STATE OF MAHARASHTRA vs. KU. NANDA
2019 Latest Caselaw 1179 SC

Before :- Uday Umesh Lalit and Vineet Saran, JJ.

Civil Appeal No. 9155 of 2019 (@ out of SLP (C) No.10853 of 2018). D/d. 2.12.2019.

State of Maharashtra & Anr. - Appellants

Versus

Ku. Nanda - Respondents

For the Appellants :- Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advocates.

For the Respondents :- Vinay Navare, Sr. Adv., Shubhada Phaltankar, T.R.B. Sivakumar, Advocates.

ORDER

Leave granted.

2. This appeal challenges the judgment and order dated 26.08.2016 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition N0o.3905 of 2000.

3. The respondent-employee claimed to be belonging to "Halba" which is a Scheduled Tribe for the State of Maharashtra. She later gave up the claim in view of the decision of this Court in State of Maharashtra v. Milind [(2001) 1 SCC 4) and all other consequential cases. It was submitted that her employment as Clerk-cum-Typist in the Irrigation Department which was given to her on 05.08.1998 be protected in keeping with said decision of this Court.

4. Relying on the decision of the Full Bench of the High Court in Arun Sonowane v. State of Maharashtra [2015 (1) Mh.L.J. 457], the Division Bench of the High Court concluded as under:

"5. We find that the present case is squarely covered by the law laid down by the Full Bench of this Court in the case of Arun s/o Vishwanath Sonone. The petition is, therefore, partly allowed. The respondents are directed not to terminate the services of the petitioner. The petitioner would be entitled to continuity in service. However, it is made clear that the petitioner would not be entitled to any of the benefits on the basis of her claim of belonging to Scheduled Tribe and she would be treated to be an open category candidate for all purposes."
5. Since then the issue whether such protection could be afforded to a person, whose caste claim stood either rejected or not accepted, came up for consideration before this Court in Chairman and Managing Direction of Food Corporation of India & Ors. v. Jagdish Balaram Bahira & Ors. [(2017) 8 SCC 670. This Court observed as under:

"56. Service under the Union and the States, or for that matter under the instrumentalities of the State subserves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demands and needs. Hence, the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong to a reserved category is selected. The fraud on the Constitution precisely lies in this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of imposters are not protected in the exercise of the jurisdiction under Article 142. The nation cannot live on a lie. Courts play a vital institutional role in preserving the rule of law. The judicial process should not be allowed to be utilised to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act 23 of 2001, the power under Article 142 should not be exercised to defeat legislative prescription. The Constitution Bench in State of Maharashtra v. Milind spoke on 28-11-2000. The State law has been enforced from 18-10-2001. Judicial directions must be consistent with law. Several decisions of two- Judge Benches noticed earlier, failed to take note of Maharashtra Act 23 of 2001. The directions which were issued under Article 142 were on the erroneous inarticulate premise that the area was unregulated by statute. Shalini v. English High School Assn., [(2013)16 SCC 526] noted the statute but misconstrued it.
.....
69. For these reasons, we hold and declare that:
69.1. The directions which were issued by the Constitution Bench of this Court in para 38 of the decision in Milind were in pursuance of the powers vested in this Court under Article 142 of the Constitution;
69.2. Since the decision of this Court in Madhuri Patil v. Commissioner, Tribal Development [(1994) 6 SCC 241] which was rendered on 2-9-1994, the regime which held the field in pursuance of those directions envisaged a detailed procedure for:
(a) the issuance of caste certificates;
(b) scrutiny and verification of caste and tribe claims by Scrutiny Committees to be constituted by the State Government;
(c) the procedure for the conduct of investigation into the authenticity of the claim;
(d) Cancellation and confiscation of the caste certificate where the claim is found to be false or not genuine;
(e) Withdrawal of benefits in terms of the termination of an appointment, cancellation of an admission to an educational institution or disqualification from an electoral office obtained on the basis that the candidate belongs to a reserved category; and
(f) Prosecution for a criminal offence.
69.3. The decisions of this Court in R. Vishwanatha Pillai v. State of Kerala [(2004) 2 SCC 105] and in Union of India v. Dattatray [(2008) 4 SCC 612] which were rendered by Benches of three Judges laid down the principle of law that where a benefit is secured by an individual-such as an appointment to a post or admission to an educational institution-on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est.
69.4. The exception to the above doctrine was in those cases where this Court exercised its power under Article 142 of the Constitution to render complete justice;
69.5. By Maharashtra Act 23 of 2001 there is a legislative codification of the broad principles enunciated in Madhuri Patil. The legislation provides a statutory framework for regulating the issuance of caste certificates (Section 4); constitution of Scrutiny Committees for verification of claims (Section 6); submission of applications for verification of caste certificates [Sections 6(2) and 6(3)]; cancellation of caste certificates (Section 7); burden of proof (Section 8); withdrawal of benefits obtained upon the invalidation of the claim (Section 10); and initiation of prosecution (Section 11), amongst other things;
69.6. The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect of caste certificates issued prior to and subsequent to the enforcement of the Act on 18-10-2001. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual to belong to a reserved caste, tribe or class is yet to be verified by the Scrutiny Committee;
69.7. Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;
69.8. The decisions in Kavita Solunke v. State of Maharashtra [(2012) 8 SCC 430] and Shalini of two learned Judges are overruled. Shalini insofar as it stipulates a requirement of a dishonest intent for the application of the provision of Section 10 is, with respect, erroneous and does not reflect the correct position in law;
69.9. Mens rea is an ingredient of the penal provisions contained in Section 11. Section 11 is prospective and would apply in those situations where the act constituting the offence has taken place after the date of its enforcement;
69.10. The judgment of the Full Bench of the Bombay High Court in Arun (supra) is manifestly erroneous and is overruled; and
69.11. Though the power of the Supreme Court under Article 142 of the Constitution is a constitutional power vested in the court for rendering complete justice and is a power which is couched in wide terms, the exercise of the jurisdiction must have due regard to legislative mandate, where a law such as Maharashtra Act 23 of 2001 holds the field."
6. As is clear from para 69.10, the decision of the Full Bench of the High Court in Arun Sonone(supra) was expressly over-ruled by this Court.

7. In the circumstances, no relief could be granted in favour of respondent.

8. However, it was submitted by Mr. Vinay Navare, learned senior advocate appearing for respondent that there was no opposition to the course which was suggested by the original writ petitioner and therefore, the order of the Division Bench which is presently under appeal came to be pressed.

9. In the circumstances, we set aside the view taken by the Division Bench and remit the matter for fresh consideration by the High Court. Writ Petition No.3905 of 2000 thus stands restored to the file of High Court which may be disposed of in accordance with law.

10. The appeal is allowed in aforesaid terms. No costs.