajeshree w/o Sandeep Hedau,
(Ku. Rajeshree Tikaram Bhagat)
Aged about 43 yrs.
Occu. Service at Laboratory Technician,
R/o Krushna Residency, 76, Manish Nagar,
Nagpur. .. PETITIONER
.....VERSUS.....
1. State of Maharashtra through its
Secretary, Ministry of Tribal Welfare
Department, Mantralaya,
Mumbai - 400 032.
::: Downloaded on - 09/06/2013 19:15:47 :::
wp900-12.odt 3 Judgment
2. Scheduled Tribe Caste Certificate
Scrutiny Committee, Amravati,
through its Joint Commissioner.
3. Assistant Director,
Health Services (Malaria), Nagpur.
4. Joint Director, Health Services
(Malaria, Fileria and Water Diseases)
Pune -6. .. RESPONDENTS
Shri S.R. Narnaware, Advocate for Petitioner.
Shri N.W. Sambre, Government Pleader for Respondents 1,3 & 4.
Shri P.B. Patil, Advocate for Respondent no.2.
CORAM : B.R. GAVAI AND
SUNIL P.DESHMUKH, JJ.
DATE : 9
th
October , 2012.
ORAL JUDGMENT (Per B.R. GAVAI, J.)
1. RULE. Rule made returnable forthwith. Heard by consent of
the parties.
2. Since the factual and legal position in all the three petitions
are identical, we have heard all these matters together and are disposing
of the same by this common judgment and order.
3. Though all the petitioners who have entered into their
services on the basis of their claim of belonging to Scheduled Tribe.
have approached this Court being aggrieved by the orders of the Scrutiny
Committee, they have given up the challenge to the order of the Scrutiny
wp900-12.odt 4 Judgment
Committee and have restricted their claim in the petition only to
protection of their services.
4. The facts are not in dispute. All the petitioners claimed to be
belonging to Halba Scheduled Tribe. Their entry in the service is on the
basis of their belonging to the Scheduled Tribe. Their claims came to be
referred to the Caste Scrutiny Committee which have been invalidated.
The petitioners have now restricted their claim to protection of services
on the basis of the judgments of the Apex Court in the case of State of
Maharashtra .vs. Milind and others reported in 2001 (1) Mh.L.J. 1
and Kavita Solunke .vs. State of Maharashtra reported in 2012 (5)
Mh.L.J. 921.
5. In one of the matters i.e. Writ Petition No. 2799/2012 which
was clubbed along with the present petitions but for some reason has now
been directed to be heard separately, we had the privilege of able
assistance of Shri V.H. Kedar, the learned counsel , who was appearing on
behalf of the employer in the said case. Shri Kedar, the learned counsel
submits that in view of the judgment rendered at the Apex Court of a
Bench consisting of three Hon'ble Judges, the protection is not available
to the candidates whose claims have been invalidated, in respect of their
appointment. The learned counsel submits that the judgment of the
Constitution Bench in the case of Milind Katware (supra), has been
considered by the Bench of Hon'ble three Judges in the case of Union of
wp900-12.odt 5 Judgment
India .vs. Dattatraya reported in 2008 (2) Mh.L.J. 720 wherein it has
been specifically held that wherever the claim of the candidate belonging
to Scheduled Tribe is invalidated, the services are bound to be
terminated.
6. For appreciating the rival contentions, it will be appropriate
to first refer to the judgment of the Apex Court in the case of State of
Maharashtra .vs. Milind (supra). Relevant extract from paragraph 36 of
said judgment is reproduced hereinbelow:
"36.................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 and 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."
7. It can thus be clearly seen that the Apex Court has
categorically made it clear that having regard to the passage of time and
in the given circumstances including interim orders passed by it and other
related affairs, the admissions and appointments that have become final
shall remain unaffected by the said judgment.
wp900-12.odt 6 Judgment
8. It is to be noted that the Division Bench of this Court in the
case of Abhay Parate .vs. State of Maharashtra reported in 1984
Mh.L.J. 289 had held that the Halba Koshtis were included in the entry
Halba Tribe. The said judgment of the Division Bench of this Court was
carried to Supreme Court by filing S.L.P. The Apex Court though refused
to grant leave in the matter, held that the findings recorded in the said
case would be confined and applicable only to the petitioners before the
High Court. The Apex Court had, however, kept the larger question open
and granted liberty to raise the said issue to the State of Maharashtra
which had carried the matter to the Apex Court. It can thus be clearly
seen that a question as to whether Halba Koshti in the Vidarbha Region
in the State of Maharashtra were Scheduled Tribe or not, was under a
shadow of doubt for a considerable period of time. 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 (supra) 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
wp900-12.odt 7 Judgment
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
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 expressed 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.
9. Though Shri Kedar is right in relying on the judgment of the
Apex Court of a Bench consisting of three Hon'ble Judges in support of his
submission that the Hon'ble three Judges have taken a view that the
protection is not applicable to the appointments. However, we find that
the paragraph which we have reproduced hereinabove from the judgment
of a Bench consisting of three Hon'ble Judges which specifically deals
with the word "appointment" has not been reproduced by the Apex Court
in the said judgment. In any case between a judgment of the Constitution
Bench and the judgment of Hon'ble three Judges, it would be the
judgment of the Hon'ble Constitution Bench which would be binding and
required to be followed by this Court.
10. The Apex Court in the recent judgment in the case of Kavita
Solunke (supra) has considered all the judgments right from the
judgment of the Constitution Bench in the case of Milind Katware to the
wp900-12.odt 8 Judgment
judgment in the case of Union of India .vs. Dattatraya (supra). It was
specifically sought to be urged on behalf of the State Government in the
said matter that Milind Katware's judgment was only applicable to
admission to professional courses and not to the appointment to any
public office. It will be relevant to reproduce paragraphs nos.
11,12,13,14,15 and 16 of the said judgment which read thus :
"11. A careful reading of the above would show that
both the High Court as also this Court were conscious of
the developments that had taken place on the subject
whether 'Halba-Koshti' are 'Halbas' within the meaning
of the Presidential Order. The position emerging from
the said circulars, resolutions and orders issued by the
competent authority from time to time notwithstanding,
this Court on an abstract principle of law held that an
inquiry into the question whether 'Halba-Koshti' were
Halbas within the meaning of the Presidential order was
not legally permissible.
12. The appellant before us relies upon the above
passage extracted above to argue that her appointment
had attained finality long before the judgment of this
Court was delivered in Milind's case and even when she
was found to be a 'Koshti' and not a 'Halba' by the
Verification Committee, she was entitled to protection
against ouster.
13. We find merit in that contention. 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's
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
wp900-12.odt 9 Judgment
to the appellant also. The Constitution Bench had in
Milind's 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 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. After the pronouncement
of judgment in Milind's case, a batch of cases was
directed to be listed for hearing before a Division
Bench of this Court. The Division Bench eventually
decided those cases by an order dated 12th December
2000 (State of Maharashtra v. Om Raj (2007) 14 SCC
488) granting benefit of protection against ouster to
some of the respondents on the authority of the view
taken by this Court in Milind's case. One of these cases,
namely, Civil Appeal No.7375 of 2002 arising out of SLP
No.6524 of 1988 related to the appointment of a
'Koshti' as an Assistant Engineer against a vacancy
reserved for a 'Halba/Scheduled Tribe candidate. This
court extended the benefit of protection against ouster to
the said candidate also by a short order passed in the
following words:
"4. Leave granted.
5. The appellant having belonged to Koshti
caste claimed to be included in the
Scheduled Tribe of Halba and obtained
an appointment as Assistant Engineer. When
his appointment was sought to be terminated
on the basis that he did not belong to
Scheduled Tribe by the Government a writ
petition was filed before the High Court
challenging that order which was allowed.
That order is questioned in this appeal.
The questions arising in this case are
covered by the decision in State of
Maharashtra v. Milind1 and were got to be
wp900-12.odt 10 Judgment
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."
14. Reference may also be made to Punjab National
Bank v. Vilas (2008) 14 SCC 545. That too was a case of
appointment based on a certificate which was later
cancelled on the ground that 'Halba Koshti' was not the
same as 'Halba' Scheduled Tribe. The High Court had
set aside the termination of the service of the affected
candidates relying upon a Government resolution dated
15th June 1995 as applicable to Punjab National Bank.
While upholding the said order, H.K. Sema, J. held the
candidate to be protected against ouster on the basis of
the resolution. V.S. Sirpurkar, J., however, took a
slightly different view and held that the appointment
made by the Bank having become final the same was
protected against ouster in terms of the decision of the
Constitution Bench in Milind's case (supra). The
question whether the Government resolution protected the
candidates against ouster from service was for that
reason left open by His Lordship. Reliance in support
of that view was placed upon the decision of this Court
in Civil Appeal No. 7375 of 2000 (wrongly mentioned in
the report as Civil appeal No. 3375 of 2000) mentioned
above. The Court observed:
"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
wp900-12.odt 11 Judgment
Committee invalidated the said certificate
holding that the respondent was a Koshti
and not a Halba. I must hasten to add that
there is no finding in the order of the Caste
Scrutiny Committee that the petitioner
lacked in bona fides in getting the
certificate. I say this to overcome the
observations in para 21 in Sanjay K. Nimje
case. But it is not a case where the
respondent pleaded and proved bona fides.
Under such circumstances the High Court
was fully justified in relying on the
observations made in Milind 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 case apply to the
case of the present respondent and he
stands protected thereby".
15. Our attention was drawn by counsel for the
respondents to the decision of this Court in Addnl.
General Manager/Human Resource BHEL v.Suresh
Ramkrishna Burde (2007) 5 SCC 336 in which the
protection against ouster granted by the decision in
Milind's 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's case, the Scrutiny Committee had found that
the caste certificate was false and, therefore, invalid.
That was not the position either in Milind's case nor is
that the position in the case at hand. In Milind's case,
the Scrutiny Committee had never alleged any fraud or
any fabrication or any misrepresentation that could
wp900-12.odt 12 Judgment
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's case may, therefore,
have been justified in Burde's 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's
case (supra), therefore, is of no assistance to the
respondent. The decision of this Court in State of
Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481
relied upon by learned counsel for the respondents was
distinguished even by V.S. Sirpurkar, J. in Vilas's case.
The distinction is primarily in terms whether the
candidate seeking appointment or admission is found
guilty of a conduct that would disentitle him/her from
claiming any relief under the extraordinary powers of
the Court. This Court found that if a person secures
appointment or admission on the basis of false
certificate he cannot retain the said benefit obtained by
him/her. The Courts will refuse to exercise their
discretionary jurisdiction depending upon the facts and
circumstances of each case. The following passage
from decision in the Nimje's case is apposite:
"In a situation of this nature, whether the
Court will refuse to exercise its
discretionary jurisdiction under Article 136
of the Constitution of India or not would
depend upon the facts and circumstances
of each case. This aspect of the matter has
been considered recently by this Court
in Sandeep Subhash Parate v. State of
Maharashtra (2006) 7 SCC 501."
wp900-12.odt 13 Judgment
16. Applying the above to the case at hand we do not
see any reason to hold that the appellant 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 re-instated 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."
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. Insofar 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 (supra), the Apex
wp900-12.odt 14 Judgment
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.
13. However, at the same, we may add that what has been
protected by the Apex Court is only the appointments of the candidates
belonging to Halba Koshti which had become final. We are of the
considered view that the word "appointment" cannot be stretched to
include "promotion" also. Permitting an employment of a person who has
served for long period is on a different pedestal than permitting him
even to enjoy the promotional benefits on the basis of his claim of
belonging to Scheduled Tribe which is found to be invalidated. Not
protecting the employment/appointment of such a person would result in
great hardship at an advanced age as it would not be possible for such
persons to get another employment at this age. It would, therefore, be
not appropriate to drive such persons on road. Particularly so when on
account of a confusion that was prevailing as to whether the Halba
Koshtis are included Halba/Halbi or not, we find that the appointment of
such person deserves protection. However, such a consideration cannot
be made applicable to the promotions inasmuch as if the same is
accepted, it will be giving premium to a person whose claim has been
invalidated and at the same time, it would deprive a legitimate Scheduled
Tribe candidate of the promotion to which he is entitled to on the basis of
wp900-12.odt 15 Judgment
him belonging to Scheduled Tribe.
14. In that view of the matter, we find that the petitions deserve
to be allowed partly in terms of the following order:
15. In the result, the following order:
(i) The petitions insofar as challenge to the order
passed by the Scrutiny Committee stand dismissed.
(ii) The respondents/employers are directed not to
terminate the services of the petitioners on the ground
of invalidation of their tribe claim. However, it is made
clear that the protection that is granted to the
petitioners is only in respect of their initial appointment.
It is made clear that if any promotions are granted to
the petitioners on the basis of their claim of belonging
to Scheduled Tribe, the authorities would be at liberty
to withdraw the said benefits and revert the petitioners
to such of the posts to which they would be legitimately
entitled considering their entry into service from open
category.
(iii) The petitioners shall file an undertaking
within three weeks from today that hereinafter neither
the petitioners nor their progeny would be entitled to
claim any benefits on the basis of belonging to
Scheduled Tribe.
16. Rule in the aforesaid terms with no order as to costs.
JUDGE JUDGE
HALWAI
