India & Anr Vs. Avinash D. Mandivikar & Ors  Insc 481 (14 September 2005)
Pasayat & H.K. Sema Arijit Pasayat, J.
call in question legality of the judgment rendered by a Division Bench of the
Bombay High Court holding that the respondent no.1 (hereinafter referred to as
the 'employee') was to be reinstated in the post in which he was appointed with
continuity of service with back wages.
further held that he was not entitled to promotion as he did not belong to
background facts sans unnecessary details are as follows:
respondent joined the services of the appellant no.1-Bank on 15.10.1976 under
the reserved category of Scheduled Tribe. He was on probation for a period of
six months and thereafter his services came to be confirmed. In 1984 he was
promoted in the reserved category to the post of Junior Management Scale I. He
was asked to submit fresh caste certificate in the revised form as he was
promoted in the reserved category. His caste certificate was referred to the
Committee For Scrutiny And Verification Of Tribe Claims, Pune Division, Pune
(in short the 'Scrutiny Committee') for verification on 13th June, 1987. The Scrutiny Committee invalidated
the caste certificate by order dated 18th July, 1987. The same was challenged before the
High Court in Writ Petition no.3680/1994. The matter was remanded to the
Scrutiny Committee for fresh hearing. Again by order dated 17th June, 1995 the Scrutiny Committee invalidated
the caste certificate. The matter was again remanded by the High Court by order
dated 7th August, 1996. The Scrutiny Committee by order
dated 24th December,
1998 invalidated the
caste certificate. The said order was challenged before the Bombay High Court
by filing writ petition which was withdrawn with liberty to file fresh writ
petition. Another writ petition was filed which was disposed of by order dated 12th April, 2001. It was prayed that enquiry
proceedings were initiated by the employer, and if any adverse decision is
given by the Enquiry Officer or his services are affected by any order passed
by the disciplinary authority on the basis of the finding of the Enquiry
Officer, liberty may be granted to challenge the legality of the order of the
Scrutiny Committee and the disciplinary proceedings. The prayer was accepted
and the writ petition was dismissed as withdrawn granting opportunity as
afore-noted. The Enquiry Officer submitted report holding that the charges were
proved and the disciplinary authority after issuing show cause notice
terminated the services of respondent no.1-employee by order dated 28th February, 2002. The said order of termination was
challenged before the Bombay High Court primarily on the ground that the
proceedings for verification of the caste certificate were not initiated within
High Court found substance in such plea. It was noted that though respondent
no.1-employee joined the services of the Bank in 1976, the reference was made
in the year 1987.
held that the period was not reasonable for initiation of proceedings. The High
Court accordingly held that the proceedings were not initiated validly. Having
held so, it was further held that respondent no.1-employee does not belong to
Scheduled Tribe and, therefore, was not entitled to promotion in the next
higher rank. Direction was given to reinstate in the post he was appointed with
continuity of service with back wages.
counsel for the appellants submitted that the view taken by the High Court is
clearly erroneous. The High Court has not interfered with the invalidation
order of the Scrutiny Committee. The conclusions of the High Court are contrary
in terms. On one hand, it has been held that the reference was not made within
reasonable time. On the other hand, it has been held that respondent no.1 did
not belong to Scheduled Tribe. This conclusion obviously is based on the order
of invalidation passed by the Scrutiny Committee.
an action is founded on fraud the question of any reasonable period for
initiation of action is clearly immaterial. By granting protection of the
respondent no.1- employee the High Court has in essence nullified the object
for which scrutiny of the caste claim is made and the purpose for which
reservation has been made for Scheduled Caste and the Scheduled Tribes.
contra, learned counsel for respondent no.1- employee submitted that the High
Court has taken equitable view. Reference was made to a decision of the
Constitution Bench of this Court in State of Maharashtra v. Milind and Ors. (2001(1) SCC 4); more particularly para
38 thereof which did not disturb the admissions which had become final but it
was held that in future no benefit in the status of Scheduled Tribe was to be
Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development and Ors.
(1994 (6) SCC 241) the object for granting certain benefits to persons
belonging to Scheduled Caste and Scheduled Tribe and the approach to be adopted
in matters where benefits are fraudulently obtained was highlighted. At para 13
of the judgment it was, inter alia, noted as follows:
The admission wrongly gained or appointment wrongly obtained on the basis of
false social status certificate necessarily has 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
ineligible or spurious persons who falsely gained entry resort to dilatory
tactics and create hurdles in completion of the inquiries by the Scrutiny
Committee. It is true that the applications for admission to educational
institutions are generally made by a parent, since on that date many a time the
student may be a minor. It is the parent or the guardian who may play fraud
claiming false status certificate. It is, therefore, necessary that the
certificates issued are scrutinised at the earliest and with utmost expedition
and promptitude. For that purpose, it is necessary to streamline the procedure
for the issuance of social status certificates, their scrutiny and their
approval, which may be the following:
application for grant of social status certificate shall be made to the Revenue
Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the
certificate shall be issued by such officer rather than at the Officer, Taluk
or Mandal level.
parent, guardian or the candidate, as the case may be, shall file an affidavit
duly sworn and attested by a competent gazetted officer or non-gazetted officer
with particulars of castes and sub-castes, tribe, tribal community, parts or
groups of tribes or tribal communities, the place from which he originally
hails from and other particulars as may be prescribed by the Directorate
Application for verification of the caste certificate by the Scrutiny Committee
shall be filed at least six months in advance before seeking admission into
educational institution or an appointment to a post.
the State Governments shall constitute a Committee of three officers, namely,
Additional or Joint Secretary or any officer higher in rank of the Director of
the department concerned,
Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may
the case of Scheduled Castes another officer who has intimate knowledge in the
verification and issuance of the social status certificates. In the case of the
Scheduled Tribes, the Research Officer who has intimate knowledge in
identifying the tribes, tribal communities, parts of or groups of tribes or
Each Directorate should constitute a vigilance cell consisting of Senior Deputy
Superintendent of Police in over-all charge and such number of Police
Inspectors to investigate into the social status claims. The Inspector would go
to the local place of residence and original place from which the candidate
hails and usually resides or in case of migration to the town or city, the
place from which he originally hailed from. The vigilance officer should
personally verify and collect all the facts of the social status claimed by the
candidate or the parent or guardian, as the case may be. He should also examine
the school records, birth registration, if any. He should also examine the
parent, guardian or the candidate in relation to their caste etc. or such other
persons who have knowledge of the social status of the candidate and then
submit a report to the Directorate together with all particulars as envisaged
in the proforma, in particular, of the Scheduled Tribes relating to their
peculiar anthropological and ethnological traits, deity, rituals, customs, mode
of marriage, death ceremonies, method of burial of dead bodies etc. by the
castes or tribes or tribal communities concerned etc.
Director concerned, on receipt of the report from the vigilance officer if he
found the claim for social status to be "not genuine" or 'doubtful'
or spurious or falsely or wrongly claimed, the Director concerned should issue
show-cause notice supplying a copy of the report of the vigilance officer to
the candidate by a registered post with acknowledgment due or through the head
of the educational institution concerned in which the candidate is studying or
employed. The notice should indicate that the representation or reply, if any,
would be made within two weeks from the date of the receipt of the notice and
in no case on request not more than 30 days from the date of the receipt of the
notice. In case, the candidate seeks for an opportunity of hearing and claims
an inquiry to be made in that behalf, the Director on receipt of such
representation/reply shall convene the committee and the Joint/Additional
Secretary as Chairperson who shall give reasonable opportunity to the
candidate/parent/guardian to adduce all evidence in support of their claim. A
public notice by beat of drum or any other convenient mode may be published in
the village or locality and if any person or association opposes such a claim,
an opportunity to adduce evidence may be given to him/it. After giving such
opportunity either in person or through counsel, the Committee may make such
inquiry as it deems expedient and consider the claims vis-a-vis the objections
raised by the candidate or opponent and pass an appropriate order with brief
reasons in support thereof.
case the report is in favour of the candidate and found to be genuine and true,
no further action need be taken except where the report or the particulars
given are procured or found to be false or fraudulently obtained and in the
latter event the same procedure as is envisaged in para 6 be followed.
Notice contemplated in para 6 should be issued to the parents/guardian also in
case candidate is minor to appear before the Committee with all evidence in his
or their support of the claim for the social status certificates.
inquiry should be completed as expeditiously as possible preferably by
day-to-day proceedings within such period not exceeding two months. If after
inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious,
they should pass an order cancelling the certificate issued and confiscate the
same. It should communicate within one month from the date of the conclusion of
the proceedings the result of enquiry to the parent/guardian and the applicant.
case of any delay in finalising the proceedings, and in the meanwhile the last
date for admission into an educational institution or appointment to an officer
post, is getting expired, the candidate be admitted by the Principal or such
other authority competent in that behalf or appointed on the basis of the
social status certificate already issued or an affidavit duly sworn by the
parent/ guardian/candidate before the competent officer or non-official and
such admission or appointment should be only provisional, subject to the result
of the inquiry by the Scrutiny Committee.
The order passed by the Committee shall be final and conclusive only subject to
the proceedings under Article 226 of the Constitution.
suit or other proceedings before any other authority should lie.
The High Court would dispose of these cases as expeditiously as possible within
a period of three months. In case, as per its procedure, the writ
petition/miscellaneous petition/matter is disposed of by a Single Judge, then
no further appeal would lie against that order to the Division Bench but subject
to special leave under Article 136.
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.
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 acknowledgment
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." Respondent no.1-employee obtained
appointment in the service on the basis that he belonged to Scheduled Tribe.
the clear finding of the Scrutiny Committee is that he did not belong to
Scheduled Tribe, the very foundation of his appointment collapses and his
appointment is no appointment in the eyes of law. There is absolutely no
justification for his claim in respect of post he usurped, as the same was
meant for reserved candidate.
urged by learned counsel for the respondent no.1-employee that there was no
fraud practiced and it was, in fact, under a bona fide belief that the claim
was made and there is no finding about any fraud having been practiced by the employee.
The Scrutiny Committee examined the various documents and came to a definite
conclusion that documents were manipulated to present false claim.
of the respondent no.1-employee is to the effect that he has put in nearly
three decades of service and has about three years to go before retirement, and
in terms of the High Court's order he has been denied promotion.
the order of the High Court is an equitable order.
similar plea about long years of service was considered by this Court in R. Vishwanatha
Pillai v. State of Kerala and Ors. 2004(2) SCC 105) to be
19 it was observed:
was then contended by Shri Ranjit Kumar, learned Senior Counsel for the
appellant that since the appellant has rendered about 27 years of service, the
order of dismissal be substituted by an order of compulsory retirement or
removal from service to protect the pensionary benefits of the appellant. We do
not find any substance in this submission as well. The rights to salary, pension
and other service benefits are entirely statutory in nature in public service.
The 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 eye of the law. The right
to salary or pension after retirement flows 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 fraudulently and rested
on a false caste certificate. A person who entered the service by producing a
false caste certificate and obtained appointment for the post meant for a
Scheduled Caste, thus depriving a genuine Scheduled Caste candidate 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 would the court 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 a
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." 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 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.
find the conclusions of the High Court to be contradictory. On one hand the
High Court faulted the reference which was made after about ten years and on
the other hand accepted the findings of the Scrutiny Committee that the
respondent no.1 did not belong to Scheduled Tribe as was held by the Scrutiny
Committee. Mere delay in making a reference does not invalidate the order of
the Scrutiny Committee. If the High Court felt that the reference was
impermissible because of long passage of time, then that would have made the
reference vulnerable. By accepting the findings of the Scrutiny Committee that
the respondent no.1- employee did not belong to Scheduled Tribe, the
observations about the delayed reference loose significance. The matter can be
looked into from another angle. When fraud is perpetrated the parameters of
consideration will be different. Fraud and collusion vitiate even the most
solemn proceedings in any civilized system of jurisprudence. This Court in Bhaurao
Dagdu Paralkar v. State of Maharashtra and Ors. (JT 2005 (7) SC 530) dealt with
effect of fraud. It was held as follows in the said judgment:
.............Fraud is proved when it is shown that a false representation has
belief in its truth, or
careless whether it be true or false'.
This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti
Lal (2002 (1) SCC 100) Ram Preeti Yadav v. U.P. Board of High School and
Intermediate Education (2003 (8) SCC 311), Ram Chandra Singh's case (supra) and
Ashok Leyland Ltd. v. State of T.N. and Another (2004 (3) SCC 1).
Suppression of a material document would also amount to a fraud on the court. (see
Gowrishankar v. Joshi Amba Shankar Family Trust (1996 (3) SCC 310) and S.P. Chengalvaraya
Naidu's case (supra).
"Fraud" is a conduct either by letter or words, which induces the
other person or authority to take a definite determinative stand as a response
to the conduct of the former either by words or letter. Although negligence is
not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav's
Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at pages
712 & 713, "No judgment of a Court, no order of a Minister can be
allowed to stand if it has been obtained by fraud. Fraud unravels
everything." In the same judgment Lord Parker LJ observed that fraud
vitiates all transactions known to the law of however high a degree of
solemnity. (page 722)
These aspects were recently highlighted in the State of Andhra Pradesh and Anr.
v. T. Suryachandr Rao (2005 (5) SCALE 621)" Therefore, mere delayed
reference when the foundation for the same is alleged fraud does not in any way
affect legality of the reference.
from any angle the High Court's judgment holding that the respondent
no.1-employee was to be reinstated in the same post as originally held is
clearly untenable. The order of termination does not suffer from any infirmity
and the High Court should not have interfered with it. By giving protection for
even a limited period, the result would be that a person who has a legitimate
claim shall be deprived the benefits. On the other hand, a person who has
obtained it by illegitimate means would continue to enjoy it notwithstanding
the clear finding that he does not even have a shadow of right even to be
considered for appointment.
appeal is allowed but without any order as to costs.