Bombay High Court
Pradip Gajanan Koli vs State Of Maharashtra & Ors on 22 November, 2013
Bench: A.S. Oka, G.S. Patel
ash 1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.8014 of 2012
WRIT PETITION NO. 6323 OF 2013
WRIT PETITION NO.5196 OF 2013
WRIT PETITION NO.11518 OF 2012
WRIT PETITION NO.11740 OF 2012
WRIT PETITION NO.5098 OF 2013
WP NO. 8014 OF 2012
Pradip Gajanan Koli .. Petitioner
Vs.
State of Maharashtra & Ors. .. Respondents
--
ALONG WITH
WP NO.6323 OF 2013
Sunita D/o Premdeo Kumbhare @
Smt.Sunita W/o Satish Pajankar .. Petitioner
Vs.
Commissioner of Central Excise
& Custom, Pune -1 & Another. .. Respondents
ALONG WITH
WP NO.5196 OF 2013
Yashpal Dhanraj Lohi .. Petitioner
Vs.
State of Maharashtra & Ors. .. Respondents
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wp-8014.12,6323,5196,11518,11740n5098.13
ALONG WITH
WP NO.11518 OF 2012
Nitin Raghunath Khairnar .. Petitioner
Vs.
State of Maharashtra & Ors. .. Respondents
-
ALONG WITH
WP NO.11740 OF 2012
Vs.
Rupchand Devchand Khairnar .. Petitioner
State of Maharashtra & Ors. .. Respondents
--
ALONG WITH
WP NO.5098 OF 2013
Sudhir Dattatraya Telang .. Petitioner
Vs.
State of Maharashtra & Ors. .. Respondents
--
Shri R.K.Mendadkar i/by Mr. Chandrakant K. Bhangoji for the Petitioner
in W.P. Nos.8014 of 2012 and 5196 of 2013.
Shri Mahesh Deshmukh for the Petitioner in W.P.6323 of 2013.
Shri Narendra Bandiwadekar for the Petitioner in W.P. Nos.11518 of
2012 and 11740 of 2012.
Shri A.M.Joshi and Mr.V.K.Bodhare for the Petitioner in W.P. No.5098 of
2013.
Shri S.K.Shinde, Government Pleader a/w Shri A.B.Vagyani, Additional
Government Pleader for the Respondent-State.
Shri Mandar Limaye for Respondent No.3 in W.P. No.8014 of 2012.
Shri Girish Kulkarni i/by Shri K.R.Chaudhari for respondent No.1 in
W.P. No.6323 of 2013.
--
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CORAM : A.S. OKA & G.S. PATEL, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 22ND AUGUST 2013
DATE ON WHICH JUDGMENT IS PRONOUNCED:
22ND NOVEMBER 2013
JUDGMENT ( PER A.S. OKA, J)
1. The following question arises for consideration in these
Petitions:
Whether the employment of a person appointed
against a post reserved for Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes and Special
Backward Category category (for short "reserved
category") on the basis of a caste certificate can be
protected after his/her caste certificate is invalidated
by the Competent Caste Scrutiny Committee duly
constituted under the the Maharashtra Scheduled
Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation
of Issuance and Verification of ) Caste Certificates
Act, 2000 ( for short "the said Act") ?
wp-8014.12,6323,5196,11518,11740n5098.13
FACTS OF THE INDIVIDUAL CASES
2. Before we advert to the legal submissions made across the
bar, it will be necessary to make a reference to the factual controversy
in each Petition. The Petitioner in Writ Petition No.8014 of 2012 was
appointed on a post of fireman reserved for Schedule Tribes on the
establishment of the third Respondent Municipal Corporation. He was
appointed on 13th March 1996. He obtained a caste certificate from the
Competent Authority on 22nd June 2000. By the order dated 7 th July
2012, the caste certificate of the Petitioner was invalidated by the
Scheduled Tribe Scrutiny Committee. The Petitioner has given up his
claim that he belongs to Koli Mahadeo, a Scheduled Tribe, but he is
claiming protection of his employment.
3. In Writ Petition No.5098 of 2013, the Petitioner was
employed as a talathi on 12th April 1990 on a post reserved for
Scheduled Tribe. By an order dated 15th February 2013, the caste claim
of the Petitioner that he belongs to Koli Mahadeo, a Scheduled Tribe
was negatived. The Petitioner has given up his caste claim that he
belongs to Koli Mahadeo, a Scheduled Tribe and he is seeking
protection of his employment.
wp-8014.12,6323,5196,11518,11740n5098.13
4. In Writ Petition No.6323 of 2013, the substantive prayer is
for challenging the judgment and order dated 1 st July 2013 passed by
the Caste Scrutiny Committee by which the caste claim of the Petitioner
that she belongs to Halba, a Scheduled Tribes has been negatived and
the caste certificate has been cancelled. The Petitioner is in the
employment of Central Excise Department since 4 th January 1996 and
was confirmed on 25th November 1999. The prayer made in the
alternative is for protecting the employment of the Petitioner on the
basis of the decision of this Court in the case of A.P. Ramtekkar and
others v. Union of India and others1. Though the claim of the Petitioner
that he belongs to Halba, a Scheduled Tribe, is not given up, the learned
counsel appearing for the Petitioner has argued in support of the prayer
made in the alternative for protection of his employment.
5. In Writ Petition No.11518 of 2012, the challenge is to the
order dated 16th October 2012 passed by the Caste Scrutiny Committee
by which the caste claim of the Petitioner that he belongs to Koli
Mahadeo, a Scheduled Tribe has been negatived. In this case, the
Petitioner is in the employment of the City and Industrial Development
Corporation of Maharashtra Limited (CIDCO) with effect from 25 th June
1997. The Petitioner has not specifically given up his caste claim.
1 [2013(2) Mh.L.J. 419]
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However, the learned counsel appearing for the Petitioner has made
submissions for protecting the employment of the Petitioner even
assuming that the caste claim of the Petitioner is not upheld.
6. In Writ Petition No.11740 of 2012, the challenge is to the
order dated 2nd November 2012 passed by the Caste Scrutiny
Committee by which the caste claim of the Petitioner that he belongs to
Koli Mahadeo, a Scheduled Tribe has been negatived. In this case, the
Petitioner is in the employment of the City and Industrial Development
Corporation of Maharashtra Limited (CIDCO) with effect from 30 th
December 1999. The Petitioner has not specifically denied the caste
claim. However, the learned counsel appearing for the Petitioner has
made submissions for protecting the employment of the Petitioner even
assuming that the caste claim of the Petitioner is not upheld.
7. In Writ Petition No.5196 of 2013, the challenge is to the
order dated 12th April 2013 passed by the Caste Scrutiny Committee by
which the caste claim of the Petitioner that he belongs to Dhangad, a
Scheduled Tribe has been negatived. The Petitioner is in the
employment of the establishment of the office of the Government
Pleader of this Court, Original Side, with effect from 29 th June 1998.
We must note here that the Petitioner has filed an undertaking in this
wp-8014.12,6323,5196,11518,11740n5098.13
Petition that he would not claim any future benefits of reservation and,
therefore, his service may be protected. He has also given an
undertaking that neither himself nor his progeny or any of his family
members shall claim any reservation benefits by claiming that they
belong to Dhangad, a Scheduled Tribe.
THE SUBMISSIONS OF THE PARTIES
8. The learned Counsel representing the petitioners have
made extensive submissions. Some of the submissions are common. We
are summarizing the submissions. The learned counsel appearing for
the Petitioners relied upon Government Resolution dated 15 th June
1995. Based on the said Government Resolution, it is contended that
the persons who were employed prior to 15 th June 1995 on a post
reserved for a Scheduled Tribe should not be removed from the
employment on the ground that they do not belong to the caste Koli
Mahadeo, but are Kolis. The Government Resolution directs that the
employment of such persons who fall in the category of Special
Backward Class shall be protected. Reliance is placed on a decision of
a Division Bench of this Court in the case of Kumari Bhamini Sadashiv
Thanekar v. State of Maharashtra & Others2 which holds that there is
nothing in the provisions of the said Act which provides that the
2 Writ Petition No.194 of 2003 decided on 14th August 2003
wp-8014.12,6323,5196,11518,11740n5098.13
protection granted under the Government Resolution dated 15 th June
1995 has been withdrawn. Reliance has been placed on the decision
of this Court in the case of A.P. Ramtekkar. Reliance is placed by the
Petitioners on the decision of the Apex Court in the case of Kavita
Solunke v. State of Maharashtra and others 3 wherein the Apex Court
granted protection to the employment of a teacher who was claiming to
be Halba, a Scheduled Tribe, and who was appointed in a post reserved
for Scheduled Tribe though the Caste Scrutiny Committee found that
she belongs to the caste Koshti which is not a Scheduled Tribe. The
Apex Court observed that as there was no allegation against the
Petitioner that she fabricated or manipulated the caste claim with a
view to obtain undeserved benefits, her service was entitled to be
protected. The Petitioners have also placed reliance on a decision of
the Division Bench of this Court at Nagpur in the case of Prabhakar
Rushi Nandanwar v. Joint Commissioner & Vice-Chairman of the
Scheduled Tribe Certificate, Caste Scrutiny Committee 4. In this case, the
Petitioners claim that they were belonging to Halba, a Scheduled Tribe,
but their caste claims were invalidated. The Petitioners relied upon a
decision of the Apex Court in the case of Dattu Namdev Thakur v. State
of Maharashtra and others5 by which the employment of the Petitioner
3 (2012) 8 SCC 430
4 Writ Petition No.900 of 2012 and other connected matters decided on 9th October 2012
5 [(2012)1 SCC 549]
wp-8014.12,6323,5196,11518,11740n5098.13
therein was protected. This was a case where the Caste Scrutiny
Committee had invalidated the cast certificate of the Petitioner that he
belong to Thakur, a Scheduled Tribe. The Petitioners have also relied
upon another decision of Division Bench dated 5 th 8th 9th and 10th July
2013 of this Court at Nagpur in the case of Kumari Vijaya Deorao
Nandanwar v. Chief Officer, Municipal Council, Wardha 6 and other
connected matters. The Division Bench protected the employment of
the Petitioners whose caste claims were invalidated though their
appointments were on reserved posts.
9. The submission of the learned counsel appearing for the
Petitioners is that those who were in the employment prior to the
coming into force of the said Act cannot be visited with the drastic
consequences provided under the said Act and in particular Section 10
thereof. The submission is that the said provision cannot apply
retrospectively. It was urged that those who were employed on a
reserved post whose caste claim has been invalidated after a long lapse
of time deserve to be protected subject to all the usual conditions such
as filing of an undertaking not to claim benefit of caste claim in future
and that their progeny will not claim any benefit of caste claim. Their
contention is that right from the decision of the Apex Court in the case
wp-8014.12,6323,5196,11518,11740n5098.13
of State of Maharashtra and others v. Sanjay K. Nimje 7, the employment
and/or the admissions granted to education institutions of such persons
have been protected.
10. The learned Government Pleader as well as other learned
counsel representing the contesting Respondents have opposed these
submissions. The submission of the learned Government Pleader is
that the decisions of the Apex Court granting protection to the
employment or to the admission of the Petitioners in the educational
institutions even after invalidation of the caste claims have been
rendered in exercise of powers under Article 142 of the Constitution of
India and hence, the same cannot be read as a binding precedents.
He submitted that some of the decisions relied upon by the Petitioners
have been rendered without taking into consideration Section 10 of the
said Act which mandates that after invalidation of caste claim, the
benefits taken on the basis of the caste certificate cannot be retained.
The learned Government Pleader relied upon a decision of the Apex
Court in the case of R. Vishwanatha Pillai v. State of Kerala & others.8
The learned Government Pleader relied upon a decision of Full Bench
this Court in the case of Ganesh Rambhau Khalale v. State of
7 (2007)14 SCC 481
8 AIR 2004 SC 1469(1)
wp-8014.12,6323,5196,11518,11740n5098.13
Maharashtra and others9. Reliance is placed on a decision of the
Division Bench of this Court in the case of Shailesh Krishnarao Kohad v.
Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur and
others.10 Reliance is also placed on another decision of Division Bench
of this Court at Nagpur in the case of Rajendra Ramaji Mahisbadwe v.
Joint Commissioner and Vice Chairman Scheduled Tribe Caste Certificate
Scrutiny Committee, Nagpur and another.11 Some of the learned counsel
appearing for the Respondents relying upon a decision of the Apex
Court in the case of Kumari Madhuri Patil and another v. Additional
Commissioner, Tribal Development and others12 submitted that Clause 15
of the directions issued by the Apex Court clearly lays down that on the
cancellation of the caste certificate, the employment of the candidates
has to be terminated. It is pointed out that in a recent judgment of the
larger bench of the Apex Court in the case of Dayaram v. Sudhir Batham
and others,13 the Apex Court has reiterated the view taken in the case of
Kumari Madhuri Patil and has held that the directions issued in the
case of Kumari Madhuri Patil shall continue in absence of the
legislation governing the subject. Their submission is that those who
deprive the benefit of reserved posts to genuine candidates do not
9 [2009(2) Mh.L.J 788]
10 [2010(1) Mh.L.J. 790
11 In Writ Petition No.5569 of 2012 decided on 11th March 2013
12 [(1994)6 SCC 241]
13 [(2012)1 SCC 333]
wp-8014.12,6323,5196,11518,11740n5098.13
deserve protection of the Writ Court. We must note here that there are
various other decisions relied upon by the learned counsel appearing for
the rival parties. We have made reference only to the decisions on
which much emphasis was laid by the learned counsel.
CONSIDERATION OF SUBMISSIONS
11. We have given careful consideration to the submissions.
Firstly, we must make a reference to the said Act and in particular
Section 10 thereof. The said Act came into force on 10 th October 2001.
Section 10 of the said Act reads thus:
"10.(1) Whoever not being a person belonging to
any of the Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes of
Special Backward Category secures
admission in any educational institution
against a seat reserved for such Castes,
Tribes or Classes, or secures any
appointment in the Government, local
authority or in any other Company or
corporation, owned or controlled by the
Government or in any Government aided
institution or co-operative society against a
post reserved for such Castes, Tribes or
Classes by producing a false Caste Certificate
shall, on cancellation of the Caste Certificate
by the Scrutiny Committee, be liable to be
debarred from the concerned educational
institution, or as the case may be, discharged
from the said employment forthwith and any
other benefits enjoyed or derived by virtue
wp-8014.12,6323,5196,11518,11740n5098.13
of such admission or appointment by such
person as aforesaid shall be withdrawn
forthwith.
(2) Any amount paid to such person by the
Government or any other agency by way of
scholarship, grant, allowance or other
financial benefit shall be recovered from
such person as an arrears of land revenue.
(3) Notwithstanding anything contained to any
Act for the time being in force, any Degree,
Diploma or any other educational
qualification acquired by such person after
securing admission in any educational
institution on the basis of a Caste Certificate
which is subsequently proved to be false
shall also stand cancelled, on cancellation of
such Caste Certificate by the Scrutiny
Committee.
(4) Notwithstanding anything contained in any
law for the time being in force, a person
shall be disqualified for being a member of
any statutory body if he has contested the
election for local authority, co-operative
society, or any statutory body on the seat
reserved for any of Scheduled Castes,
Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other
Backward Classes or Special Backward
Category by procuring a false Caste
Certificate as belonging to such Caste, Tribe
or Class on such false Caste Certificate being
cancelled by the Scrutiny Committee, and
any benefits obtained by such person shall
be recoverable as arrears of land revenue
and the election of such person shall be
deemed to have been terminated
retrospectively."
wp-8014.12,6323,5196,11518,11740n5098.13
12. Before we consider the effect of Section 10 of the said Act,
we must note here that Section 4 of the said Act confers a power on the
Competent Authority to issue caste certificates. The said Act is
applicable to all the reserved categories such as Scheduled Castes,
Scheduled Tribes, De-notified Tribes, Other Backward Classes and
Special Backward Classes. Under Section 6 of the said Act, the
Scrutiny Committees have been constituted for verification of the caste
certificates and for issuing the validity certificates. As per the scheme
of the said Act, a caste certificate issued by the Competent Authority in
accordance with Section 4 of the said Act is never conclusive and, at the
highest, it is only a prima facie evidence of the caste status which is
subject to confirmation and verification by the Caste Scrutiny
Committee. Section 7 of the said Act confers power on the Caste
Scrutiny Committee to confiscate and cancel false caste certificates.
Section 8 of the said Act provides that the burden of proving that a
person belongs to a scheduled caste or Scheduled Tribe is on the
Claimant.
13. Sub-section (1) of Section 10 of the said Act clearly
provides that if a person not being a person belonging to any of the
reserved categories to which the said Act is applicable, secures
admission to any educational institution against a reserved seat or
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secures any appointment on a post which is reserved by producing a
false caste certificate shall on cancellation of the caste certificate be
liable to be debarred from the concerned educational institution or as
the case may be, discharged from the employment forthwith. It also
provides that any other benefits enjoyed or derived by virtue of such
admission or appointment by such person as aforesaid shall be
withdrawn forthwith. Sub-section (2) thereof provides that the
amount paid to such person by the Government or any other agency by
way of scholarship, grant, allowance or other financial benefit shall be
recovered from such person as an arrears of land revenue. Sub-section
(3), which is given an overriding effect over the other Acts, provides
that any Degree, Diploma or any other educational qualification
acquired by such person after securing admission in any educational
institution on the basis of a Caste Certificate which is subsequently
proved to be false shall also stand cancelled.
14. At this stage, we must note an argument which is normally
canvassed in some of the cases. It is contended that cancellation of the
caste certificate on account of failure to prove the caste claim before
the Scrutiny Committees does not necessarily mean that the caste claim
is found to be false. On this aspect, we must make a reference to a
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decision of full bench of this Court in the case of Ramesh Suresh Kamble
vs State of Maharashtra14 The full bench held thus
"Upon conjoint reading of sections 6(2) and 7(1)
of Maharashtra Act No.XXIII of 2001, it becomes
very clear that the Caste Certificate is cancelled
and confiscated when the Scrutiny Committee is
of the opinion that the certificate has been
obtained fraudulently by the applicant. Conversely,
once the certificate obtained by the applicant from
the Competent Authority is cancelled and confiscated,
logically what follows from it is that the Caste
Scrutiny Committee was not satisfied with the
correctness of the certificate obtained from the
Competent Authority; though the Caste Scrutiny
Committee may not say in so many words that such
certificate has been obtained fraudulently. What is
important for the purposes of section 16(1C)(a) of
the M.M.C. Act is not the express finding by the Caste
Scrutiny Committee that the caste certificate was
obtained by the applicant by making false claim or
declaration, but the factum of invalidation and
cancellation of caste certificate by the Scrutiny
Committee. The cancellation of caste certificate by
the Scrutiny Committee implies that in the
opinion of the Scrutiny Committee, such
certificate has been obtained fraudulently because
the inquiry by the Scrutiny Committee centres
around the correctness of such caste certificate
obtained from the Competent Authority."
(emphasis added)
The full Bench further held thus :
"The inquiry under section 7(1) of Maharashtra Act
No.XXIII of 2001 by the Caste Scrutiny Committee is
focused on the correctness of the Caste Certificate
obtained by such person from the Competent
14 2007(1)Mh.L.J423
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Authority. The Caste Certificate is issued by the
Competent Authority on the application made by the
concerned person disclosing certain information. If
the Caste Certificate is cancelled by the Caste
Scrutiny Committee, it obviously means that the
Caste Certificate has been obtained by that person
from the Competent Authority on incorrect facts or
erroneous representation. It is not necessary that
such claim or declaration must involve turpitude of
mind. There may not be any deliberateness in it.
The failure on the part of the candidate to
establish his caste claim before the Scrutiny
Committee and the declaration that the
Certificate obtained from the Competent
Authority is invalid and thereby cancelled leads
to necessary inference that such person made a
false claim of his caste belonging to the reserved
category to which he did not belong and, thus,
incurring disqualification under section 16(1C)
(a)"
(emphasis added)
The ultimate conclusion of the Full Bench reads thus:-
"28. It is not necessary for the Caste Scrutiny
Committee, as we have already discussed above, to
record specifically that the Caste Certificate has been
obtained by the applicant by making false claim or
declaration. Once the Caste Certificate obtained by
the candidate under section 4 from the
Competent Authority is cancelled by the Scrutiny
Committee under section 7(1) of Maharashtra Act
No.XXIII of 2001, the implicit inference is that
such certificate has been obtained by making
false claim or declaration because the power of
the Scrutiny Committee to cancel the caste
certificate is founded on such certificate having
been obtained fraudulently."
(emphasis added)
wp-8014.12,6323,5196,11518,11740n5098.13
15. A caste certificate is granted on the basis of an application
made by an individual to the Competent Authority. If such a person
fails to prove his caste claim before the Caste Scrutiny Committee, the
claim made by him that he belongs to a particular reserved category
must be treated as a claim which is false. That is what the binding
precedent of the Full Bench lays down. Hence, if on the basis of a caste
certificate, an appointment is made on a post reserved for any
reserved category and if, subsequently, the caste claim is negatived by
the Caste Scrutiny Committee by cancelling the caste certificate, the
case is obviously of making a false claim of caste status. Therefore, the
moment the Caste Scrutiny Committee cancels the caste certificate on
the ground of failure of a person to prove his caste claim on merits, the
claim made by such a person regarding caste has to be treated as a false
claim, and therefore, the consequences provided in Section 10 of the
said Act must follow. The language of the Section 10 leaves no doubt
that the provisions thereof are mandatory in nature. As a consequence
of the cancellation of caste certificate, the termination of employment
and the cancellation of admission to an educational institution must
follow. Therefore, to those who have obtained employment or
admissions to educational institutions after the date of coming into
force of the said Act, Section 10 of the said Act will squarely apply and
wp-8014.12,6323,5196,11518,11740n5098.13
Writ Court cannot exercise extraordinary jurisdiction under Article 226
of the Constitution of India to protect the admission or employment of
such a candidate contrary to the mandatory provisions of Section 10 of
the said Act. Therefore, in the cases of those who obtained
employment after coming into force of the said Act on the basis of a
caste certificates which which are cancelled on merits in accordance
with Section 7 of the said Act, Section 10 of the said Act leaves no
discretion to the Court to protect the employment of such persons.
None of the decisions relied upon by the Petitioners hold that to the
cases to which Section 10 of the said Act is applicable, a protection can
be granted by the Court to the employment. Some argument was
sought to be canvassed on the case of Kavita Solunke. The decision of
the Apex Court deals with the cases of those whose employment was
confirmed prior to the date on which the said Act came in to force.
16. For the first time, in the case of Madhuri Patil, directions
were issued to establish Caste Scrutiny Committees. Clauses 14 and 15
of the directions issued by the Apex Court read thus:
"14. In case, the certificate obtained or social status
claimed is found to be false, the
parent/guardian/the candidate should be
prosecuted for making false claim. If the
prosecution ends in a conviction and sentence
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of the accused, it could be regarded as an
offence involving moral turpitude,
disqualification for elective posts or offices
under the State or the Union or elections to
any local body, legislature or Parliament.
15. As soon as the finding is recorded by the
Scrutiny Committee holding that the
certificate obtained was false, on its
cancellation and confiscation
simultaneously, it should be communicated
to the educational institution concerned or
the appointing authority by registered post
with acknowledgement due with a request
to cancel the admission or the
appointment. The Principal etc. of the
educational institution responsible for
making the admission or the appointing
authority, should cancel the
admission/appointment without any
further notice to the candidate and debar
the candidate from further study or continue
in office in a post."
(emphasis added)
We have also noted that in the case of Dayaram v. Sudhir
Batham and others, the Apex Court has expressly held that the
directions issued by it in the case of Madhuri Patil shall be followed till
an appropriate legislation is framed. In paragraph 22, the Apex Court
held thus :
"22. Therefore, we are of the view, that Directions
1 to 15 issued in exercise of power under Articles
142 and 32 of the Constitution, are valid and
laudable, as they were made to fill the vacuum in
the absence of any legislation, to ensure that only
genuine Scheduled Caste and Scheduled Tribe
wp-8014.12,6323,5196,11518,11740n5098.13
candidates secured the benefits of reservation and
the bogus candidates were kept out. By issuing such
directions, this Court was not taking over the
functions of the legislature but merely filling up the
vacuum till the legislature chose to make an
appropriate law."
The case of Madhuri Patil was decided on 2nd September 1994. Hence,
in case of persons who secured appointments on reserved posts after
the said date, in the event the caste claim is invalidated, the
consequences provided in clause 15 of the directions in the case of
Madhuri Patil will apply.
17. Now it will be necessary to make a reference to the
decision of the Apex Court in the case of State of Maharashtra v. Milind
and others14. A Writ Petition was filed by one Milind before this Court.
He claimed that he belonged to Halba, a Scheduled Tribe. On the basis
of the caste certificate issued to him, he secured admission to the
M.B.B.S Degree course in the year 1985-1986. The Caste Scrutiny
Committee recorded a finding that he did not belong to the caste Halba
which is a notified Scheduled Tribe and his caste was Koshti. This
Court took a view that Halba Koshti was a sub-division of the main tribe
Halba and hence, his caste claim that he belongs to Halba, a Scheduled
14 AIR 2001 SC 393
wp-8014.12,6323,5196,11518,11740n5098.13
Tribe was upheld. The said decision of this Court was challenged
before the Apex Court. In Paragraph 33, the Apex Court held thus:
"33. ...............The jurisdiction of the High Court
would be much more restricted while dealing with
the question whether a particular caste or tribe
would come within the purview of the notified
Presidential Order, considering the language of
Articles 341 and 342 of the Constitution. These
being the parameters and in the case in hand, the
Committee conducting the inquiry as well as the
Appellate Authority, having examined all relevant
materials and having recorded a finding that
Respondent 1 belonged to "Koshti" caste and has no
identity with "Halba/Halbi" which is the Scheduled
Tribe under Entry 19 of the Presidential Order,
relating to the State of Maharashtra, the High Court
exceeded its supervisory jurisdiction by making a
roving and in-depth examination of the materials
afresh and in coming to the conclusion that
"Koshtis" could be treated as "Halbas". In this
view the High Court could not upset the finding
of fact in exercise of its writ jurisdiction."
( emphasis added )
18. In Paragraph 38, the Apex Court held thus:
"38. Respondent 1 joined the medical course for
the year 1985-86. Almost 15 years have passed by
now. We are told he has already completed the
course and may be he is practising as a doctor. In
this view and at this length of time it is for nobody's
benefit to annul his admission. Huge amount is
spent on each candidate for completion of medical
course. No doubt, one Scheduled Tribe candidate
was deprived of joining medical course by the
admission given to Respondent 1. If any action is
taken against Respondent 1, it may lead to depriving
wp-8014.12,6323,5196,11518,11740n5098.13
the service of a doctor to the society on whom
public money has already been spent. In these
circumstances, this judgment shall not affect the
degree obtained by him and his practising as a
doctor. But we make it clear that he cannot claim to
belong to the Scheduled Tribe covered by the
Scheduled Tribes Order. In other words, he cannot
take advantage of the Scheduled Tribes Order any
further or for any other constitutional purpose.
Having regard to the passage of time, in the given
circumstances, including interim orders passed by
this Court in SLP (C) No. 16372 of 1985 and other
related matters, we make it clear that the
admissions and appointments that have become
final, shall remain unaffected by this judgment."
19. A Full Bench of this Court in the case of Ganesh Rambhau
Khalale had an occasion to interpret the decision of the Apex Court in
the case of Milind. The issue which arose for the consideration of the
Full Bench was whether the direction given by the Apex Court in the
decision in the case of Milind is a declaration of law under Article 141
of the Constitution of India which is binding on all the Courts or
whether the said direction has been issued in exercise of powers under
Article 142 of the Constitution of India which only protects the
Petitioner before the Apex Court in the facts and circumstances stated
therein. The Full Bench in Paragraph 13 held thus:
"13. Having regard to the legal position that
emerges from the above referred judgments
we record the following conclusions and
answer the question framed:
wp-8014.12,6323,5196,11518,11740n5098.13
(1) The observations/directions issued
by the Supreme Court in para 36 of the
judgment in the case of State V. Milind
reported in 2001 (1) Mah.L.J. SC 1 : (AIR
2001 SC 393) is not the `law declared by
the Supreme Court' under Article 141 of
the Constitution of India.
(2) The said observations/directions are
issued in exercise of powers under Article
142 of the Constitution.
(3) The said observations/directions
have no application to the cases relating
to appointments and are restricted to the
cases relating to admissions.
(4) The protection, if any, to be granted
in the facts and circumstances of the case
would depend upon the exercise of
discretion by the Supreme Court under
Article 142 of the Constitution. As the
powers under Article 142 are not available to
the High Court no protection can be granted
by this Court in cases relating to
admissions."
(emphasis added)
20. At this stage, it will be necessary to make a reference to
the decision of the Apex Court in the case of Union of India v.
Dattatraya Namdeo Mendhekar and others15. This was a case decided
by the larger bench of the Apex Court consisting of three Hon'ble
Judges. In Paragraphs 5 and 6, the Apex Court referred to the decision
in the case of Milind. The Paragraphs 5 and 6 read thus:
15 AIR 2008 SC 1678
wp-8014.12,6323,5196,11518,11740n5098.13
"5. Milind related to a medical college admission.
The question that arose for consideration in that
case was whether it was open to the State
Government or courts or other authorities to
modify, amend or alter the list of Scheduled
Tribes and in particular whether "Halba-Koshti"
was a sub-division of "Halba" Tribe. This Court
held that it was not permissible to amend or alter
the list of Scheduled Tribes by including any sub-
divisions or otherwise. On facts, this Court found
that the respondent therein had been admitted in
medical course in ST category, more than 15
years back; that though his admission deprived a
Scheduled Tribe student of a medical seat, the
benefit of that seat could not be offered to
Scheduled Tribe student at that distance of time
even if the respondent's admission was to be
annulled; and that if his admission was annulled,
it will lead to depriving the services of a doctor to
the society on whom the public money had
already been spent. In these peculiar
circumstances, this Court held that the decision
will not affect the degree secured by the
respondent or his practice as a doctor but made it
clear that he could not claim to belong to a
Scheduled Tribe. But the said decision has no
application to a case which does not relate to an
admission to an educational institution, but
relates to securing employment by wrongly
claiming the benefit of reservation meant for
Scheduled Tribes. When a person secures
employment by making a false claim regarding
caste/tribe, he deprives a legitimate candidate
belonging to Scheduled Caste/Tribe, of
employment. In such a situation, the proper
course is to cancel the employment obtained on
the basis of the false certificate so that the post
may be filled up by a candidate who is entitled to
the benefit of reservation.
wp-8014.12,6323,5196,11518,11740n5098.13
6. In this context, we may also refer to the decisions
in Bank of India vs. Avinash D. Mandivikar and
BHEL V. Suresh Ramkrishna Burde wherein this
Court held that when a person secures
appointment on the basis of a false caste
certificate, he cannot be allowed to retain the
benefit of the wrong committed by him and his
services are liable to be terminated. In the latter
case, this Court explained Milind thus (Suresh
Ramkrishna Burde case SCC p.340, para7)
"7 The High Court has granted relief to
the respondent and has directed his
ig reinstatement only on the basis of the
Constitution Bench decision of this Court
in State of Maharashtra Vs. Milind. In our
opinion, the said judgment does not lay
down any such principle of law that
where a person secures an appointment
by producing a false caste certificate,his
services can be protected and an order of
reinstatement can be passed if he gives an
undertaking that in future he and his
family members shall not take any
advantage of being member of a caste
which is in reserved category."
This court further held that even in cases of
admission to educational institutions, the
protection extended by Milind will be applicable
only where the candidate had successfully
completed the course and secured the degree,
and not to cases where the falsehood of the caste
certificate is detected within a short period from
the date of admission."
21. In so many words, the Apex Court observed that the
decision in the case of Milind has no application to a case which does
wp-8014.12,6323,5196,11518,11740n5098.13
not relate to an admission to the educational institution but relates to
securing employment by wrongly claiming benefit of reservation. The
Apex Court held that the protection extended by the decision in the
case of Milind will be applicable only when the candidate has
successfully completed the course and has secured the degree and not
to the cases where falsification of caste certificate is detected within a
short period from production of the caste certificate.
22.
In the case of Kavita Solunke decided by the Apex Court in
the year 2012, the Petitioner was appointed as a teacher on 1 st August
1995. Her appointment was duly approved on 12 th July 1996 by the
Zilla Parishad. A decade thereafter, the Head Master of the school
called upon the Petitioner to get the caste certificate verified from the
Scrutiny Committee. The said Kavita was claiming that her caste was
Halba which is a Scheduled Tribe. The Caste Scrutiny Committee
invalidated the caste claim by observing that the said Kavita was Koshti
which is not a Scheduled Tribe. On the basis of the order of the Caste
Scrutiny Committee, the employment of the Petitioner was terminated.
An Appeal preferred by the Petitioner against the order of termination
was dismissed. The Petitioner challenged the order of the Caste
Scrutiny Committee by filing a Writ Petition in this Court. The Writ
Petition was dismissed. In Paragraph 6 of the decision in the case of
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Kavita Solunke, the Apex Court summarized the controversy before it
which reads thus:
"6. The learned counsel appearing for the
appellant raised a short point before us. He
contended that the appointment of the appellant
having attained finality, could not have been set
aside on the ground that Koshti-Halbas were not
"Halbas" entitled to the benefit of reservation as
Scheduled Tribes. Relying upon the decision of the
Constitution Bench of this Court in State of
Maharashtra V. Milind, it was urged by the learned
counsel that the appellant was entitled to the
protection of continuance in service, no matter
"Halba-Koshtis" were not recognised as "Halbas" by
this Court. The High Court had not, according to
the learned counsel, correctly appreciated the
decision of this Court in Milind case and thereby
fallen in an error in dismissing the writ petition filed
by the appellant."
23. The Apex Court thereafter considered its decision in the
case of Milind. In Paragraph 16, the Apex Court observed thus:
"16. If "Halba-Koshti" has been treated as "Halba"
even before the appellant joined service as a teacher
and if the only reason for her ouster is the law
declared by this Court in Milind case, there is no
reason why the protection against ouster given by
this Court to appointees whose applications had
become final should not be extended to the
appellant also. The Constitution Bench had in
Milind case noticed the background in which the
confusion had prevailed for many years and the
fact that appointments and admissions were
made for a long time treating "Koshti" as a
wp-8014.12,6323,5196,11518,11740n5098.13
Scheduled Tribe and directed that such
admissions and appointments wherever the same
had attained finality will not be affected by the
decision taken by this Court."
24. In paragraph 19, the Apex Court held thus:
"19. Our attention was drawn by the counsel for
the respondents to the decision of this Court in
BHEL v. Suresh Ramkrishna Burde in which the
protection against ouster granted by the decision in
Milind case was not extended to the respondent
therein. A bare reading of the said decision,
however, shows that there is a significant difference
in the factual matrix in which the said case arose
for consideration. In burde case the Scrutiny
Committee had found that the caste certificate was
false and therefore, invalid. That was not the
position either in Milind case, the Scrutiny
Committee had never alleged any fraud or any
fabrication or any misrepresentation that could
possibly disentitle the candidate to get relief from
the Court. In the case at hand also there is no such
accusation against the appellant that the certificate
was false, fabricated or manipulated by
concealment or otherwise. Refusal of a benefit
flowing from the decision of this Court in Milind
case may, therefore, have been justified in Burde
case but may not be justified in the case at hand,
where the appellant has not been accused of any
act or omission or commission of the act like the
one mentioned above to disentitle her to the relief
prayed for. The reliance upon Burde case,
therefore, is of no assistance to the respondent."
25. Ultimately, in Paragraph 22, the Apex Court observed thus:-
"22. Applying the above to the case at hand,
we do not see reason to hold that the appellant
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had fabricated or falsified the particulars of
being a Scheduled Tribe only with a view to
obtain an undeserved benefit in the matter of
appointment as a teacher. There is, therefore, no
reason why the benefit of protection against
ouster should not be extended to her subject to
the usual condition that the appellant shall not
be ousted from service and shall be reinstated if
already ousted. But she would not be entitled to
any further benefit on the basis of the certificate
which she has obtained and which was 10 years
after its issue cancelled by the Scrutiny Committee."
26. A Division Bench of this Court in the case of Prabhakar s/o
Rushi Nandanwar decided on 9th October 2012 makes a reference to the
decision of the Apex Court in the case of Kavita Solunke. Referring to
the decision in the case of Milind Katware, in Paragraph 8 the Division
Bench held thus:
"8. ..... Not only thus, even in the case of Milind
Katware the Division Bench of this Court had also
held and reiterated the view taken in Abhay Parate's
case that Halba Koshti is sub tribe of Halba/Halbi.
It was this judgment which was carried by the State
in appeal and for the first time i.e on 28.11.2000
the controversy was put to rest when the
Constitution Bench in unequivocal terms held that
Halba Koshtis are not included in entry Halba of
Scheduled Tribes and as such are not entitled to the
benefits as Scheduled Tribe. It can thus be clearly
seen that the legal position pertaining to Halba
Koshti in the Vidarbha Region from 1984 till 2001
on the basis of the judgment in the case of Abhay
Parate was that the Halba Koshtis are included in
Halba/Halbi Scheduled Tribe. It is thus clear that
wp-8014.12,6323,5196,11518,11740n5098.13
taking into consideration these peculiar facts and
circumstances, the Apex Court had protected the
appointments/admissions that had become final. No
doubt that there have been divergent views express
by the Apex Court, in some matters it has been held
that the protection is applicable to appointment,
while in some others it has been held that it is not
applicable to appointments."
Thereafter, the Division Bench considered the decision in the case of
Kavita Solunke . In Paragraphs 11 and 12, the Division Bench held thus:
"11.
It can thus be clearly seen that the Apex
Court in the case of Kavita Solunke has
clearly held that even Halba Koshtis whose
appointments had become final were
entitled to protection of their employment.
In so far as the cases taking a different
view are concerned, the Apex Court has
clearly held that the protection was
refused to the candidates wherein their
claim was found to be fabricated or
fraudulent. In the present case, there is no
finding to the effect that the petitioners' claim
is either fraudulent or fabricated.
12. It can thus be clearly seen that taking into
consideration the peculiar circumstances in
the case of Milind Katware, the Apex Court
has protected all admissions/appointments
which had become final prior to the date of
the judgment. In the case of Kavita
Solunke , the Apex Court has in
unequivocal terms held that all
appointments even of Halba Koshtis which
had become final are entitled to be
protected unless it is found that the claim
is fraudulent or fabricated."
(emphasis added)
wp-8014.12,6323,5196,11518,11740n5098.13
The ratio of the decision in the case of Kavita Solunke is
set out in Paragraph 12. The decision in the case of Kavita Solunke
applies only in the case of those who secured employment on a seat
reserved for Halba, a Scheduled Tribe and whose caste certificates were
cancelled after their appointments had become final. The directions in
the case of Kavita Solunke are confined only to the aforesaid limited
cases of those who were claiming to be Koshtis or Halba Koshtis whose
appointments had became final as on 28 th November 2000. Moreover,
the directions apply only when the caste claim is neither fraudulent or
fabricated. After coming into force of the said Act, the consequences
provided in Section 10 of the said Act shall follow and a claim for
protection of the employment on the ground that the caste claim was
not fraudulent or fabricated will not be available in case of
appointments made after coming into force of the said Act. The case
of A.P. Ramtekkar is decided in the facts of the case. The direction in
the case of Dattu relied upon in the said case is in exercise of powers
under Article 142 of the Constitution of India. It does not notice that
the decision in the case of Kavita Solunke is confined to those who were
claiming to be Halbas. Hence, it is not a binding precedent.
wp-8014.12,6323,5196,11518,11740n5098.13
27. Though in the case of Ganesh Rambhau Khalale, the Full
Bench held that the directions issued in the case of Milind were in
exercise of powers under Article 142 of the Constitution of India and
apply only to the cases relating to the admissions, now what holds the
field is the decision of the Apex Court in the case of Kavita Solunke. We
have extensively referred to what is held by the Apex Court in the case
of Kavita Solunke. In Paragraph 15, the Apex Court has noted the
submissions made on behalf of Kavita that her appointment had
attained finality long before the judgment of this Court in the case of
Milind and that even when she was found to be Koshti and not Halba by
the Caste Scrutiny Committee, she was entitled to protection against the
ouster. The Apex Court held that there was merit in the said
submission. Though the decision in the case of Milind was in relation
to the admission to an educational institution, in Paragraph 16 in the
case of Kavita Solunke, the Apex Court observed that the said decision
will apply even in case of appointments which had attained finality.
That is the reason why in the case of Prabhakar Nandanwar, the
Division Bench had granted protection to the employment of the
Petitioners which had become final on 28 th November 2000. Thus, the
decision of the Apex Court in the case of Kavita Solunke will apply only
to a case where a person claiming to be a Koshti or Halba Koshti was
appointed on a post reserved for a Scheduled Tribe on or before 28 th
wp-8014.12,6323,5196,11518,11740n5098.13
November 2000. If his appointment has become final as of that date,
his appointment cannot be disturbed even after invalidation of his caste
claim by the Caste Scrutiny Committee provided there is no finding
recorded that the claim was fraudulent or fabricated. The decision in
the case of Kavita Solunke will apply only to those cases where claim of
a candidate who was belonging to Koshti or Halba Koshti caste that he
falls in the category of a Scheduled Tribe as Halba has been negatived
and the appointment of the candidate had become final. The decision
of Full Bench in the case of Ganesh applies only to the case of Milind.
Thus, Kavita Solunke only applies where:
(1) the person claims to be a Koshti or Halba Koshti;
(2) the person was appointed to a post reserved for
Scheduled Tribes;
(3) that appointment was on or before 28th November
2000;
(4) the appointment has become final as on that date;
(5) the caste invalidation of the caste certificate by the
wp-8014.12,6323,5196,11518,11740n5098.13
Caste Scrutiny Committee is not on the basis that
the caste certificate was fraudulent or fabricated;
It is only when all five of the conditions are met that Kavita
Solunke will be applied to protect employment. We must reiterate that
the decision in the case of Kavita Solunke is confined only to those who
were claiming to be Halbas and will not apply to the persons who
claimed benefit of reservation any other reserved category and whose
claim has been negatived even if there appointments had become final
on or before 28th November 2000.
28. In the case of Prashant Haribhau Khawas v. State of
Maharashtra and others16, the Division Bench was considering Section
10 of the said Act. This was a case where the Petitioners had obtained
caste certificates recording that they belong to Halba, a Scheduled
Tribe. The Caste Scrutiny Committee invalidated the caste certificates.
A prayer was made in the Petition for protection on the basis of the
decision of the Apex Court in the case of Milind. The State
Government opposed the prayer by relying upon Section 10 of the said
Act by contending that in view of the consequences provided under
Section 10, the protection cannot be granted to the Petitioners. In
16 [2008(2) Mh.L.J. 322
wp-8014.12,6323,5196,11518,11740n5098.13
Paragraph 28 of the decision, the Division Bench considered the
arguments based on Section 10 and negatived the argument of the
Government that Section 10 of the said Act is retrospective in operation.
Therefore, the Division Bench protected the employment of the
Petitioners. We must note here that in the facts of the case of Prashant
Haribhau Khawas, the Petitioners were granted employment before the
said Act came into force.
29.
At this stage, we may make a reference to the decision of
the Apex Court in the case of State of Maharashtra and others v. Sanjay
K. Nimje. This was a case where the Respondent before the Apex Court
was appointed in the Government employment on 29 th June 1995. The
Respondent claimed to be a member of Halba community which is a
Scheduled Tribe. However, the Caste Scrutiny Committee found that
the Respondent was Koshti and not Halba. The caste Koshti has been
declared as Special Backward Class in the State of Maharashtra.
Before this Court, reliance was placed on the policy of the State
Government incorporated in the Government Resolution dated 15 th
June 1995. This Court granted protection on the ground that though
the Respondent was appointed on 29 th June 1995, he was selected on
15th June 1995 when the said Government Resolution came into force.
In the Appeal preferred by the State of Maharashtra, reliance was made
wp-8014.12,6323,5196,11518,11740n5098.13
on Section 10 of the said Act. The Apex Court in Paragraphs 14 and 15
held that the date of appointment of the Respondent was 29 th June
1995 and the Government Resolution protects only those who were
appointed prior to 15th June 1995. Therefore, the Apex Court observed
that the said Act will apply as the Respondent was not protected by the
Government Resolution. The Apex Court in Paragraph 21 observed
thus:
"21. Thus, it is a clear case where the provisions
of the 2000 Act would apply. We see no reason as
to why the statutory provisions should not be
directed to apply in the instant case. It may be that
at one point of time, keeping in view the stand
taken in a particular case, some indulgence had
been shown. Indulgence might have been shown to
the students or who were found to have acted bona
fide but the same would not mean that this Court
would pass an order contrary to or inconsistent
with the provisions of a legislative Act."
(emphasis added)
30. At this stage, a reference will have to be made to another
decision of the Apex Court in the case of Union of India and others v.
Deepak Y. Gotefode17. This was a case where the Respondent before the
Apex Court was appointed on the post of clerk on 6 th June 1995 on a
post reserved for Scheduled Tribe. He claimed that he belongs to
Halba, a Scheduled Tribe. The Caste Scrutiny Committee invalidated
the caste claim. The order of termination of employment was passed
17 [2008(1) Mh.L.J. 790]
wp-8014.12,6323,5196,11518,11740n5098.13
against the Respondent on the basis of the said order which was set
aside by the Central Administrative Tribunal. The Tribunal relied upon
the decision of the Apex Court in the case of Milind. The Caste
Scrutiny Committee had found that the Respondent belongs to the caste
"Koshti". Reliance was placed on the Government Notification dated
15th June 1995. In Paragraph 5, the Apex Court held thus:
"5. In view of the above reasoning, we are of the
considered view that the respondent obtained
appointment by annexing an incorrect certificate
and his subsequent conduct disentitles him from
claiming any equitable relief. The respondent has
deprived a genuine person belonging to Halba,
Scheduled Tribe, from getting appointment and thus
cannot be protected to take advantage of his own
wrong. There is no reason for the Court to disturb
the finding of facts arrived at by the Scrutiny
Committee and no reason whatsoever has been
given in the impugned judgment for not accepting
the view of the Committee. The Court or the
Tribunal would not embark upon the jurisdiction
which is vested in the Scrutiny Committee. The
view taken by the Committee calls for no
interference. Resultantly, this writ petition is
allowed. The impugned judgment of the Tribunal
dated 20th April 2006 is set aside. The petitioners
are at liberty to take action against the respondent
in accordance with law."
31. Now we turn to the decision in Rajendra Ramaji
Mahisbadwe v. Joint Commissioner and Others. This was a case where
the Petitioner was appointed on a post reserved for Scheduled Tribe on
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the basis of the caste claim that he belongs to Halba, a Scheduled Tribe.
The Caste Scrutiny Committee invalidated the caste certificate and
accordingly a letter dated 3rd November 2009 terminating the
employment of the Petitioner was issued. The challenge in the Petition
was restricted to the termination of the Petitioner by accepting that he
does not belong to Halba. The Petitioner relied upon a decision of the
Apex Court in the case of Milind. In the light of the decision of the Full
Bench in the case of Ganesh Khalale, this Court declined to protect the
employment of the Petitioner on the ground that the directions have
been issued in the case of Kavita Solunke in exercise of the powers
under Article 142 of the Constitution of India. However, to this extent,
the said decision is not a binding precedent as it does not consider the
earlier binding precedent in the case of Prabhakar Nandanwar.
32. At this stage, we may also make a useful reference to a
decision of the Division Bench in the case of Apurva Ashok Gokhale v.
State of Maharashtra and Others.18 The Division Bench while relying
upon Section 10 of the said Act held that the benefit accrued to the
student on the basis of the caste certificate which was invalidated has to
be withdrawn.
18 [2013(1) Mh.L.J.139]
wp-8014.12,6323,5196,11518,11740n5098.13
33. There are submissions made in some of the Petitions based
on the State Government Resolution dated 15 th June 1995. The said
Government Resolution applies to a limited category of employees who
have been appointed prior to the cut off date i.e. 15 th June 1995. In
the case of Kumari Bhamini Sadashiv Thanekar V/s. State of
Maharashtra and Others,19 a Division Bench of our Court held that there
is nothing in the said Act of 2000 to suggest even remotely that the
legislature intended to take away the benefits acquired under the
Government Resolution dated 15th June 1995.
34. Now, at this stage, we must make a reference to the recent
decisions of this Court dated 5th, 8th, 9th and 10th July 2013 in Writ
Petition No.5530 of 2012 (Ku. Vijaya Deorao Nandanwar vs Chief Officer)
and other connected Petitions. We have carefully perused the said
judgment. The said judgment refers to various decisions of the Apex
Court which we have considered. The Division Bench has relied upon
the decision in the case of Milind without noticing the decision of the
Full Bench in the case of Ganesh Rambhau Khalale. Thereafter, the
Court has referred to the decision in the case of Kavita Solunke. From
paragraphs 27 to 33 of the decision, it appears that the Division Bench
invoked Article 14 of the Constitution of India for protecting the
wp-8014.12,6323,5196,11518,11740n5098.13
employment of similarly placed persons. Perusal of the operative part
of the said decision shows that the Division Bench has protected the
employment of the Petitioners as of 28th November 2000. We do not
find in that decision any proposition or declaration of law.
35. The summary of our conclusions is as under:-
(i) When a person secures an appointment on a
reserved post after 2nd September 1994, as a
consequence of invalidation of his caste claim by the
Caste Scrutiny Committee, direction 15 in the case
of Madhuri Patil will have to be implemented;
(ii) In case of appointments made to reserved posts
after coming into force of the said Act, on the
invalidation of the caste claim/cancellation of the
caste certificates by the Caste Scrutiny Committee,
the consequences provided in Section 10 of the said
Act shall follow;
(iii) Notwithstanding the decision in the case of Madhuri
Patil and Section 10 of the said Act, the protection
wp-8014.12,6323,5196,11518,11740n5098.13
to employment can be granted only to those who
are governed by the law laid down by the Apex
Court in the case of Kavita Solunke as held in
Paragraph 27 above. We must reiterate that the
decision in the case of Kavita Solunke is confined
only to those who were claiming to be Halbas and
will not apply to the persons who claimed benefit of
reservation on the basis of any other caste and
whose claim has been negatived even if their
appointments had become final on or before 28 th
November 2000. All the conditions in Kavita
Solunke, as enumerated in Paragraph 27, must be
met for any protection to be afforded to the person's
employment.
(iv) The Government Resolution dated 15th June 1995
holds the field only in relation to employee
appointed before the cut-off date mentioned therein
and to whom the same is otherwise applicable.
(v) The protection which can be extended to the
employees in terms of Clauses (iii) and (iv) above
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shall be only in relation to the post to which the
initial appointment is made.
36. Now we turn to the individual cases which were argued
before us. In Writ Petition No.8014 of 2012, the Petitioner was
appointed on a post reserved for Scheduled Tribe on the basis of his
claim that he belongs to "Koli Mahadeo", a Scheduled Tribe. There is
an affidavit containing undertaking filed by the Petitioner affirmed on
27th June 2013 stating that the Petitioner will not claim any benefit of
reservation on the footing that he belong to a Scheduled Tribe. The
order dated 3rd May 2013 specifically records the statement of the
Petitioner that he is giving up his claim that he belongs to Koli
Mahadeo, a Scheduled Tribe. The appointment of the Petitioner cannot
be protected under the G.R dated 15 th June 1995. In view of what we
have held above, the Petitioner is disentitled to any protection.
37. As far as Writ Petition No.6323 of 2013 is concerned, the
Petitioner was claiming that he belongs to caste Halba, which is a
Scheduled Tribe. Initially, on 4th January 1996, the Petitioner was
appointed as a Data Entry Operator in the office of the Commissioner of
Central Excise. On 25th January 1999, the appointment of the Petitioner
was confirmed. Therefore, the Petitioner will be entitled to protection
wp-8014.12,6323,5196,11518,11740n5098.13
on the basis of the decision of the Apex Court in the case of Kavita
Solunke provided the Petitioner files an undertaking giving up her claim
that she belongs to Halba, a Scheduled Tribe. Moreover, the
employment of the Petitioner as of 28 th November 2000 will have to be
protected. However, the Petitioner will not get any protection as far as
her promotions, if any, on the posts reserved for Scheduled Tribes.
38. As far as Writ Petition No.5196 of 2013 is concerned, on
29th June 1998, the Petitioner was appointed as a Clerk in the office of
the Government Pleader, High Court, Mumbai, on a post reserved for
Scheduled Tribe on the basis of his claim that he belongs to the caste
"Dhangad". The order of this Court dated 24 th June 2013 records the
statement of the Petitioner that the Petitioner will file an undertaking
that he will not claim any benefit of reservation of Scheduled Tribe.
Thus, the Petitioner has accepted the impugned order of the Caste
Scrutiny Committee. Hence, the Petitioner is not entitled to any
protection.
39. As far as Writ Petition No.11518 of 2012 is concerned, the
appointment of the Petitioner was as a Clerk-cum-Typist with the
Respondent No.3 is of 13th October 1997. The Petitioner was appointed
on a post reserved for Scheduled Tribe on the basis of his claim that he
wp-8014.12,6323,5196,11518,11740n5098.13
belong to Koli Mahadeo, a Scheduled Tribe. Now his caste claim was
invalidated. In this Petition, there is no statement made by the
Petitioner that he is accepting the order of the Scrutiny Committee. As
we have not heard the learned counsel appearing for the Petitioner on
merits of the order of the Caste Scrutiny Committee, we are not
passing any final order in this Petition.
40. As far as Writ Petition No.11740 of 2012 is concerned, in
this case, the Petitioner was appointed on 30 th December 1999 on a post
reserved for scheduled tribes on the footing that he belongs to Koli
Mahadeo, a Scheduled Tribe. Even in this case, there is no statement
made by the Petitioner that he was accepting the order of the Caste
Scrutiny Committee by which his caste claim was invalidated. We are,
therefore, not passing any final order in this Petition.
41. As far as Writ Petition No.5098 of 2013 is concerned, the
Petitioner has stated that on 12 th April 1990, he was appointed as
Kamgar Talathi after his selection through the Regional Selection
Committee. The Petitioner claimed that he belongs to Koli Mahadeo, a
Scheduled Tribe. As stated earlier, the caste claim of the Petitioner that
he belongs to Koli Mahadeo has been negatived. By filing an
undertaking dated 4th August 2013, the Petitioner has given up his caste
wp-8014.12,6323,5196,11518,11740n5098.13
claim that he belongs to Koli Mahadeo, a Scheduled Tribe. He has also
given an undertaking that he will not claim any benefit on the basis of
his caste claim that he belongs to Koli Mahadeo, a Scheduled Tribe.
The employment of the Petitioner will have to be protected in view of
the G.R dated 15th June 1995.
42. Hence, in the light of what we have already held in
Paragraph 35 above, we pass the following order.
ORDER :
(a) Writ Petition No.8014 of 2012 is rejected. If the
Petitioner is still in the employment as of today, his
employment shall not be terminated for a period of
three months from today;
(b) The impugned order dated 6th June 2013 in Writ
Petition No.6323 of 2013 is upheld. However, the
employment of the Petitioner on the post held by
her on 28th November 2000 shall not be disturbed
only on the ground of her failure to produce caste
validity certificate subject to condition that the
Petitioner shall file an undertaking to this Court
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within a period of four weeks from today stating
that she has given up her claim that she belongs to
Halba, a Scheduled Tribe and she will not claim any
benefit on the basis of such caste claim. However,
we make it clear that if the Petitioner is promoted to
any post reserved for the scheduled tribes after 28 th
November 2000, the Petitioner will be disentitled to
protection as far as the said promotional posts are
concerned;
(c) As far as Writ Petition No.11518 of 2012 and Writ
Petition No.11740 of 2012 are concerned, the same
shall be separated as the orders impugned will have
to be examined on merits. Ad-interim relief granted
therein will continue to operate for a period of six
weeks;
(d) As far as Writ Petition No.5196 of 2013 is
concerned, the same stands dismissed. However,
the ad-interim relief granted on 24 th June 2013 shall
continue to operate for a period of three months
from today;
wp-8014.12,6323,5196,11518,11740n5098.13
(e) As far as Writ Petition No.5098 of 2013 is
concerned, the impugned order dated 15th February
2013 is hereby confirmed. The undertaking of the
Petitioner dated 4th August 2013 is hereby accepted.
In view of the said undertaking, the employment of
the Petitioner on the post held by him as of 28 th
November 2000 shall stand protected and shall not
be terminated only on the ground of his failure to
produce the caste validity certificate. We make it
clear that if the Petitioner has been promoted to any
promotional post which was reserved for the
scheduled tribes, the Petitioner will not be entitled
to protection of the said post ;
(f) Except Writ Petition Nos.11518 of 2012 and Writ
Petition No.11740 of 2012, the other Petitions are
disposed of. The said two Petitions shall be placed
before the appropriate Court for admission.
( G.S. PATEL, J) ( A.S. OKA, J )
