Chairman and Managing Director, Food Corporation of India and Ors Vs. Jagdish Balaram Bahira and Ors
[Civil Appeal No 8928 of 2015]
[C. A. No.9155/2015]
[C. A. No.9157/2015]
[C. A. No.9160/2015]
[C. A. Nos.9203-9204/2015]
[C. A. No.8926/2015]
[C. A. No.1918/2010]
[C. A. No.9154/2015]
[C. A. Nos. 9158-9159/2015]
[C. A. Nos.8604-05/2017 @ SLP(C) Nos.33864-33865/2015]
[C. A. No.8601/2017 @ SLP(C) No.289/2016]
[C. A. Nos.8602-03/2017 @ SLP(C) Nos.529-530/2016]
[C. A. No.8607/2017 @ SLP(C) No.14830/2015]
[C. A. No.8609/2017 @ SLP(C) No. 13409/2015]
[C. A. No.8606/2017 @ SLP(C) No.19992/2015]
[C. A. No. 9107/2015]
[C. A. No. 7187/2013]
[C. A. No.8598/2017 @ SLP(C) No.18925/2014]
[C. A. No.8597/2017 @ SLP(C) No.16852/2016]
[C .A. Nos.8599-8600/2017 @ SLP(C) Nos.29388-29389/2016]
[C. A. No.8610/2017 @ SLP(C) No.2299/2017]
[C.A. No.8608/2017 @ S.L.P.(C)...CC No.10889/2015]
Dr D Y CHANDRACHUD, J
1. Delay condoned in SLP (C)......CC No.10889/2015.
2. Leave granted in the Special Leave Petitions.
A The perspective
3. The framers of the Constitution conceived of a policy of affirmative action to redress the social exclusion, economic deprivation and political alienation suffered by historically disadvantaged classes of Indian society. Reservation of posts in public employment and seats for admission in educational institutions and the setting apart of seats in electoral bodies was envisaged by the Constitution for the fulfilment of a constitutional aspiration of social justice to the Scheduled Castes and Tribes and to socially and educationally backward classes of citizens.
In pursuit of the constitutional goal of substantive equality, reservations have been envisaged as a means of enabling members of beneficiary groups to realise, in a true sense, dignity, freedom and liberty which the Constitution guarantees as its basic philosophy. But the problem which has PART A confronted legislatures, policy makers as well as courts (as enforcers of the rule of law) is a capture of the benefits of affirmative action programmes by persons who do not genuinely belong to the beneficiary groups. This kind of capture poses a serious dimension. When a person who does not belong to a caste, tribe or class for whom reservation is meant, seeks to pass off as its member, such a stratagem constitutes a fraud on the Constitution.
For one thing a person who is disentitled to the benefit of a welfare measure obtains the benefit. For another this deprives a beneficiary who is genuinely entitled to receive those benefits of a legitimate entitlement. This constitutes an egregious constitutional fraud. It is a fraud on the statutes which implement the provisions of the Constitution. It is a fraud on state policy. Confronted with this problem, the legislatures have intervened with statutory instruments while the executive has, in implementation of law, set down administrative parameters and guidelines to prevent the usurpation of benefits.
4 The batch of cases with which the court is confronted involves individuals who sought the benefit of public employment on the basis of a claim to belong to a beneficiary group which has, upon investigation been found to be invalid. Despite the invalidation of the claim to belong to a Scheduled Caste or, as the case may be, a Scheduled Tribe or backward community, the intervention of the Court is invoked in the exercise of the power of judicial review.
The basis for the invocation of jurisdiction lies in an assertion that equities arise upon a lapse of time and these equities are capable of being protected either by the High Court (in the exercise of its jurisdiction under Article 226) or by this Court (when it discharges the constitutional function of doing complete justice under Article 3 PART A 142).
The present batch of cases then raises the fundamental issue as to whether such equities are sustainable at law and, if so, the limits that define the jurisdiction of the court to protect individuals who have secured access to the benefit of reservation inspite of the fact that they do not belong to the caste, tribe or class for whom reservation is intended. 5 A large body of precedent has evolved both in the High Courts as well as in this Court in seeking to find answers to pleas raised by individuals that they are entitled to protection by a constitutional court, even after the invalidation of their caste or tribe claims.
The decided cases reflect a profound awareness on the part of courts of the human element involved. Assessment of human consequences case by case has resulted in a conflicting line of approach, in the effort of the court to balance the letter of law with a sense of compassion. Since this Bench of three Judges is called upon to seek a median, through the body of judicial precedent, it is, at the outset, necessary to set out the fundamental values and vision which the court must pursue. Those values as well as the vision is charted out to the court by the Constitution and it is the Constitution which the court expounds. The constitutional policy of creating reservations subserves a high constitutional value of providing social redress and a life of dignity to castes, tribes and classes which were in a historical sense oppressed by a systemic pattern of social exclusion and human deprivation.
The benefits which the Constitution has conferred on beneficiary groups cannot be dissipated by allowing others who do not belong to the designated castes or tribes to secure the benefit. Public employment is a significant source of social mobility. Access to education 4 PART A opens the doors to secure futures. As a matter of principle, in the exercise of its constitutional jurisdiction, the court must weigh against an interpretation which will protect unjust claims over the just, fraud over legality and expediency over principle.
As the nation evolves, the role of the court must be as an institution which abides by constitutional principle, enforces the rule of law and reaffirms the belief that claims based upon fraud, expediency and subterfuge will not be recognised. Once these parameters are established with a clear judicial formulation individual cases should pose no problem. Usurpation of constitutional benefits by persons who are not entitled to them must be answered by the court in the only way permissible for an institution which has to uphold the rule of law. Unless the courts were to do so, it would leave open a path of incentives for claims based on fraud to survive legal gambits and the creativity of the disingenuous.
B The regulatory regime : Madhuri Patil 6 On 24 February 1981, the Government of Maharashtra issued a G.R. which prescribed the procedure for obtaining (i)caste certificates from the Sub-divisional Officers; and (ii) validity certificates from a Scrutiny Committee. 7 In 1994, the systemic usurpation of benefits by persons who did not belong to the beneficiary groups came to the fore before this Court. There was before this Court, an urgent need expressed to set down a framework to regulate the grant of caste certificates and to scrutinise claims. The need for scrutiny and 5 PART A verification of caste claims was addressed in a judgment of this Court, speaking through a bench of two judges, in Kumari Madhuri Patil Vs. Additional Commissioner, Tribal Development
1. The judgment was delivered on 2 September 1994. While emphasizing the need to ensure that claims to belong to a beneficiary group must be carefully scrutinized, this Court observed thus : "...13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate.
The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquires by the Scrutiny Committee...." (Id. at p. 254) 8 Detailed guidelines were formulated in the judgment of this Court for the constitution of committees by the State Governments for scrutinizing claims of candidates to belong to a Scheduled caste or tribe or, as the case may be, to a backward community designated for reservations. The directions issued by this Court envisaged the constitution of Vigilance Cells which would conduct local enquiries to determine the authenticity of a claim to belong to a designated caste or tribe. The court, among other things, issued the following directions :
"13......(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 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; 1 (1994) 6 SCC 241 6 PART A (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." (Id. at p. 256-257) C The Halba / Halbi controversy 9 The Constitution (Scheduled Castes) Order 1950 and the Constitution (Scheduled Tribes) Order 1950 provide in relation to each State a list of Scheduled Castes and Scheduled Tribes for the purpose of constitutional reservations. In the list of Scheduled Tribes for the State of Maharashtra, Entry 19 is : "Halba, Halbi" 10 In the State of Maharashtra, the ambit of Entry 19 became a bone of contention particularly with persons belonging to the Halba-Koshti community claiming to be a sub-tribe of the designated tribe.
A Division Bench of the High Court spoke on the issue on 4 September 1985 in Milind Sharad Katware Vs. State of Maharashtra 2. The Division Bench held that Halba-Koshti constituted a sub-division of the tribe "Halba-Halbi" under Entry 19 of the Scheduled Tribes Order, 1950. Halba-Koshtis were, in the view of the Division Bench, entitled to the status of a Scheduled Tribe on the ground that they were comprehended within a designated tribe namely, Halba-Halbi. In coming to this conclusion, the Division Bench opined that it is permissible to enquire whether a sub-division of a tribe 2 (1986) 1 Bom CR 403 7 PART A which is not mentioned in the Scheduled Tribes Order, 1950 is nevertheless a part and parcel of a tribe which is designated. 11 Upon a challenge by the State of Maharashtra before this Court, the issue was referred to a Constitution Bench and eventually resulted in the judgment in State of Maharashtra Vs. Milind
3. The Constitution Bench held that the Scheduled Tribes Order had to be read as it is; and no evidence could be let in to urge that a tribe or tribal community or its part constituted a part of a tribe which was specifically designated. In other words :
"36...
(1). It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950.
(2). The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it.
(3). A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by no other authority.
(4). It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342." (Id at p. 30-31) The judgment of the Bombay High Court holding that Halba-Koshti formed a part of the designated scheduled tribe, Halba-Halbi was reversed. The declaration of 3 (2001) 1 SCC 4 8 PART A law by this Court under Article 141, negated the position of law enunciated by the Bombay High Court. This was, it must be emphasised, not a case of prospective over-ruling.
The Constitution Bench in Milind dwelt on the dangers in allowing benefits which are reserved to designated castes and tribes being usurped by individuals who do not belong to them. Allowing the benefits which are reserved by Presidential orders issued under Articles 341 and 342 to be usurped by an imposter would negate the purpose of the reservation. This was succinctly emphasized in the following observations of the Constitution Bench :
"35....The Presidential Orders are issued under Articles 341 and 342 of the Constitution recognizing and identifying the needy and deserving people belonging to Scheduled Castes and Scheduled Tribes mentioned therein for the constitutional purpose of availing benefits of reservation in the matters of admissions and employment. If these benefits are taken away by those for whom they are not meant, the people for whom they are really meant or intended will be deprived of the same and their sufferings will continue.
Allowing the candidates not belonging to Scheduled tribes to have the benefits or advantage of reservation either in admissions or appointments leads to making mockery of the very reservation against the mandate and the scheme of the Constitution." (id. at p. 30) 13 Milind Sharad Katware whose cause had travelled from the Bombay High Court in 1985 to this Court had, by the time that the Constitution Bench resolved the issue on 28 November 2000 qualified as a doctor. He claimed the benefit of equities which had intervened in the meantime.
They were recognized in the ultimate directions which were issued by this Court in the following observations : "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 9 PART A completed the course and may be he is practicing 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 the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect the degree obtained by him and his practicing as a doctor. But we make it clear that he cannot claim to belong to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words, he cannot take advantage of the Scheduled Tribes Order any further or for any other constitutional purpose.
Having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No. 16372 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." (Id. at p. 31) The latter part of the above extract covered other cases before the court. Reading these observations there can be no manner of doubt that this Court took recourse to its constitutional power under Article 142 to protect benefits which had accrued to a candidate who had qualified as a doctor though with the caveat that he would not be entitled to claim the status of belonging to a Scheduled tribe in the future.
The latter part protected, having regard to the passage of time and interim orders passed in the batch of cases, appointments and admissions which had become final. These directions were evidently under Article 142 of the Constitution. D The legislation in Maharashtra 14 The legislature in the State of Maharashtra enacted the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category 10 PART A (Regulation of Issuance and Verification of) Caste Certificate Act, 2000. The legislation essentially takes care, for that state of the concerns that were expressed in the decision of this Court in Madhuri Patil by providing a statutory framework to regulate the issuance of caste certificates, scrutiny and verification of claims and the consequences to ensue upon the invalidation of a claim.
The legislation received the assent of the President and was published in the gazette on 23 May 2001. By a notification dated 17 October 2001, the Act came into force from 18 October 2001, in terms of Section 1(2). Section 3 requires every person claiming to belong to a Scheduled caste or tribe, other backward class or any other designated tribe or community seeking to obtain public employment or an admission to an educational institution or contesting an electoral seat in a local authority or a co-operative society to apply for the issuance of a caste certificate to a competent authority named by the State Government. Section 4 empowers the competent authority to issue a caste certificate upon being satisfied of the genuineness of the claim.
Section 6 requires the State Government to constitute Scrutiny Committees for the verification of caste certificates issued by the competent authorities constituted under Section 4(1). Sub-Section (2) of Section 6 requires the beneficiary of a caste certificate to submit an application to a Scrutiny Committee for the verification of the caste certificate and for issuance of a validity certificate. The appointing authority is similarly required by sub-Section (3) to make an application to the Scrutiny Committee to verify the caste certificate. Section 6 provides thus :
"6.
(1) The Government shall constitute by notification in the official Gazette, one or more Scrutiny Committee(s) for verification of Caste Certificates issued by the Competent Authorities under sub-section (1) of section 4 specifying in the said notification the functions and the 11 PART A area of jurisdiction of each of such Scrutiny Committee or Committees.
(2) After obtaining the Caste Certificate from the Competent Authority, any person desirous of availing of the benefits or concessions provided to the Scheduled Castes, Scheduled Tribes, De-notified Tribe (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for the purposes mentioned in section 3 may make an application, well in time, in such form and in such manner as may be prescribed, to the concerned Scrutiny Committee for the verification of such Caste Certificate and issue of a validity certificate.
(3) The appointing authority of the Central or State Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions shall, make an application in such form and in such manner as may be prescribed by the Scrutiny Committees for the verification of the Caste Certificate and issue of a validity certificate, in case a person selected for an appointment with the Government, local authority, public sector undertakings, educational institutions, Co-operative societies or any other Government aided institutions who has not obtain such certificate.
(4) The Scrutiny Committee shall follow such procedure for verification of the Caste Certificate and adhere to the time limit for verification and grant of validity certificate, as prescribed." Section 7 provides for the confiscation and cancellation of "false certificates". Section 7 is in the following terms :
"7.
(1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any
(2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or court except the High Court under Article 226 of the Constitution of India." 12 PART A Section 8 relates to the burden of proof and envisages that in any application for the issuance of a caste certificate by the competent authority; in any enquiry conducted by the competent authority or Scrutiny Committee or appellate authority; and in the trial of any offence under the Act, the burden of proving that the person belongs to such caste, tribe or class shall be on the claimant - applicant.
Section 10 provides for the consequence of the invalidation of a caste certificate and 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 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.
(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 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 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 13 PART A 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." Section 11 deals with offences and penalties and provides thus :
"11.(1) Whoever, -
(a) obtains a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means ; or
(b) 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 any benefits or appointments exclusively reserved for such Castes, Tribes, or Classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Co-operative Society against the office, reserved for such Castes Tribes or Classes by producing a false Caste Certificate; Shall, on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees or both.
(2) No court shall take cognizance of an offence punishable under this section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorized by the Scrutiny Committee for this purpose." Offences punishable under Section 11 have been made cognizable and non bailable under Section 12. Section 13 imposes criminal penalties upon a person discharging the functions of a competent authority who intentionally issues a false caste certificate. 14 PART A 15 Legislative intervention in the State of Maharashtra by the enactment of 2000 puts into place a statutory framework covering the area from the issuance of caste / tribe certificates and traversing the scrutiny and verification of caste / tribe claims and withdrawal of benefits accruing upon a false claim. Stringent penalties are provided against violators by creating a regime of criminal offences which are punishable at law.
An application for a caste certificate is required to be made to a designated authority constituted by the State Government. The competent authority has to be satisfied about the genuineness of the claim before it issues a caste certificate. Issuance of a caste certificate does not in itself conclude the level of scrutiny. The next stage of scrutiny is contemplated before the Scrutiny Committee which is conferred with a statutory status by the provisions of the Act.
Section 6 mandates in sub-section (2) that a person who desires to avail of a benefit or concession provided to a designated caste, tribe or class must make an application well in time to the Scrutiny Committee for verification of the caste certificate and for the issuance of a validity certificate. Not only this, the appointing authority is obligated to move the Scrutiny Committee to conduct a verification of the caste certificate of a person who has been selected for appointment. Section 7 empowers the Scrutiny Committee either suo motu or otherwise to enquire into the correctness of a caste certificate and, if it is of the opinion that the certificate was obtained fraudulently, it shall cancel and confiscate it after furnishing a reasonable opportunity to be heard. Section 7 operates in respect of all caste certificates whether obtained before or after the 15 PART A commencement of the Act.
If a caste certificate has been obtained falsely by a person either claiming himself or his children to belong to a designated caste, tribe or class, the Scrutiny Committee is empowered to cancel it upon an opinion formed that it was obtained fraudulently. The fact that a person belongs to a designated caste, tribe or class is based on facts which are to the knowledge of the applicant and hence the burden of proof is placed on the claimant by Section 8.
16 The state legislature was evidently not content with a mere invalidation of a caste certificate which is founded on a false claim made by a candidate to belong to a designated caste, tribe or class. Section 6 (2) provides that a candidate who desires to obtain a benefit must apply well in time to the Scrutiny Committee for verification and similarly the appointing authority of a candidate who has been selected for appointment but has not obtained a validity certificate must apply to the Scrutiny Committee for verification. The legislature however was cognizant of the fact that by the time a scrutiny takes place before the Scrutiny Committee the candidate may have obtained the benefit of a concession reserved for a caste, tribe or class. As a matter of public interest, the legislation stipulates that the benefits which have been obtained on the basis of a false caste certificate shall be withdrawn upon the invalidation of the claim by the Scrutiny Committee.
The ambit of Section 10 (1) extends, among other things, to an admission which is secured in an educational institution against a seat reserved for one of the designated castes, tribes or classes; an appointment in the government, local authority or corporation owned or controlled by the government or any government institution or co-operative society against a reserved post. A benefit 16 PART A which is obtained on the foundation of a false caste claim which has been invalidated is not permitted to be retained by the candidate. There is a legislative mandate that the benefit of an admission granted or an appointment to a post shall be withdrawn forthwith on the cancellation of a caste / tribe certificate.
Any amount which is paid by way of scholarship, grant, allowance or financial benefits has to be recovered as arrears of land revenue. Sub-Section (3) of Section 10 contains a non-obstante provision as a result of which notwithstanding anything contained in any Act for the time being in force a degree, diploma or educational qualification acquired by a person after securing admission on the basis of a caste certificate which is proved to be false and is cancelled would also be invalid. Similarly, by sub-Section (4) a disqualification from holding an electoral office has been stipulated where a person has contested an election on the basis of a false caste certificate which is since cancelled by the Scrutiny Committee. To ensure that the stringent provisions made by it impose a sufficient deterrent, the legislature considered it fit in its wisdom to create offences and to impose criminal penalties in Section 11. 17 The consequences which emanate from the cancellation of a caste certificate are distinct.
The first is the withdrawal of benefits secured on the basis of a claim to belong to a designated tribe, group or class which has been held to be invalid. This is of a civil nature by which the applicant is deprived of the benefits of a false caste certificate which is cancelled by the Scrutiny Committee. The second consequence is the liability to be subject to a criminal prosecution. This is a criminal liability arising from an offence created by the legislature.
PART A E Precedent 18 Several decisions of this Court have considered whether a person who has secured the benefit of public employment or admission to an educational institution on a reserved quota is entitled to retain the benefits obtained despite the invalidation of the claim to belong to the tribe or caste. In all such cases, equities are pressed in aid, chief among them being the lapse of time since the acquisition of benefits on the basis of a claim to belong to a designated caste or tribe.
As decided cases indicate, the claim for equity is coupled with a "voluntary" undertaking that the person would not secure or claim any future benefits on the basis that he or she belongs to the Scheduled Caste, Schedule Tribe or socially and educationally backward class on the basis of which the original appointment or admission was obtained. In the case of admissions to educational institutions, particularly institutions of higher learning, the additional ground which is often urged is that the withdrawal of benefits obtained in the past would amount to a societal loss since scarce productive resources of the nation are invested in providing for training and education to professionals in a discipline such as medicine.
19 In Madhuri Patil (supra), a Bench of two learned Judges set down a principled rationale as to why a claim for equity by a person who is not found to belong to the designated caste, tribe or class cannot be countenanced.
The Court observed : 18 PART A "16. Whether appellants are entitled to their further continuance in the studies is the further question. Often the plea of equities or promissory estoppel would be put forth for continuance and completion of further course of studies and usually would be found favour with the courts. The courts have constitutional duty and responsibility, in exercise of the power of its judicial review, to see that constitutional goals set down in the Preamble, the Fundamental Rights and the Directive Principles of the Constitution, are achieved. A party that seeks equity, must come with clean hands. He who comes to the court with false claim, cannot plead equity nor the court would be justified to exercise equity jurisdiction in his favour.
There is no estoppel as no promise of the social status is made by the State when a false plea was put forth for the social status recognised and declared by the Presidential Order under the Constitution as amended by the SC & ST (Amendment) Act, 1976, which is later found to be false. Therefore, the plea of promissory estoppel or equity have no application. When it is found to be a case of fraud played by the concerned, no sympathy and equitable considerations can come to his rescue. Nor the plea of estoppel is germane to the beneficial constitutional concessions and opportunities given to the genuine tribes or castes.
Courts would be circumspect and wary in considering such cases." (Id. at p. 257) However, on the facts of that case the Bench of two Judges while upholding the cancellation of the status of Mahadeo Koli which was fraudulently obtained, directed that the student who had completed the course of medical studies be allowed to appear for the final year examination of the M.B.B.S. degree course but not as a candidate belonging to a Scheduled Tribe. The circumstance which weighed with the Court was that the student had approached the High Court for the grant of a caste certificate since the Additional Commissioner was not dealing with the matter. The student obtained admission pursuant to a direction of the High Court.
It was the parents of the student who had put the career of the student in jeopardy and since she had completed her course of study except to appear for the examination; she should be permitted to do so. The above 19 PART A directions were issued in the case of one of the two appellants, Suchita Laxman Patil. However, her sister Madhuri (who was the first appellant) was found to have approached an officer without jurisdiction and after showing the order of the High Court in the case of her sister Suchita, secured a caste certificate and got admission.
This Court observed that though she was in the midst of her B.D.S. studies in the second year, she could not continue as a student belonging to Mahadeo Koli Scheduled Tribe. She could only obtain admission as a general candidate and continue her studies. These directions are referable to the jurisdiction conferred on this Court under Article 142. 20 The next decision which is of relevance on the issue, is a judgment of three Judges of this Court in R. Vishwanatha Pillai Vs. State of Kerala 4. In that case the appellant who did not belong to a designated reserved community obtained a caste certificate and was selected as a Deputy Superintendent of Police on a seat reserved for the Scheduled Castes.
However, it was found upon a complaint that the appellant did not belong to a Scheduled Caste and the Scrutiny Committee rejected his claim. The order of the Scrutiny Committee was upheld by the High Court and by this Court. Subsequently at the behest of the appellant the Central Administrative Tribunal directed that he should not be terminated from service without following the procedure under Article 311. The High Court reversed that decision and the appellant was dismissed from service. Before this Court the appellant inter alia sought protection since he had rendered nearly 27 years of service. Rejecting the submission this Court held that : 4 (2004) 2 SCC 105 20 PART A "15.
This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution.
As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India, Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post.
Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India, As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all." (Id. at p. 115)
(emphasis suppled)
The Bench of three Judges also rejected the submission that since the appellant had rendered 27 years of service, the order of dismissal should be substituted with an order of compulsory retirement or removal to protect his pensionary benefits. The Court observed : "19.....The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment.
The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained 21 PART A fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who, seeks equity must come with clean hands.
He. who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud." (Id. at p. 116) 21 In Bank of India Vs. Avinash D. Mandivikar 5 the first respondent obtained an appointment in the service of the bank in October 1976 on a post reserved for the Scheduled Tribes.
The Scrutiny Committee found that he did not belong to a Scheduled Tribe and, therefore, invalidated the caste certificate. Following the termination of his services the first respondent moved the High Court which accepted his plea that the initiation of proceedings against him by the Scrutiny Committee for verification of the caste certificate in 1987 was beyond a reasonable period.
The High Court, while allowing the plea, reinstated him in service with back-wages. In an appeal by the employer, this Court held that once a claim of the employee to belong to a Scheduled Tribe had been rejected, the employment was "no appointment in eye of law" and that he had "absolutely no justification for his claim" in respect of the post he usurped. Distinguishing the directions issued in Milind (under Article 142), this Court held that : "10.The protection under the Milind's case (supra) cannot be extended to the respondent No. 1-employee as the protection was given under the peculiar factual background of that case.
The employee concerned was a 5 (2005) 7 SCC 690 22 PART A doctor and had rendered long years of service. This Court noted that on a doctor public money has been spent and, therefore, it will not be desirable to deprive the society of a doctor's service. Respondent No. 1-employee in the present case is a bank employee and the factor which weighed with this Court cannot be applied to him." (Id. at p. 698) The above observations of the court are also an indication that para 38 of the decision in Milind was construed as consisting of directions issued under Article 142.
For it was on that basis that the court in Avinash Mandivikar held that no case was made out for protecting the services of a bank employee who had obtained employment on the basis of a false claim. Besides, this Court also held that the first respondent having perpetrated a fraud, a claim for protection will not be legally sustainable and a person who had obtained employment by illegitimate means could not continue to enjoy the fruits of the appointment despite the clear finding by the Scrutiny Committee that "he does not even have a shadow of a right even to be considered for appointment". This Court relied upon the earlier decision in Vishwanatha Pillai (supra) in coming to its conclusion.
Another decision of two learned Judges was in Additional General Manager/Human Resources, Bharat Heavy Electricals Ltd. Vs. Suresh Ramakrishna Burde 6 where a Division Bench of the Bombay High Court had ordered reinstatement subject to the condition that the employee would not stake a claim to belong to the Scheduled Tribe in future. The claim of the employee to belong to the Halba Scheduled Tribe was invalidated by the Scrutiny Committee. The employee had been appointed in May 1982 to a clerical post and in August 6 (2007) 5 SCC 336 23 PART A 1995 the Scrutiny Committee had invalidated the caste claim initially and again in August 2001 following an order of remand.
A Writ Petition filed against the order of invalidation was withdrawn but thereafter, relying on the observations in the concluding paragraph in Milind (supra) the employee submitted a representation for the protection of his services. After the representation was rejected, the employee moved the High Court which directed his reinstatement but with the condition that he would not claim the benefit of belonging to a Schedule Caste in future. While construing the decision in Milind (supra) (upon which the High Court had placed reliance), this Court observed as follows :
"7. The High Court has granted relief to the respondent and has directed his reinstatement only on the basis of the Constitution Bench decision of this Court in State of Maharashtra v. Milind (2001) 1 SCC 4. In our opinion the said judgment does not lay down any such principle of law that where a person secures an appointment by producing a false caste certificate, his services can be protected and an order of reinstatement can be passed if he gives an undertaking that in future he and his family members shall not take any advantage of being member of a caste which is in reserved category.
The questions which required consideration by the Constitution Bench, are noted in the very first paragraph of the judgment and they are being reproduced below: 1) Whether at all, it is permissible to hold enquiry and let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950? 2) Whether 'Halba Koshti' caste is a sub-tribe within the meaning of Entry 19 (Halba/Halbi) of the said Scheduled Tribes Order relating to State of Maharashtra, even though it is not specifically mentioned as such?
8. After thorough discussion of the matter the conclusions of the Bench are recorded in paragraph 36 of the report. It was held that it is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950. It was further held that the notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament and it is not open to the State Governments or courts or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued 24 PART A under Clause (1) of Article 342 and the Constitution (Scheduled Tribes) Order 1950.
The law declared by the Constitution Bench does not at all lay down that where a person secures an appointment by producing a false caste certificate, his services can be protected on his giving an undertaking that in future he will not take any advantage of being a member of the reserved category." (Id. at p. 340-341) (emphasis supplied) In this view of the matter, the High Court was held to be in error in setting aside the order of termination and in directing reinstatement of the employee.
23 A Bench of two Judges of this Court in State of Maharashtra Vs. Sanjay K. Nimje 7 considered a case where the respondent had been appointed to the service of the state in June 1995 on a claim that he belonged to the Halba Scheduled Tribe. The Scrutiny Committee upon verifying the caste certificate found in its order of August 1989 that the employee was a Koshti (a Special Backward Class) and not a Halba. The respondent accepted the findings of the Scrutiny Committee but on the basis of a Government Resolution dated 15 June 1995 sought the protection of his service.
This Court noted that on 7 December 1994 Koshtis were declared to be a Special Backward Class. As regards the G.R. dated 15 June 1995, this Court came to the conclusion that since the respondent was appointed on 29 June 1995, which was after the G.R., he was not entitled to protection in terms thereof. Moreover, adverting to Section 10 of the Act enacted by the Maharashtra state legislature, this Court observed that : "16. The 2000 Act being a legislative Act would prevail over any government resolution. A government resolution may be beneficent in nature but it is well settled that a benefit under a government resolution cannot be extended to a person who does not satisfy the conditions precedent thereof.
In any event, 7 (2007) 14 SCC 481 25 PART A the effect of the judgment of this Court as also the provisions of a statute in the light of the constitutional provisions contained in Articles 341 and 342 of the Constitution of India cannot be diluted by reason of a government resolution or otherwise." (Id. at p. 487) (emphasis supplied) In the view of this Court : "18. We may also notice that ordinarily a person, who has obtained appointment on the basis of a false certificate, cannot retain the said benefit. (See Bank of India v. Avinash D. Mandivikar [(2005) 7 SCC 690 : 2005 SCC (L&S) 1011] , Ram Saran v. IG of Police, CRPF [(2006) 2 SCC 541 : 2006 SCC (L&S) 351 : (2006) 2 Scale 131] and Supdt. of Post Offices v. R. Valasina Babu [(2007) 2 SCC 335] .)
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 : (2006) 8 Scale 503] ." (Id. at p. 487) Finally this Court held that the provisions of Maharashtra Act XXIII of 2001 must apply. Though at one point in time indulgence had been shown to students or to persons who were found to have acted bona fide this "would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative act". 24 The position in law was reaffirmed in a subsequent decision of a Bench of three Judges in Union of India Vs. Dattatray 8.
The respondent was appointed as an Assistant Professor of Psychiatry in a government hospital on the strength of a claim to belong to a Scheduled Tribe. The Scrutiny Committee in an order of March 1999 found that the claim that he belonged to the Halba Tribe was false. 8 (2008) 4 SCC 612 26 PART A The High Court upheld the invalidation of the tribe claim but held that the respondent would not be entitled to any benefit as a member of the Scheduled Tribe from the date of its decision. In consequence, the services of the respondent were directed not to be disturbed.
This Court held that the High Court had misconstrued the decision of the Constitution Bench in Milind (supra) and adverted to the peculiar circumstances in which protection was granted in that case to a student who had been admitted to a medical course over 15 years ago. Distinguishing that decision with the case at hand this Court observed that : "5...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." (Id at p. 614)
(emphasis supplied)
The judgment of the High Court directing the continuance of the first respondent in service was accordingly set aside. 25 In Yogesh Ramchandra Naikwadi Vs. The State of Maharashtra 9, the direction contained in paragraph 38 of the decision of the Constitution Bench in Milind (supra) for protecting a student who had completed his medical studies, when nearly 15 years had elapsed, was held to be referable to the power conferred upon by this Court by Article 142 of the Constitution.
This Court observed : 9 (2008) 5 SCC 652 27 PART A "7. There may however be cases where it will not be proper to permit the student to retain the degree obtained by making a false claim. One example is where the candidates secure seats by producing forged or fake caste certificates. There may be cases, where knowing full well that they do not belong to a Scheduled Tribe/Caste, candidates may make a false claim that they belong to a Scheduled Tribe/Caste.
There may also be cases where even before the date of admission, the caste certificates of the candidates might have been invalidated on verification by the Scrutiny Committee. There may be cases where the admissions may be in pursuance of interim orders granted by courts subject to final decision, making it clear that the candidate will not be entitled to claim any equities by reason of the admission. The benefit extended in Milind [(2001) 1 SCC 4 : 2001 SCC (L&S) 117] and Vishwanatha Pillai [(2004) 2 SCC 105 : 2004 SCC (L&S) 350] cannot obviously be extended uniformly to all such cases.
Each case may have to be considered on its own merits. Further what has precedential value is the ratio decidendi of the decision and not the direction issued while moulding the relief in exercise of power under Article 142 on the special facts and circumstances of a case. We are therefore of the view that Milind [(2001) 1 SCC 4 : 2001 SCC (L&S) 117] and Vishwanatha Pillai [(2004) 2 SCC 105 : 2004 SCC (L&S) 350] cannot be considered as laying down a proposition that in every case where a candidate's caste claim is rejected by a Caste Verification Committee, the candidate should invariably be permitted to retain the benefit of the admission and the consequential degree, irrespective of the facts." (Id at p. 654)
(emphasis supplied)
In the case at hand, though the Scrutiny Committee had rejected the claim of the appellant even prior to his admission to the professional degree course in engineering, the High Court had directed by an interim order the grant of provisional admission. This Court observed that since the admission to an engineering course had been obtained nearly 13 years earlier and the candidate had already secured a degree, he should be permitted to retain the benefit of the degree subject to the condition that he would not claim any further benefit as a member of a Scheduled Tribe and any expenditure incurred in terms of an exemption from the fee or a grant of scholarship, would be recovered.
28 PART A The following decisions of this Court, the act of obtaining a benefit reserved for designated castes, tribes and classes by an individual who does not belong to the designated community, on the basis of a false caste claim has been held to constitute an egregious violation, even a fraud on the Constitution :
(i) In Anjan Kumar Vs. Union of India & Ors 10 this court held that: "14...A person not belonging to the Scheduled Castes or Scheduled Tribes claiming himself to be a member of such caste by procuring a bogus caste certificate is a fraud under the Constitution of India. The impact of procuring fake/bogus caste certificate and obtaining appointment/admission from the reserved quota will have far-reaching grave consequences.
The meritorious reserved candidate may be deprived of reserved category for whom the post is reserved. The reserved post will go into the hand of non-deserving candidate and in such cases it would be violative of the mandate of Articles 14 and 21 of the Constitution of India."
(ii) In State of Maharashtra & Ors. Vs. Ravi Prakash Babulalsing Parmar & Anr 11, this court observed thus : "23. The makers of the Constitution laid emphasis on equality amongst citizens. The Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community.
If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, 10 (2006) 3 SC 257 11 (2007) 1 SCC 80 29 PART A he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter."
(iii) Similar observations are contained in the judgment of this court in Regional Manager, Central Bank Vs. Madhulika Guru Prasad Dahir 12: "13...It would suffice to state that except in a few decisions, where the admission/appointment was not cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate.
A person who enters the service by producing a false caste certificate and obtains appointment for the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour....."
We may now advert to a line of precedent, upon which reliance has been placed by the private party claimants, to indicate the circumstances in which recourse has been taken by this Court to its jurisdiction under Article 142. Sandip Subhash Parate Vs. State of Maharashtra 13, is a decision of a Bench of two Judges of this Court. The claim of the appellant to belong to the Halba 12 AIR (2008) SC 3266 13 (2006) 7 SCC 501 30 PART A Scheduled Tribe formed the basis of his admission to the B.E. degree course at the University of Pune. The claim was invalidated by the Scrutiny Committee. In a writ petition challenging the order of the Scrutiny Committee the appellant had the benefit of an interim order.
Eventually the Writ Petition was allowed and the proceedings were remanded to the Scrutiny Committee. The Scrutiny Committee on remand rejected the claim against which another writ petition was filed. Though no interim relief was granted in the writ petition the appellant was allowed to continue with his studies and he completed engineering studies in 2004. Both the Writ Petition and the Review Petition before the High Court were dismissed.
On these facts, the bench of two judges held that prima facie the case of the appellant indicated that he was under a bona fide belief that Koshti - Halbas were members of a Scheduled Tribe particularly since he had obtained admission prior to the decision in Milind (supra). Hence in the exercise of its jurisdiction under Article 142 the Bench observed that it did not find any lack of bona fides on his part. The decision then holds that : "15...We, in the peculiar facts and circumstances of this case, are not inclined to go into the question as regards purported commission of fraud by the appellant, particularly, when the University admitted him without any demur whatsoever. We are doing so having regard to the doctrine of proportionality. The appellant has suffered a lot.
He might not be entirely responsible therefor. He might have been under a bona fide belief that he comes within the purview of notified category. We, therefore, albeit with much reluctance accept the fervent and impassionate plan made by the learned counsel appearing for the appellant that he be allowed to obtain the degree. The same shall, however, be subject to payment of Rs 1 lakh in favour of the State of Maharashtra so as to recompense the State to some extent the amount spent on him for imparting education as a reserved category candidate." (Id at p. 507) 31 PART A 27
In Central Warehousing Corporation Vs. Jagdishkumar Vithalrao Panjankar 14, decided on 16 January 2007, a Bench of two Judges of this Court in the exercise of its jurisdiction under Article 142 protected the services of the respondent who had worked from 1984 on the strength of a claim to belong to the Halba Scheduled Tribe though it was found that he was a Koshti. A similar protection has been granted in State of Maharashtra Vs. Om Raj 15 by a Bench of two Judges where admission, or as the case may be, appointment to a service was obtained on the basis of a claim to belong to the Halba Scheduled Tribe though the individuals concerned were found to be Koshti.
The decision dealt with a batch of cases which were held to be covered by Milind. 28 The long tenure of an employee was pressed in aid in a judgment of a Bench of two Judges of this Court in Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar 16 as a ground for the exercise of the jurisdiction under Article 142. In that case the first respondent was, on the strength of a Scheduled Tribe certificate of August 1987, employed in the State Pollution Control Board and his status as a member of a Scheduled Tribe was confirmed in a decision of the High Court in August 1988.
The Scrutiny Committee, however, invalidated the claim of the respondent to belong to the Halba Scheduled Tribe. However, the High Court held that its earlier decision of August 1988 had attained finality and that the status of the first respondent could not be questioned again. This Court by its judgment held that when an advantage is obtained by a person in violation of the 14 C. A .No. 233 of 2007 15 (2007) 14 SCC 488 16 (2008) 9 SCC 54 32 PART A constitutional scheme a constitutional fraud is committed. The earlier decision of the High Court which was rendered without a factual foundation was held not to operate as res judicata.
However, since the Bombay High Court had allowed the writ petition filed by the respondent in 1988 and he had continued in service since long, recourse was taken to t
