Sandeep
Subhash Parate Vs. State of Maharashtra & Ors [2006] Insc 530 (24 August 2006)
S.B.
Sinha & Dalveer Bhandari
(Arising
out of SLP (C) No. 9735/2005) S.B. Sinha, J.
Leave
granted.
The
appellant claims himself to be a member of 'Halba' community. 'Halba' is a
Scheduled Tribe. He obtained admission in the courses of Bachelor of
Engineering (Instrumentation Engineering) in Pune University, (Respondent No.4), claiming
himself to be belonging to 'Halba' a Scheduled Tribe community. According to
the appellant, the question as to whether 'Koshti-Halbas' are members of
Scheduled Tribe or not had been authoritatively decided for the first time in
State of Maharashtra vs. Milind & Ors. [(2001) 1 SCC
4] and in that view of the matter, he had represented himself to be a member of
Scheduled Tribe. Drawing our attention to the fact that even in Milind (supra),
this Court directed that those, who have completed their courses from the
universities, should be allowed to obtain degrees and get the benefit thereof
as general candidates, the appellant was also entitled to a similar relief.
Indisputably,
the Caste Scrutiny Committee constituted in terms of the decision of this Court
in Kumari Madhuri Patil & Anr. vs. Additional Commissioner, Tribal
Development & Ors. [(1994) 6 SCC 241] invalidated the caste certificate
granted in favour of the appellant. In the writ petition filed by him thereagainst,
an interim order was passed in his favour, in terms whereof he obtained
admission in the course of Bachelor of Engineering (Instrumentation
Engineering) in the Government Engineering College, Pune, which is affiliated to the
respondent No.4-University. The High Court allowed the writ petition and
remitted the matter back to the Scrutiny Committee. His claim was rejected by
the Scrutiny Committee by an order dated 30th September, 2002. In a writ petition filed by him
before the Nagpur Bench of the Bombay High Court questioning the said order of 30th September, 2002, no interim relief was granted,
but, the appellant continued with his studies. The said writ petition was
dismissed for default, but, it was restored. He completed his studies in the
year 2004. He appeared at the examination. An application was filed by him for
a direction to respondent No.4-University to supply him the degree along with
the marksheet. However, in the meantime, the writ petition itself was dismissed
on merits. Thus, no order was also passed on the said application. The review
application filed by the appellant herein has been dismissed by the High Court
by reason of the impugned order.
The
learned counsel appearing on behalf of the appellant merely urged that this
Court may issue a direction to the University to grant him the degree as he has
completed his courses of studies in the meantime.
Mr. Ravindra
Kumar Adsure, learned counsel appearing on behalf of the State and Mr. Makrand
D. Adkar, learned counsel appearing for respondent No.4-University, however,
submitted that the appellant has not made out any case for obtaining any relief
from the High Court having failed to show his bona fide.
It was
urged that as the appellant has played fraud on the statutory authorities, he
is not entitled to any equitable relief. Reliance has been placed on Bank of
India & Anr. vs. Avinash Mandivikar & Ors. [(2005) 7 SCC 690] and Ram
Saran vs. I.G. of Police, C.R.P.F. & Ors. [2006 (2) SCALE 131].
It now
stands admitted that the appellant did not belong to 'Halba' community. He was
a Koshti. On verification of his caste certificate the Vigilance Cell found
that his school records clearly showed that the appellant belonged to the Koshti
community.
The
question as regards invalidation of caste certificate came up consideration
before this Court in Kumari Madhuri (supra), wherein this Court directed the
Central Government and the State Governments to constitute Caste Scrutiny
Committees to go into such issues as and when they arise for consideration.
Indisputably, a finding of fact has been arrived at by the Caste Scrutiny
Committee against the appellant negativing his claim that he is a member of
Scheduled Tribes.
However,
the fact remains that he got himself admitted in view of an interim order
passed by the High Court. Indisputably, the question as to whether 'Koshti-Halbas'
are members of Scheduled Tribe or not was authoritatively answered only in Milind
(supra), which was decided on 28th November, 2000, wherein it was observed :
"Respondent
1 joined the medical course for the year 1985-86. Almost 15 years have passed
by now. We are told he has already completed the course and may be he is practising
as a doctor. In this view and at this length of time it is for nobody's benefit
to annul his admission. Huge amount is spent on each candidate for completion
of medical course. No doubt, one Scheduled Tribe candidate was deprived of
joining medical course by the admission given to Respondent 1. If any action is
taken against Respondent 1, it may lead to depriving the service of a doctor to
the society on whom public money has already been spent. In these
circumstances, this judgment shall not affect the degree obtained by him and
his practising as a doctor. But we make it clear that he cannot claim to belong
to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words,
he cannot take advantage of the Scheduled Tribes Order any further or for any
other constitutional purpose." Yet again in R. Vishwanatha Pillai etc. vs.
State of Kerala & Ors. etc. [(2004) 2 SCC 105], a Three Judge Bench of this
Court had the occasion to deal with a similar issue. Following Milind (supra),
this Court held:
"In
this case we find that the appellant had joined Regional Engineering College in the year 1992. He completed the course of his studies in
the year 1996 under the interim orders of (sic the High) Court which were
subject to the final orders to be passed in the writ petition. No purpose would
be served in withholding the declaration of the result on the basis of the
examination already taken by him or depriving him of the degree in case he
passes the examination. In terms of the orders passed by the Constitution Bench
of this Court in State of Maharashtra v. Milind we direct that his result be
declared and he be allowed to take his degree with the condition that he will
not be treated as a Scheduled Caste candidate in future either in obtaining
service or for any other benefits flowing from the caste certificate obtained
by him.
His
caste certificate has been ordered to be cancelled. Henceforth, he will be
treated as a person belonging to the general category for all purposes." A
different opinion, however, was struck in Bank of India & Anr. vs. Avinash
D. Mandivikar & Ors. [(2005) 7 SCC 690], wherein a Two Judge Bench of this
Court distinguished Milind (supra) and R. Vishwanatha Pillai (supra) stating
that protection given therein cannot be extended to an employee of a Bank and,
thus, the factors which weighed with this Court cannot be applied to the
respondent therein. The Court observed that in any event, if Respondent No.1
had played fraud, he should not be allowed to get the benefits thereof. The
same learned Judge in Ram Saran (supra) held that leniency should not be shown
to a person who admittedly committed forgery.
The
issue again came of up consideration in LIC of India vs. Sushil [(2006) 2 SCC
471], wherein this Court remitted the matter back to the High Court observing that
:
"Before
us it was urged on behalf of Respondent 1 that in the State of Maharashtra at the relevant time there were
resolutions/government orders which made the respondent believe that there was
no fraudulent intention in claiming to be Halba. Mr. Lalit, learned counsel for
the respondent submitted that none of these aspects (including various GRs)
have been considered. The High Court in the present case proceeded on the basis
as if mere filing of an undertaking in the line suggested by the writ
petitioner was sufficient to bring the case under the umbrella of the decision
in Milind case. That is clearly not so.
As the
High Court has not considered the matter in its proper perspective, except
relying on Milind case we think it appropriate to remit the matter to the High
Court for a fresh consideration on merits of the case on the grounds, if any,
without being influenced by any observation in this order." Some peculiar
characteristics exist in this case:
-
The appellant competed
his substantial tenure as a student under the interim orders passed by the High
Court.
-
No opportunity
of hearing was given to him by the Scrutiny Committee at the first instance and
his first writ petition was allowed.
-
Although, in the
second writ petition, he could not obtain any interim order, yet he was allowed
to continue his studies without any demur by the State and University
authorities.
-
He filed an
application after completion of his studies that respondent No.4-University
should be directed to issue to him the degree of Bachelor of Engineering. No
order was passed thereupon.
-
A review
application was filed on the basis that the Bench did not take into
consideration the decision of this Court in Milind (supra).
A person
indisputably is not entitled to a relief only because an interim order was
passed in his favour, but the premise on which such an interim order was passed
would assume some significance in the instant case in so far as a presumption
may be drawn that prima facie the appellant was not considered guilty of
commission of fraud and the possibility that the question in regard to his
status as a member of Scheduled Tribe as the issue as to whether 'Koshti-Halbas'
were members of Scheduled Tribe had not been finally determined, was in the
mind of the court. {See for example, Employees State Insurance Corporation vs.
Distilleries & Chemical Mazdoor Union & Ors. [2006 (7) SCALE 171].} The
appellant took his admission in the year 1998, i.e., prior to the decision of
this Court in Milind (supra). It is true that he had obtained his admission in
a professional institution not purely on the basis of his merits but on the
basis that he belonged to a reserved category. It is also true that thereby he
might have deprived a genuine student of reserved category from obtaining
admission, but, in a case of this nature, what is necessary to bear in mind is
the bona fide or otherwise of the appellant. He might not have semblance of
right as was observed by the High Court but as the learned counsel for the
appellant states that he might have been under a bona fide belief that Koshti-Halbas
were members of a Scheduled Tribe.
It is
not in dispute that the Bombay High Court held so.
However,
as it appears from the decision of this Court in LIC (supra) that the State
might have also issued some Government orders making such declaration.
Indisputably, the conduct of a party assumes significance in moulding the
relief. This court, while exercising its discretionary jurisdiction and to do
complete justice between the parties in terms of Article 142 of the
Constitution of India, must consider all relevant aspects of the matter,
including the decisions of this Court.
The
doctrine of proportionality emerging from the recent trend of decisions in
preference to the doctrine of Wednesbury unreasonableness is also a factor
which weighs with us. {See Teri Oat Estates (P) Ltd. vs. U.T., Chandigarh &
Ors. [(2004) 2 SCC 130] and A. Sudhakar vs. Post Master General, Hyderabad & Anr. [2006 (3) SCALE 524].}
We do not find any lack of bona fide on the part of the appellant.
He, it
will bear repetition to state, got admission in the professional course as far
back in the year 1998. For about last three years, he had not been able to
receive his degree of Engineering, although, he pursued his studies after he
had passed class 12th examination. Just like Medical Education, the State also
incurs a heavy expenditure in imparting other professional education like
Engineering. 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.
Such
payment must be made within three months from this date. On filing satisfactory
proof of the deposit of such an amount, the respondent No.4 shall immediately
issue the degree in his favour. The appellant shall not claim any benefit
flowing from the caste certificate obtained by him, which shall stand
cancelled. In future, for all purposes he will be treated to be a person
belonging to the general category.
The
appeal is allowed to the extent mentioned hereinbefore and on the
aforementioned terms. No costs.
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