of Maharashtra & Ors Vs. Sanjay K. Nimje  Insc 46 (16 January 2007)
Sinha & Markandey Katju (Arising out of Slp(C) No. 6581 of 2006) S.B. Sinha, J.
appeal is directed against a judgment and order dated 19.08.2005 passed by a
Division Bench of the High Court of Judicature of Bombay in Writ Petition No. 4158 of 2005
whereby and whereunder the writ petition filed by the respondent herein was
was appointed in the services of the Government of Maharashtra on 29.06.1995.
Respondent claimed to be belonging to Halba community, a scheduled tribe. The
caste certificate procured by the respondent from the competent officer having
been doubted, the matter was referred to the Caste Certificate Scrutiny
Committee, Nagpur on 27.08.1999 for verification. The
respondent was found to be belonging to 'Koshti' caste which comes within the
category of 'special backward class' and not within the scheduled tribe
question as to whether 'Koshti Halbas' are members of the Scheduled Tribe or
not came up for consideration before this Court in State of Maharashtra v. Milind
and Others [(2001) 1 SCC 4], wherein it was held that they were not.
view of the finding of fact that the respondent herein was not a member of the
scheduled tribe but was a 'Koshti', his caste certificate was invalidated by an
order dated 24.06.2004.
petition thereafter was filed by the respondent before the High Court praying
inter alia for the following reliefs:
" That by
passing a suitable writ, order or direction in the nature of mandamus or
certiorari or any other appropriate writ, order or direction, a quash and set
aside the order dated 24.6.2004 passed by the Respondent No. 2 Committee
invalidating the tribe claim of Petitioner that he belongs to Halba, Scheduled
It be held and
declared that in view of Government Resolutions dated 15.6.1995 and 30.6.2004
the services of Petitioner's are liable to be protected thereby issuing such
order to the Respondent No. 2 and 3.
During the pendency
of present petition by passing an order ad interim in nature stay the effect,
operation and implementation of the order dated 24.6.2004 invalidating tribe
claim of Petitioner and/ or in the alternative restrain the Respondents No. 1 and
3 from passing any adverse order consequent upon invalidation of tribe claim of
petitioner by Respondent No. 2 Committee." It appears that the respondent
accepted the findings of the Caste Scrutiny Committee. However, relying on or
on the basis of a purported government resolution dated 15.06.1995 whereby and whereunder
the services of persons who were appointed prior thereto were sought to be
protected, the Division Bench of the High Court by reason of the impugned
judgment directed that although the respondent was appointed on 29.06.1995,
having regard to the fact that he had been selected on 15.06.1995, he was
entitled to protection in terms of the said resolution stating:
present case the Petitioner was selected on 15th June, 1995 and got the appointment order on 29th June, 1995. Since Maruti Sandipan Jadhav the
Petitioner in Writ Petition No. 422 of 1997, is entitled to get the benefit
under the Government Resolution dated 15th June, 1995 the same principle should be
applied to the Petitioner in the present petition.
In the result,
the petition is allowed. The impugned order of dismissal dated 27th May 2005 is quashed and set aside. The
Respondents are directed to reinstate the Petitioner with continuity of service
but without back wages and to regularize his service in the light of the
Government Resolution dated 15th June, 1995" Mr. S.S. Shinde, learned
counsel appearing on behalf of the appellants, would submit that having regard
to the decision of the Caste Scrutiny Committee, the impugned judgment cannot
be sustained particularly in view of the fact that he was appointed on
Manish Pitale, learned counsel appearing on behalf of the respondent, on the
other hand, would submit that in a case of this nature and particularly in view
of the fact that the question as to whether 'Koshti- Halbas' are the members of
the scheduled tribe or not had authoritatively been pronounced only in Milind
(supra); this Court may protect the services of the respondent. Reliance in
this behalf has been placed in a similar case in Civil Appeal No. 3375 of 2000
decided on 12.12.2000, which is in the following terms:
appellant having belonged to Koshti caste claimed to be included in the
scheduled tribe of Halba and obtained an appointment as Assistant Engineer.
When his appointment was sought to be terminated on the basis that he did not
belong to scheduled tribe by the Government a writ petition was filed before
the High Court challenging that order which was allowed. That order is
questioned in this appeal. The questions arising in this case are covered by
the decision in State of Maharashtra got to be allowed, however, the
benefits derived till now shall be available to the appellant to the effect
that his appointment as Assistant Engineer shall stand protected but no
further. The appeal is disposed of accordingly." Indisputably, the State
of Maharashtra enacted "Maharashtra Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and
Special Backward Category (Regulation of Issuance and Verification of) Caste
Certificate Act, 2000 (for short "the 2000 Act"). Section 6 of the
2000 Act laid down the procedure for the verification of caste certificate.
Section 7 thereof provides for confiscation and cancellation of a caste
certificate in the event the same appears to be false. Section 10 provides for
withdrawal of the benefits secured on the basis of the false caste certificate
in the following terms:
"Benefits secured on the basis
of false Caste Certificate to be withdrawn. (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
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 arrear of land revenue.
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.
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 had contested the
election for local authority, Co-operative Society or any statutory body on the
seat reserved for any of Scheduled Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward
Category by procuring a false Caste Certificate as belonging to such Caste,
Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny
Committee, and any benefits obtained by such person shall be recoverable as
arrears of land revenue and the election of such person shall be deemed to have
been terminated retrospectively." The Caste Scrutiny Committee was
initially constituted in terms of the decision of this Court in Kumari Madhuri Patil
& Anr. v. Additional Commissioner, Tribal Development & Ors. [(1994) 6
SCC 241]. The Committee which was now constituted in terms of the 2000 Act
issued a notice upon the respondent. He was given an opportunity of hearing.
The principles of natural justice had, thus, been complied with. The Caste
Scrutiny Committee opined that the respondent failed to prove that his socio-
cultural traits, characteristics, festivals and customs match with those of Halba,
Scheduled Tribe community. It was found that the father of the respondent
himself had given details of his family tree as also socio-cultural traits which
categorically showed that the respondent was not a member of the Scheduled
Tribe community. Even the primary school leaving certificate of the
respondent's father clearly showed that they belonged to 'Koshti'. It was
considering all the documents and facts and in exercise of the powers vested
vide Government Resolutions quoted in the preamble at Sr.No.1, the Caste
Scrutiny Committee has come to the conclusion that Shri Sanjay Krushnarao Nimje
does not belong to the Halba Scheduled Tribe hence his claim towards the same
is held invalid.
caste certificate granted by the Executive Magistrate, Nagpur vide R.C.No.287/MRC-81/88- 89,
dated 1.9.88 is hereby cancelled confiscated." It is accepted that an
undertaking was filed by the respondent accepting the order passed by Appellant
No. 3 Committee before the High Court in the following terms:
Petitioner is filing this pursis/undertaking that he accepts the order passed
by the Respondent No.2 Scrutiny Committee and further undertakes that he or his
legal heirs/progeny will not claim any benefit as a schedule Tribe Candidate
either in education or in employment.
view of the Government Resolution dated 15.6.1995 and the judgment of this Hon'ble
Court, filed along with this petition as Annexure T, the services of the
Petitioner be protected and he may be continued in service by giving specific
directions to the Respondent employer." Indisputably, on 7.12.1994, 'Koshtis'
were declared to be as Special Backward Class category. By reason of the said
Government Resolution dated 15.06.1995, it was directed:
reservation as aforesaid given to Special Backward Class category is applicable
to direct recruitment and promotions and the Creamy layer criteria is not
applicable to this category. The persons from this category who have entered
into service and has obtained promotion on the basis of Schedule Tribe
Certificates, they should not be reverted or terminated from service."
Respondent admittedly was appointed on 29.06.1995. Although he might have been
selected on 15.06.1995, ex facie, the said Government Resolution dated
15.06.1995 would have no application in his case.
the respondent became disentitled to obtain the benefit of the said Government
Resolution dated 15.06.1995, the 2000 Act will apply in his case.
2000 Act being a legislative Act would prevail over any Government Resolution.
A Government Resolution may be beneficient 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.
event, 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.
extent of jurisdiction of the Caste Scrutiny Committee came up for
consideration before this Court in State of Maharashtra and Others v.
Ravi Prakash Babulalsing Parmar & Anr.
[2006 (10) SCALE 575 : 2007 (1) SCC 80] wherein this Court categorically held
that the Caste Scrutiny Committee has the requisite jurisdiction in relation
makers of the Constitution laid emphasis on equality amongst citizens. 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, 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." We may also notice that ordinarily a
person, who has obtained appointment on the basis of a false certificate,
cannot retain the said benefit.
Bank of India and Another v. Avinash D. Mandivikar and Others, (2005) 7 SCC
690, Ram Saran v. I.G. of Police, CRPF & Ors. 2006 (2) SCALE 131 and The
Superintendent of Post Offices & Ors. v. R. Valasina Babu, Civil Appeal No.
5868 of 2006, disposed of on 14.12.2006] 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 &
Ors. [2006 (8) SCALE 503] From the order of the Caste Scrutiny Committee itself,
it is evident that the father of the respondent was shown in the primary school
register as belonging to 'Koshti' caste. They were not members of Scheduled
were not even 'Koshti-Halbas'. It may be true that an authoritative
pronouncement in this behalf came for the first time in Milind (supra), but it
is not a case where the respondent pleaded and proved bona fide.
was not the member of a tribe. If a person is not a member of a tribe, the
question of the said tribe being a scheduled tribe would not arise.
it is a clear case where the provisions of the 2000 Act would apply. We see no
reason as to why the statutory provisions should not be directed to apply in
the instant case. It may be that at one point of time, keeping in view of the
stand taken in particular case, some indulgence had been shown. Indulgence
might have been shown to the students or who were found to have acted bona fide
but the same would not mean that this Court would pass an order contrary to or
inconsistent with the provisions of a legislative act.
attention was drawn to an order dated 12th December, 2000 passed in Civil Appeal No. 3375 of
2000, but it does not appear the provisions of the 2000 Act had been brought to
the notice of this Court therein. Furthermore, we are not aware as to the fact
involved therein and, thus, the same cannot be treated to be a precedent.
the reasons aforementioned, the impugned judgment cannot be sustained, which is
set aside accordingly. The appeal is allowed. In the facts and circumstances of
the case, however, we make no order as to costs.