Apurva Ashok Gokhale vs State Of Maharashtra And Others
2012 Latest Caselaw 172 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION
                            WRIT PETITION NO.8129 OF 2012




                                                                                   
    Apurva Ashok Gokhale                                            ..Petitioner.
           versus




                                                           
    State of Maharashtra and others                                 ..Respondents.
                                         .....
    Mr. R.K. Mendadkar with Mr. C.K. Bhangoji and Ms. Helen Koli-Mandlik for the
    Petitioner.
    Mr. C.R. Sonawane, AGP for the Respondents.




                                                          
                                        ......

                                    CORAM : DR.D.Y.CHANDRACHUD, and
                                            A.A.SAYED, JJ.

11 October 2012.

ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :

The Petitioner has sought to challenge an order of the Divisional Caste Certificate Scrutiny Committee dated 10 July 2012 by which the caste certificate

issued to the Petitioner has been invalidated. The Petitioner was initially granted a caste certificate in a format prescribed for migrants which was referred to a Divisional Caste Certificate Scrutiny Committee for verification. The Scrutiny

Committee returned the caste certificate by a communication dated 14

September 2007. In a petition filed before this Court 1 liberty was granted to the Petitioner to approach the Executive Magistrate afresh for the grant of a caste certificate. The Petitioner thereupon approached the Additional District Deputy

Collector, Andheri on 17 July 2008 and the competent authority granted a caste certificate in the prescribed form to the Petitioner on 27 October 2008. The caste certificate was forwarded to the Divisional Caste Certificate Scrutiny Committee for verification. The Police Inspector attached to the vigilance cell

submitted an enquiry report stating that the Petitioner and her family had migrated to the State of Maharashtra in 1972. An order was passed by the Scrutiny Committee on 19 May 2011 invalidating the caste certificate. The order of the Scrutiny Committee was challenged in writ proceedings before this Court. By an order dated 4 January 2012 the Division Bench noted the grievance of the Petitioner that the order of the Scrutiny Committee had not taken note of a circular dated 10 July 2008 issued by the State Government in relation to the

1 Writ Petition 2166 of 2008.

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residents of 865 villages near the Maharashtra Karnataka boarder. It was the contention of the Petitioner that persons who hail from those 865 villages cannot

be regarded as migrants into the State of Maharashtra. Since the government circular dated 10 July 2008 was not considered by the Scrutiny Committee, the

Division Bench set aside the order of the Committee without any expression of opinion on merits and remanded the proceedings back to the Committee for fresh consideration. Upon remand, the Scrutiny Committee has passed its

impugned order dated 10 July 2012 invalidating the claim of the Petitioner. The Committee has noted that the father of the Petitioner had migrated to the State of Maharashtra from the State of Karnataka in 1972 together with his family as found in the report of the vigilance cell. This was also admitted in the statement

of the Petitioner's father. The Scrutiny Committee observed that insofar as

scheduled castes are concerned, the presidential order dated 10 August 1950 is of relevance and the government circular dated 10 July 2008 had no relevance to the issue of reservations.

2. The view which has been taken by the Scrutiny Committee is consistent with the principles of law enunciated in the judgment of the Constitution bench of

the Supreme Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical

College2. The judgment of the Constitution Bench expressly lays down that while there is no inhibition on a member of a Scheduled Caste or Tribe migrating from one State to another, as a migrant he would not carry the rights and

privileges conferred upon the caste in the original State or a specified area. The Supreme Court observed as follows :

"But when a Scheduled Caste or Tribe migrates, there is no inhibition in migrating but when he migrates, he does not and cannot carry any special rights and privileges attributed to him or granted to him in the original

State specified for that State or area or part thereof. ..... The expression "in relation to that State" would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. ....... Treating the determination under Article 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution.

.........

2 (1990) 3 SCC 130.

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The construction that reservation made in respect of the Scheduled Caste or Tribe of that State is so determined to be entitled to all the privileges and rights under the Constitution in that State would be the most correct

way of reading, consistent with the language, purpose and scheme of the Constitution."3

3. In a subsequent judgment of a Constitution Bench of the Supreme Court in Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India 4, while

reiterating the same principle it was held as follows :

"We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes / Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste,

tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be

that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be

totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and

benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution"."

4. The same principle has been enunciated in a judgment of a Division Bench of this Court in Shweta Santalal Lal v. State of Maharashtra 5. Before the Court during the course of the hearing it has not been disputed that the

Petitioner's father was a migrant into the State in 1972. The circular dated 10 July 2008 has no relevance and in any case cannot deviate from the constitutional position.

5. In this view of the matter, the view which has been taken by the Caste Scrutiny Committee does not suffer from any error.

6. However, it was sought to be submitted that the Petitioner has now completed her studies for the Bachlelor of Physiotherapy course and that

3 paragraphs 13 and 14, pages 143 and 144.

4 (1994) 5 SCC 244.

5 2010(2) Bom.C.R. 497.

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conditional on the Petitioner tendering an undertaking not to claim the benefit of reservation hereafter in future, her degree may be protected under the order of

the Court. This submission cannot be accepted in view of an express provision of law enacted by the State legislature in 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 Certificate Act, 2000. Sub section (1) of Section 10 and

sub section (3) provide as follows :

"(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 or Special Backward Category secures admission in any educational institution against a seat reserved for such

Castes, Tribes or Classes, or secures any appointment in the Government, local authority or in any other Company or Corporation,

owned or controlled by the Government or in any Government aided institution or 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 of such admission or appointment by such person as aforesaid shall be withdrawn forthwith.

.......

(3) Notwithstanding anything contained in 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 Security Committee."

7. These provisions were interpreted by a Division Bench of this Court in Priyanka Omprakash Panwar v. State of Maharashtra 6 where the Division

Bench held as follows :

"The Legislature has stepped in and enunciated as a matter of high public policy, a statutory provision for the invalidation of all benefits which have been obtained on the basis of a false caste claim to belong to a reserved category. Where a person has been employed on the basis of a false caste claim, the Legislature has provided for discharge from employment.

Where a person has been admitted to an educational institution on the basis of a false claim, the Legislature has provided for invalidation of the admission. The Legislature has in sub-section (3) of Section 10 gone

6 2008(2) Bom.C.R. 100.

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further by enacting that the degree, diploma or any other educational qualification "shall also stand cancelled" on the cancellation of the Caste Certificate. An electoral disqualification has been enacted in sub-section

(4). These stringent provisions have been enacted by the Legislature in public interest in order to ensure that the benefits which are created for the Scheduled Castes, Scheduled Tribes and other reserved categories

are truly made available only to those persons who belong to the communities and tribes for whom the reservation exists. There is a tendency for imposters to claim the benefit of reservation by feigning to belong to a reserved community. Once admitted to an educational institution, every effort is made to continue in the educational institution

often by recourse to dilatory tactics and over a period of time, a plea is made for the protection of the admission since by the passage of time, the student may have pursued the course of studies even to the conclusion. The Court has often times stepped in to protect admission on equitable considerations particularly having regard to the fact that the student may

have substantially completed the course of studies or may have secured a degree on the basis of admission. The balance between the equitable

consideration of protecting the interest of a student who has pursued his education and the public interest in protecting the reserved categories against the usurpation of their constitutional entitlements by imposters has now been made by the State Legislature. The Court in the exercise of the

power of judicial review has due deference to legislative policy. The Court does not prescribe legislative policy nor does it enact law. The Court must assume that the legislature is cognisant of the needs and welfare of society. The legislature was also cognisant of the outlays publicly made

on education and the investment made by the State in equipping students to become doctors, engineers and other professionals. The Legislature has expressly stipulated that a degree or diploma obtained on the basis of

a caste claim which is invalidated shall stand cancelled. In the face of an express legislative provision, this Court shall not be justified in exercising its equitable jurisdiction. Considerations of equity that guide the Court in constitutional adjudication under Article 226 of the Constitution must be in

accordance with the law enacted by the Legislature. So long as the law continues to be valid, the High Court would not be justified in issuing directions which run contrary to the plain intendment of the Legislature. It is the constitutional duty and obligation of this Court to give a purposive meaning and interpretation to the provisions of the enactment made by the State Legislature in 2000. Stringent provisions have been made to

protect the Scheduled Castes, Scheduled Tribes and other reserved categories. To dilute those provisions by importing equitable considerations for a candidate who has usurped benefits would be to defeat the law. The legislation was in this case conceived in the interests of protecting the constitutional scheme of reservations from usurpation by those who are not entitled. It is the plain duty of the constitutional Court to enforce the law. The doctrine of the separation of powers in a democracy demands no less."

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8. The Court observed that though the Supreme Court had in certain cases issued directions so as to protect the admissions granted to a candidate despite

the invalidation of the caste certificate having regard to the equities of the case, this was in exercise of the power under Article 142 of the Constitution. The

Division Bench judgment of this Court in Panwar's case has been subsequently followed by another Division Bench in Jagdevi Gurunath Khedgikar v. The Scheduled Tribe Certificate Security Committee 7. In view of the specific

statutory provisions which have been enacted by the State legislature, in Sections 10(1) and 10(3), the alternate submission which has been urged cannot be accepted. Sub section (1) of Section 10 inter alia provides that whoever not being a person belonging to a Scheduled Caste secures admission in an

educational institution against a seat reserved for the Scheduled Castes, by

producing a false caste certificate, shall on the cancellation of the certificate by the Scrutiny Committee be liable to be debarred from the institution and any other benefits enjoyed or derived by virtue of such admission shall be withdrawn

forthwith. Sub section (3) of Section 10 also provides that notwithstanding anything contained in any Act for the time being in force, any degree, diploma or any other educational qualification acquired by such person after securing

admission in an educational institution on the basis of a caste certificate which is

subsequently proved to be false shall also stand cancelled, on the cancellation of such a caste certificate by the Scrutiny Committee. The legislature has in its wisdom balanced two competing equities. The first equity is the equity of an

individual student who has undergone a period of study albeit on the basis of a false caste certificate. The second equity which has been regarded as one of overriding or paramount importance in the legislation is the need to protect the Scheduled Castes and Scheduled Tribes and other categories for whom

reservations are intended from the usurpation of benefits by imposters who claim a reserved seat in an educational institution on the basis of a false caste claim. The legislature has as a matter of principle specifically laid down in the form of sub sections (1) and (3) of Section 10 that despite the conferment of a degree or diploma, upon a subsequent invalidation of a caste claim based on a false caste certificate, the benefit which has accrued to the student shall stand withdrawn. For these reasons, we do not find that there is any merit in the

7 Writ Petition 5624 of 2011 decided on 5 March 2012.

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Petition. The Petition shall accordingly stand dismissed.

(Dr. D.Y. Chandrachud, J.)

(A.A.Sayed, J.)