Raju Ramsing Vasave Vs.
Mahesh Deorao Bhivapurkar & Ors.  INSC 1471 (29 August 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5308 OF 2008 [Arising out
of SLP (Civil) No. 7555 of 2008] Raju Ramsing Vasave ...Appellant Versus Mahesh
Deorao Bhivapurkar & Ors. ...Respondents
S.B. SINHA, J :
a co-employee of the respondent No. 1 who was working as a Field Officer with
the Maharashtra Pollution Control Board can maintain an independent special
leave questioning the judgment of a High Court setting aside an order of the
Schedule Tribe Caste Certificate Scrutiny Committee is the question involved
however, we advert thereto, we may notice the admitted factual matrix of the
Respondent No. 1
claims himself to be a member of Schedule Tribe being belonging to
"Halba" tribe notified in terms of the Constitution (Scheduled
Tribes) Order, 1950. Respondent No. 1 and his family members are highly
educated. The caste of his father in the school records was shown as
"Koshti" whereas the caste of his uncle was also shown as
"Koshti" which was, however, later on corrected as "Halba".
One of his cousins Ku. Sandhya Manohar Bhivapurkar, daughter of the uncle of
the respondent No. 1, was also granted a certificate as belonging to the
intricate question as to whether "Koshti" is a sub-caste of
"Halba" or "Halbi" came up for consideration before a
Division Bench of the Bombay High Court in Milind Sharad Katware and others v.
State of Maharashtra and others [1987 Mh. L.J. 572]. In the said judgment, the
Division Bench inter alia referred to the report of a Joint Committee headed by
Dr. A.K. Chandra which had been submitted to the Parliament on 17.11.1969 to
3 "...It does
appear from the report that representation sent to the Joint Committee by Halba
Koshti Samaj was circulated to the members and that the Committee had visited
Nagpur. However, it does not appear that either evidence is taken on the matter
as has been done in the cases of several representations about other Committees
or that even without that a conclusion is reached that Halba - Koshti does not
form part and parcel of Tribe "Halba' Halbi". It is thus clear that
the enquiries undertaken by several authorities and Courts so far and the
enquiry which we are making now in these petitions do not amount to amending
the list in any manner whatsoever."
and the purported custom of the Halba-Koshti had also been taken into consideration
by the court to hold:
"(1) It is
permissible to enquire whether any sub-division of a Tribe - though not
mentioned in the Act - is a part and parcel of the Tribe mentioned therein.
(2) The decisions
rendered by the Courts from time to time about Halba Koshtis being part and
parcel of "Halba/ Halbi" tribe are binding on the government and
authorities constituted by it.
(3) The scope of
enquiry in cases relating to students' admissions before 8th March 1985 was
limited to points mentioned in the circular dated 31st July 1981.
(4) It is
impermissible to take inconsistent stand about a tribe in cases of near
(5) Circulars dated
31st July 1981 and 23rd September 1983 are valid.
4 (6) `Halba Koshti'
is a sub-division of main tribe "Halba/ Halbi" as per entry No. 19 in
the Act as applied to Maharashtra.
(7) Every Koshti is
not Halba Koshti."
The State of
Maharashtra came up in appeal before this Court thereagainst. A limited order
of stay was passed directing:
"There will be
no order of stay of the judgment of the High Court but subject to the condition
that Halba Koshtis will be entitled to admission to the seats reserved for
Scheduled Tribes on the basis of High Court judgment, provided the authorities
granted admission are satisfied that they or their parents had income of less
than Rs. 7200/- per annum."
however, the respondent No. 1 also filed a writ petition claiming the said
benefit which was marked as W.P. No. 1347 of 1988. The Division Bench of the
Bombay High Court following its decision in Milind Sharad Katware (supra)
allowed the said writ petition by an order dated 11.08.1988 stating:
petition relates to the caste claim Halba. Petitioner's father's real elder
brother has been adjudicated as belonging to Scheduled Tribe.
5 State of
Maharashtra (1987 Mah. Law Journal 572), we have taken a view that it is
impermissible to take inconsistent view between the cases of near relatives in
such matters. Hence the impugned orders are quashed and set aside. The petitioner
is declared to be belonging to Scheduled Tribe - Halba."
is of some significance to note that the Government of Maharashtra appointed an
Expert Committee known as Ferriera Committee. It submitted its report in the
year 1985. In its report, the Expert Committee stated:
Halbi Tribe, as per the Constitution (Scheduled Tribes) Order, (1950) read with
Part - IX of the second schedule to the Scheduled Castes, Scheduled Tribes
Order (Amendment) Act (1976) has been declared a scheduled Tribe in the State
of Maharashtra and has appeared at Sr. No. 19 in the schedule. The members of
the caste known as Koshti/ Halba - Koshti, residing in particular in the
Vidarbha areas, claim that they belong to the said Halba/ Halbi tribe and are
entitled to obtain caste certificates as belonging to the Halba/ Halbi
scheduled Tribe. Their contention is that the word "Koshti" is
indicative of their traditional occupation, namely, weaving and it is not
connected with the caste. Therefore, they should get all the facilities and
concessions extended to the Scheduled Tribes. On the other hand, the Halba/
Halbi tribals, particularly of the Bhandara and Gadchiroli districts and their
6 tribal representatives in the Legislative Assembly, Maharashtra, represented
to the Government that persons belonging to the Halba/ Koshti/ Koshti caste
from the Vidarbha region claim to belong to the Halba/ Halbi tribe in order to
secure concessions sanctioned for the scheduled Tribes. The Halba Koshtis/
Koshtis do not belong to the scheduled Tribes."
Its conclusions were:
"9.1 The expert
committee appointed by the Government of Maharashtra to examine the Halba/
Halba Koshti problem undertook a careful study of the secondary literature,
initiated filed investigations and interviewed a number of Koshtis, a Halba
Koshtis and Halba Tribals. Consequently, it has come to the conclusion that the
Koshtis are a caste, the Halba Koshtis a sub-caste of the Koshti caste and the
Halbas a Scheduled Tribe. The Halba tribals have no relations of identity with
the Halba Koshti sub-caste of the Vidarbha Region, except for a partially
specifically, the Committee has come to the conclusion that the Koshtis and
Halba Koshtis are not characaterised by primitive traits, a relatively distinct
culture, culture, culturally and territorially demarcated areas of habitation
relative shyness of contact with the community at large and a high degree of
backwardness whereas the Halba/ Halbi Scheduled Tribe is indeed so
*** *** *** 9.12 In
brief, an examination of the secondary source from the year 1827 to the year
1985, a 7 review of the field data and an evaluation of the information
accruing from interviews makes it clear that the Halba Koshtis are a caste with
a specific occupation or a sub-caste of the Koshti caste whose traditional
occupation is weaving.
In the census records
the Halbas have been classified as a tribe and the Koshtis as a caste.
facts overwhelmingly indicate that the Koshtis are concentrated in cities and
towns like Nagpur, Bhandara Umred and so on, whereas the Halba tribals are
largely located in the hilly and forest areas of Bhandara and Gadchiroli
Thus with the weight
of evidence before it, the Expert Committee concludes that there are no
decisive social, ethnic, linguistic, religious and other affinities between the
Halba Koshi sub- caste of the Koshti caste, on the one hand and the Halba tribe
in Maharashtra, on the other."
case of the respondent No. 1 was referred to the Schedule Tribe Certificate
Scrutiny Committee. The Committee held:
Scrutiny Committee decided to conduct school enquiry of the case and approached
the primary school of the candidate's father i.e. Mangalwari Prathmik Shala,
Umrer, District Nagpur. In the enquiry with the school it was revealed that the
father of the candidate had studied in this school from 1946 to 1950 and his
caste has been recorded as Koshti, at Sr. No. 3100. This shows that the caste
of the candidate's father was recorded as Koshti. This is pretty old record
pertaining to period prior to the passing of the Constitution 8 Scheduled
Tribe Order 1950 and obviously carries more evidential value than any other
subsequent evidence because there was no provocation at that time for noting
wrong caste claims. Thus, from an important documentary evidence it has been
established that the caste of the candidate's father is Koshti. The caste of
the father determines the caste of his progency in Hindu society. When it has
proved that caste of the candidate's father is Koshti, the caste of the
candidate is bound to be Koshti and he cannot claim to be belonging to Halba,
considered all the documents including the school registers. It went into the
question as to whether the respondent No. 1 followed the traits of the members
of the Scheduled Tribe to hold:
considering all the aforesaid documents and in exercise of the powers vested in
it, the Scrutiny Committee has come to the conclusion that Shri Mahesh Deorao
Bhivapurkar does not belong to Halba Scheduled Tribe and as such his claim
towards the same is held invalid. He belongs to Koshti caste which comes under
other Backward Classes and as such the caste certificate of his belonging to
Halba, Scheduled Tribe granted by the Executive Magistrate, Nagpur vide NO.
235/MEC-81/87-88 dated 18.8.1987 is hereby cancelled."
matter was thereafter referred to the Caste Scrutiny Committee. However,
relying on or on the basis of the decision of the High Court dated 11.08.1988
in Writ Petition No. 1347 of 1988, the Scheduled Tribe Caste Scrutiny
Committee, Pune refused to grant a certificate in his favour by an order dated
towards Halba has been adjudicated by Scrutiny Committee on 24.1.1988 and held
invalid against this decision you have filed Writ Petition No. 1347 of 1988 and
the same is allowed by High Court on 11.8.1988. The Hon'ble High Court quashed
and set aside the order of Director, Tribunal Research and Training Institute,
Pune by referring the similar case of Milind Sharad S.C. Interim order the
benefit of ST is available for the candidates for the education purpose only.
Therefore, there is no question to grant validity only on the basis of limited
The said order
appears to have been passed on a wrong premise that this Court in the case of
Milind Sharad Katware (supra) had passed an interim order. Although the said
order was passed on a wrong premise. Its validity was not questioned.
Milind Sharad Katware (supra), this Court by a judgment and order dated
28.11.2000 (hereinafter referred to as "Milind") held:
1 0 "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."
However, it was
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 1 1 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.
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. 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
and the respondent No. 1 together with two others were appointed as Field
Officers. Whereas the respondent No. 1 was placed at Sl. No. 69 of the Select
List, the appellant was placed at Sl. No. 73 thereof. As against the names of
the S.T. candidates, however, it was stated:
these candidates will be continued subject to "Validity Certificate"
we may notice that an application in the disposed of writ petition bearing No.
1347 of 1988 was filed by the respondent No. 1 in 2006; the prayers made
wherein read as under:
"i) this Hon'ble
High Court may be pleased to issue appropriate direction to the respondent No.
3 to issue caste validity certificate pursuant to the judgment dated 11.8.1988
in Writ Petition No. 1347 of 1988 in the interest of justice;
ii) direct the
respondent No. 4 to consider the petitioner as backward class candidate
belonging to Halba Scheduled Tribe, as per declaration of the Hon'ble High
court as and when promotion to the candidates of Scheduled Tribe category is
ordered/ effected, till the point of time of issue of caste validity
certificate by the Caste Certificate Scrutiny Committee i.e. respondent No. 3
as he is topping the list of Scheduled Tribe employee in the cadre of Field
Officer as per circular letter dated 3.12.2002."
is of some significance to notice that in the original writ petition, the
employer was not a party. In the interlocutory application, however, it was
impleaded as a party.
we advert to the impugned judgment of the High Court, we may notice that the
Maharashtra Pollution Control Board issued a circular on or about 14.12.2004
1 3 "As per
aforementioned referred letter, it is communicated to you about submission of
Scheduled Tribe Officer/ Employee Caste Validity Certificate. And those
officers/ employees who are not having caste validity certificate their record
pertaining to Caste Certificate is to be sent to verification committee. But
the office heads has not looked into the matter specifically and acted
accordingly. You are communicated once again vide this letter that those
officer/ employee in your office which are ST there caste validity certificate
is to be submitted to establishment branch without fail or regarding his
submission and validity certificate the report of action taken at your level is
to be communicated immediately.
employee (Backward class) Scheduled Caste, Scheduled Tribe, Vimukta Jati,
Nomadic Tribe, Other Backward Special Backward etc. in the cadre such officer/
employee are required to submit their caste validity certificate to this office
The officer/ employee
who has not submitted validity certificate or not having validity certificate
is required to submit the record through office to the caste scrutiny committee
and the report of the same should be furnished so that all the backward class
officer/ employee's validity certificate can be attached to their service book.
In this matter all
office head, HQ controlling officer are hereby informed that they have to look
into the matter specifically and take action so early and submit the report to
this office immediately.
1 4 Backward Class
officer/ employees cannot be considered for the promotion without submission of
validity certificate. This has to be brought to the notice of respective
By reason of the
impugned judgment, the High Court held:
(i) It was not
necessary to implead the Maharashtra State Pollution Control Board as a party
in the application.
(ii) The order dated
11.08.1988 passed in the Writ Petition No. 1347 of 1988 attained finality
whereby the respondent No. 1 had been declared to be belonging to the Schedule
(iii) The decision of
the Caste Scrutiny Committee declining grant of certificate relying on or on
the basis of the order dated 14.07.1986 passed by this Court was wrongly
interpreted and it committed an error in refusing to grant such a certificate.
It was directed:
application is allowed in said terms and production of caste certificate dated
13.8.1987 by the applicant with respondent No. 4 - employer would be sufficient
compliance 1 5 with the Circular issued by respondent No. 4 in order to hold
that the applicant belongs to the Scheduled Tribe - Halba by virtue of the
verdict of this Court in Writ Petition No. 1347 of 1988 decided on 11.8.1988."
Gaurav Agarwal, learned counsel appearing on behalf of the appellant, would
urge that although this special leave petition is not in the nature of a public
interest litigation as such, but keeping in view of the fact that the judgment
of the High Court is wholly without jurisdiction being contrary to the decision
of this Court in Milind as well as a large number of decisions following the
same, the impugned judgment cannot be sustained.
A.V. Savant, learned senior counsel appearing on behalf of the respondents, on
the other hand, would contend that the claim of the respondent No. 1 had never
been advanced on the basis that he belongs to Koshti, a sub-caste of Halba
tribe but all along the same had been advanced on the basis that he belongs to
the said tribe.
Contending that the
Division Bench of the Bombay High Court in its judgment dated 11.08.1988 having
held that the respondent No. 1 should be declared to be belonging to
"Halba" tribe on the premise that 1 6 his other relatives had been
declared as such, no exception to the impugned judgment can be taken and for
the aforementioned purpose, the caste certificates granted to the father of the
respondent No. 1, his uncle and the cousin could be relied upon.
The learned counsel
would urge that it would be incorrect to contend that this Court in Milind had
overturned the decision of the High Court that the test of scrutiny as regards
the traits of a member of the Scheduled Tribe should not be on the premise that
his other near relatives had been granted the certificates. In support of the
said contention, our attention has been drawn to the following questions framed
by this Court in Milind :
"(1) Whether at
all, it is permissible to hold inquiry 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 entry concerned 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 the State of Maharashtra, even though it is not specifically
mentioned as such?"
1 7 So far as the
question No. 2 is concerned, it has been held that "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".
342 of the Constitution of India reads as under:
Tribes (1) The President may with respect to any State or Union territory, and
where it is a State after consultation with the Governor thereof, by public
notification5 specify the tribes or tribal communities or parts of or groups
within tribes or tribal communities which shall for the purposes of this
Constitution be deemed to be Scheduled Tribes in relation to that State or
Union territory, as the case may be.
(2) Parliament may by
law include in or exclude from the list of Scheduled Tribes specified in a
notification issued under clause (1) any tribe or tribal community or part of
or group within any tribe or tribal community, but save as aforesaid a
notification issued under the said clause shall not be varied by any subsequent
terms of the said provision, the Constitution (Scheduled Tribes) Order, 1950
was issued. The tribe "Halba" finds place in the said order.
however, in the State of Maharashtra comes under `special backward class'.
Their occupation may be the same but it is well-settled that before a person
can obtain a declaration that he is a member of a scheduled tribe, he must be a
member of a tribe. [See Nityanand Sharma v. State of Bihar (1996) 3 SCC 576] The
Parliament, it is trite, alone can amend the law and the schedule for the
purpose of including or excluding therefrom a tribe or tribal community or part
of or group within the same in the State, district or region and the
declaration made by the Parliament is conclusive. For the said purpose, the
court does not have any jurisdiction so as to enable it to substitute any caste
is not correct to contend that the Bombay High Court in Milind Sharad Katware
(supra) was not concerned with the question as to whether Halba - Koshti is a
sub-tribe of Halba or Halbi. It in fact considered the said question in great
depth. It referred to a large number of judgments. The doctrine of stare
decisis was applied.
was applied in a large number of cases. Some of the judgments had been accepted
by the Government. It is in the aforementioned backdrop, this Court in Milind
"31. The High
Court applied the doctrine of stare decisis on the grounds that the decisions
referred to above were considered judgments; even the Government accepted their
correctness in the courts; the State Government independently took the same
view after repeated deliberations for a number of years; taking a contrary view
would lead to chaos, absurd contradictions resulting in great public mischief.
In our view, the High Court was again wrong in this regard. The learned Senior
Counsel for Respondent 1 was not in a position to support this reasoning of the
High Court and rightly so in our opinion. Among the decisions listed above
except the first two decisions, all other decisions were rendered subsequent to
two Constitution Bench judgments (supra) of this Court. The first two judgments
were delivered in 1956 and 1957.
In this view, the High
Court was not right in stating that the decisions were rendered during a long
span of over 34 years by different Benches of different High Courts,
consistently holding that "Halba-Koshti" is "Halba". The
rule of stare decisis is not inflexible so as to preclude a departure therefrom
in any case but its application depends on facts and circumstances of each
case. It is good to proceed from precedent to precedent but it is earlier the
better to give quietus to the incorrect one by annulling it to avoid repetition
or perpetuation of injustice, hardship and anything ex facie illegal, more 2 0
particularly when a precedent runs counter to the provisions of the
Constitution. The first two decisions were rendered without having the benefit
of the decisions of this Court, that too concerning the interpretation of the
provisions of the Constitution..."
It was categorically
held that the High Court was not correct in invoking and applying the doctrine
of stare decisis.
the Bombay High Court proceeded on the basis that the "Halba-Koshtis"
were treated in the region of Vidarbha as "Halbas".
This Court noticed
that the State of Maharashtra had issued a large number of circulars pointing
out that a large number of persons who did not belong to Scheduled Tribe are
taking benefit thereof. It was in the aforementioned premise, this Court opined
that the opinion of the Caste Scrutiny Committee which was constituted in terms
of the decision of this Court in Kumari Madhuri Patil and Another v. Addl.
Commissioner, Tribal Development and Others [(1994) 6 SCC 241] had received the
statutory recognition by the State, stating:
Government issued resolution dated 29-10-1980 in consonance with the
instructions given by the Central Government laying down the guidelines on
which the 2 1 inquiry should be held before issue of the caste certificate.
Another resolution dated 24.2.1981 was also issued for appointing a Scrutiny
Committee to verify whether the caste certificate has been issued to a person
who is really entitled to it in view of the complaints of misuse of
reservational benefits on a large scale. These resolutions were operative as
they had not been repealed. This Court in its judgment dated 19-10-1984 State
of Maharashtra v. Abhay directed that the State of Maharashtra should devise
and frame a more rational method for obtaining much in advance a certificate on
the strength of which a reserved seat is claimed. But the High Court committed
an error in interpreting the scope of the circular dated 31-7-1981 that the
School Leaving Certificate was conclusive of the caste. This interpretation was
plainly inconsistent with the instructions and resolutions stated above.
Further, it may be
also noticed here that the Joint Parliamentary Committee did not make any
recommendation to include "Halba-Koshti"
in the Scheduled
Tribes Order. At any rate the Scheduled Tribes Order must be read as it is
until it is amended under clause (2) of Article 342. In this view also, the
circulars/resolutions/instructions will not help Respondent 1 in any way. Even
otherwise, as already stated above, on facts found and established the
authorities have rejected the claim of Respondent 1 as to the caste
certificate. The power of the High Court under Article 227 of the Constitution
of India, while exercising the power of judicial review against an order of
inferior Tribunal being supervisory and not appellate, the High Court would be
justified in interfering with the conclusion of the Tribunal, only when it
records a finding that the inferior Tribunal's conclusion is based upon
exclusion of some admissible evidence or consideration of some inadmissible
evidence or 2 2 the inferior Tribunal has no jurisdiction at all or that the
finding is such, which no reasonable man could arrive at, on the materials on
The jurisdiction of
the High Court would be much more restricted while dealing with the question
whether a particular caste or tribe would come within the purview of the
notified Presidential Order, considering the language of Articles 341 and 342
of the Constitution. These being the parameters and in the case in hand, the
Committee conducting the inquiry as well as the Appellate Authority, having
examined all relevant materials and having recorded a finding that Respondent 1
belonged to "Koshti" caste and has no identity with
"Halba/Halbi" which is the Scheduled Tribe under Entry 19 of the
Presidential Order, relating to the State of Maharashtra, the High Court
exceeded its supervisory jurisdiction by making a roving and in-depth
examination of the materials afresh and in coming to the conclusion that
could be treated as
"Halbas". In this view the High Court could not upset the finding of
fact in exercise of its writ jurisdiction. Hence, we have to essentially answer
Question 2 also in the negative. Hence it is answered accordingly."
It was furthermore
noticed that even the Central Government had issued several circulars which had
been ignored by the High Court in arriving at the said decision.
of the questions which has been raised before us is as to whether the offer of
appointment made in favour of the respondent No. 1 2 3 by the Maharashtra
Pollution Control Board dated 16.03.1998 is final so as to attract the
direction contained in paragraph 38 of Milind (supra).
foundation arrived at by a committee authorised in this behalf concludes that a
person is not a member of the Scheduled Tribe would remain operative unless set
aside by a superior court. The judgment of the High Court in favour of the
respondent No. 1 was rendered on a wrong premise. The claim of the respondents
may be that he belonged to the Halba tribe but, therefor, no factual foundation
was placed before the High Court. The High Court relied solely on its earlier
decision to hold that Koshti would come within the purview of the Scheduled
Tribe of Halba or Halbi. The decision was rendered in 1988.
maintained by the school where the respondent studied were not placed before
the High Court. Only when the Caste Scrutiny Committee, a statutory committee,
proceeded to enquire into the matter, the truth came out.
We do not mean to
suggest that an opinion formed by the Committee as regards the caste of the
near relative of the applicant would be wholly irrelevant, but, at the same
time, it must be pointed out that only because, by mistake or otherwise, a
member of his family had been 2 4 declared to be belonging to a member of the
Scheduled Tribe, the same by itself would not be conclusive in nature so as to
bind another Committee while examining the case of other members of the family
at some details. If it is found that in granting a certificate in favour of a
member of a family, vital evidences had been ignored, it would be open to the
Committee to arrive at a different finding.
reiterate that to fulfill the constitutional norms, a person must belong to a
tribe before he can stake his claim to be a member of a notified Scheduled
Tribe. When an advantage is obtained by a person in violation of the
constitutional scheme, a constitutional fraud is committed.
of Mr. Savant must be tested on the premise as to whether the principle of res
judicata applies in a case of this nature.
Principle of res
judicata is undoubtedly a salutary principle. Even a wrong decision would
attract the principle of res judicata. The said principle, however, amongst
others, has some exceptions, e.g., when a judgment is passed without
jurisdiction, when the matter involves a pure 2 5 question of law or when the
judgment has been obtained by committing fraud on the court.
In Williams v.
Lourdusamy and Anr. [(2008) 5 SCC 647], this Court stated the law, thus:
principles of res-judicata although provide for a salutary principle that no
person shall be harassed again and again, have its own limitations. In O.S. No.
402 of 1987, the respondent No. 2 was not impleaded as a party.
In his absence
therefore, the issue as to whether respondent No. 2 had entered into an oral
agreement of sale or not could not have been adjudicated upon. The said Court
had no jurisdiction in that behalf. If that was decided in the said suit, the
findings would have been nullities."
legal principles which would govern a case of this nature, are:
(i) A decision
rendered without jurisdiction being a nullity, the principle of res judicata
shall not apply.
(ii) If a fraud has
been committed on the court, no benefit therefrom can be claimed on the basis
of thereof or otherwise.
24. In support of the
first principle, we may at the outset refer to Chief Justice of Andhra Pradesh
and Others v. L.V.A. Dixitulu [(1979) 2 SCC 34] wherein this Court, while
discussing the effect of Section 11 of the CPC on a pure question of law or a decision
given by a court without jurisdiction, opined:
is a pure question of law depending upon the interpretation of Article 371D. If
the argument holds good, it will make the decision of the Tribunal as having
been given by an authority suffering from inherent lack of jurisdiction. Such a
decision cannot be sustained merely by the doctrine of res judicata or estoppel
as urged in this case."
A Three - Judge Bench
of this Court in Ashok Leyland Ltd. v. State of Tamil Nadu and Anr. [(2004)3SCC1],
principle of res judicata is a procedural provision. A jurisdictional question
if wrongly decided would not attract the principle of res judicata. When an
order is passed without jurisdiction, the same becomes a nullity. When an order
is a nullity, it cannot be supported by invoking the procedural principles
like, estoppel, waiver or res judicata."
2 7 [See also Dwarka
Prasad Agarwal (D) By LRs. and Anr. v. B.D. Agarwal and Ors. ( 2003 ) 6 SCC
230, Union of India v. Pramod Gupta (2005) 12 SCC 1 and National Institute of
Technology and Ors. v. Niraj Kumar Singh (2007) 2 SCC 481]
25. So far as the
second principle, noticed by us, is concerned, there is no dearth of authority.
Fraud vitiates all
solemn acts. When an order has been obtained by practising fraud on the court,
it would be a nullity.
Mahijibhai Solanki v. State of Gujarat and Ors.
[(2008) 3 SCC 556],
this Court held:
"It is now a
well settled principle that fraud vitiates all solemn acts. If an order is obtained
by reason of commission of fraud, even the principles of natural justice are
not required to be complied with for setting aside the same."
It was further
2 8 "In T.
Vijendradas and Anr. v. M. Subramanian and Ors., this Court held;
21. ...When a fraud
is practiced on a court, the same is rendered a nullity. In a case of nullity,
even the principles of natural justice are not required to be complied with.
[Kendriya Vidyalaya Sangathan and Ors. v. Ajay Kumar Das and Ors. & A.
Umarani v. Registrar, Cooperative societies and Ors.]
22. Once it is held
that by reason of commission of a fraud, a decree is rendered to be void
rendering all subsequent proceedings taken pursuant thereto also nullity, in
our opinion, it would be wholly inequitable to confer a benefit on a party, who
is a beneficiary thereunder...."
In K.D. Sharma v.
Steel Authority of India Ltd. and Ors. [2008 (10) SCALE 227], this Court
was also made to a recent decision of this Court in A.V. Papayya Sastry and
Ors. v. Govt. of A.P. and Ors. (2007) 4 SCC 221. Considering English and Indian
cases, one of us (C.K. Thakker, J.) stated:
It is thus settled
proposition of law that a judgment, decree or order obtained by playing fraud
on the Court, Tribunal or Authority is a nullity and non est in the eye of law.
Such a judgment, decree or order --by the first Court or by the final Court--
has to be treated as nullity by every Court, superior or inferior. It can be 2
9 challenged in any Court, at any time, in appeal, revision, writ or even in
17. The Court defined
fraud as an act of deliberate deception with the design of securing something
by taking unfair advantage of another. In fraud one gains at the loss and cost
of another. Even the most solemn proceedings stand vitiated if they are
actuated by fraud.
Fraud is thus an
extrinsic collateral act which vitiates all judicial acts, whether in rem or in
26. The order dated
11.08.1988, thus, would not operate as a res judicata so as to disable it from
considering the merit of the case of the respondent No. 1 by the State of
Maharashtra or Maharashtra Pollution Control Board afresh. The decision of the
High Court ex facie is unsustainable.
27. We may at this
juncture notice some decisions of this Court where the question at hand has
In State of
Maharashtra and Others v. Ravi Prakash Babulalsing Parmar and Another [(2007) 1
SCC 80], this Court held:
3 0 "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, 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
with respect, fail to appreciate the approach of the High Court as it proceeded
on the premise that once the surname of the respondent tallied with the name of
the tribe, which finds mention in one or the other entries of the Schedule
appended to the 1976 Order, the same must be treated to be sacrosanct and no
enquiry in relation to the correctness of the said certificate can be gone into
by any committee. The observations and directions of the High Court, in our
considered opinion, were not only contrary to the judgments of the Court but
also fall short of the ground realities.
Arvind Savant, the learned Senior Counsel, would place strong reliance on a
decision of this Court in Palghat Jilla Thandan Samudhaya Samrakshna Samithi
and in particular paras 18 and 19 thereof, which read as under: (SCC p.365)
"18. These judgments leave no doubt that the Scheduled Castes Order has to
be applied as it stands and no enquiry can be held or evidence let in to
determine whether or not 3 1 some particular community falls within it or
outside it. No action to modify the plain effect of the Scheduled Castes Order,
except as contemplated by Article 341, is valid.
19. The Thandan
community in the instant case having been listed in the Scheduled Castes Order
as it now stands, it is not open to the State Government or, indeed, to this
Court to embark upon an enquiry to determine whether a section of
Ezhavas/Thiyyas which was called Thandan in the Malabar area of the State was
excluded from the benefits of the Scheduled Castes Order."
In Addl. General
Manager - Human Resource, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna
Burde [(2007) 5 SCC 336], this Court held:
"14. In the case
in hand the respondent got appointment on 31-5-1982 on a post, which was
reserved for a member of Scheduled Tribe.
receiving complaints the employer referred the matter to the District
Collector, Nagpur and also to the Scrutiny Committee in March 1991.
subsequent period has been spent in making enquiry and in litigation as the
respondent filed three writ petitions. In view of the principle laid down by
this Court we are clearly of the opinion that his services were rightly
terminated by the appellant and the High Court was in error in directing his
reinstatement. The order passed by the High Court, therefore, has to be set
3 2 In State of
Maharashtra & Ors. v. Sanjay K. Nimje [2007(2) SCALE 214], it was held that
a person cannot get a benefit to which he is not otherwise entitled to.
attention has been drawn to the fact that the appellant herein had filed
applications for leave to file two special leave applications; one against the
order dated 26.06.2006 and another against the order dated 11.08.1988. Whereas
leave has been granted and notice had been issued on 16.04.2007 in the order
26.06.2006, the same has been declined in respect of the order dated
of the learned counsel is that the order dated 11.08.1988 has even been given
the stamp of finality by this Court.
We are unable to
accept the said contention. Apart from the fact that the petition for leave
against the order dated 11.08.1988 was dismissed on the ground of delay alone,
the appellant herein is affected by the impugned judgment of the High Court
dated 26.06.2006. When the order dated 11.08.1988 was passed, the judgment of
the Bombay High Court was prevailing. Appellant was not in picture at that
point of time.
3 3 A question,
furthermore, arises as to whether in a disposed of writ petition, a separate
application was maintainable although cause of action therefor arose
subsequently. It is urged that the said application was filed for implementing
the earlier order of the court. It could not be so as in the meantime the Caste
Scrutiny Committee had already taken a decision. Subsequent events of grave
importance had taken place which could not be ignored.
Government had issued circulars. The Maharashtra Pollution Control Board had
also issued circulars. Appellant's claim for grant of certificate was rejected
in the year 1997. If the respondent No. 1 was aggrieved thereby, he could have
filed an appropriate writ petition before the High Court immediately
thereafter. He did not choose to do so. Only when the question of grant of
promotion arose, he sought to get his claim of being promoted as a member of
the Scheduled Tribe.
It was in that sense,
it was obligatory on the part of the respondent No. 1 to question the validity
of the circulars issued by the Maharashtra Pollution Control Board. A separate
writ petition therefor should have been filed. The Maharashtra Pollution
Control Board as also the Caste 3 4 Scrutiny Committee was required to be
impleaded therein. When the order dated 11.08.1988 was passed by the High
Court, no Caste Scrutiny Committee existed. It came into force only after
pronouncement of judgment of this Court in Kumari Madhuri Patil (supra).
Government also enacted the Maharashtra Scheduled Caste, 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.
We, therefore, reject
the said contention.
Maharashtra Pollution Control Board in its affidavit categorically stated that
the appointment of the respondent No. 1 cannot be treated to be final as no
caste certificate had been issued by the Statutory Committee.
must now deal with the question of locus standi. A special leave petition
ordinarily would not have been entertained at the instance of the appellant.
Validity of appointment or otherwise on the basis of a 3 5 caste certificate
granted by a committee is ordinarily a matter between the employer and the
employee. This Court, however, when a question is raised, can take cognizance
of a matter of such a grave importance suo motu. It may not treat the special
leave petition as a public interest litigation, but, as a public law
litigation. It is, in a proceeding of that nature, permissible for the court to
make a detailed enquiry with regard to the broader aspects of the matter
although it was initiated at the instance of a person having a private
interest. A deeper scrutiny can be made so as to enable the court to find out
as to whether a party to a lis is guilty of commission of fraud on the
Constitution. If such an enquiry subserves the greater public interest and has
a far reaching effect on the society, in our opinion, this Court will not shirk
its responsibilities from doing so.
We could have
dismissed this application on the simple ground that the appellant has no locus
standi. We did not do so because as a constitutional court we felt it to be our
duty to lay down the law correctly so that similar mistakes are not committed
in future. Apart from the general power of the superior courts vested in it
under Article 226 or Article 32 of the Constitution of India, this Court is
bestowed with a greater responsibility by the makers of the Constitution in
terms of 3 6 Articles 141 and 142 of the Constitution. Decisions are galore
wherein this Court unhesitatingly exercised such jurisdiction to resort to the
creative interpretation to arrive at a just result in regard to the societal
and/ or public interest. We thought that it is a case of that nature.
may notice that recently such a legal principle has been considered by this
court in Indian Bank v. Godhara Nagrik Cooperative Credit Society Ltd. and
Another [2008 (7) SCALE 363].
This Court, however,
while laying down the law suitably mould the relief so as to do complete
justice between the parties.
Sandeep Subhash Parate v. State of Maharashtra and Others [(2006) 7 SCC 501],
this Court in the matter of grant of relief applied the doctrine of
"15. We do not
find any lack of bona fides 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 the 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 3 7 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
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 plea
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, Respondent 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."
Union of India v. Dattatray S/o Namdeo Mendhekar and Others [(2008) 4 SCC 612],
this Court held:
(supra)related to a Medical College admission. The question that arose for 3 8
consideration in that case was whether it was open to the State Government or
Courts or other authorities to modify, amend or alter the list of Scheduled
Tribes and in particular whether the "Halba-Koshti" was a
sub-division of 'Halba' Tribe. This Court held that it was not permissible to
amend or alter the list of Schedule Tribes by including any sub-divisions or
otherwise. On facts, this Court found that the respondent therein had been
admitted in medical course in ST category, more than 15 years back; that though
his admission deprived a scheduled tribe student of a medical seat, the benefit
of that seat could not be offered to scheduled tribe student at that distance
of time even if respondent's admission was to be annulled; and that if his
admission was annulled, it will lead to depriving the services of a doctor to
the society on whom the public money had already been spent. In these peculiar
circumstances, this Court held that the decision will not affect the degree
secured by respondent or his practice as a doctor but made it clear that he
could not claim to belong to a Scheduled Tribe. But the said decision has no
application to a case which does not relate to an admission to an educational
institution, but relates to securing employment by wrongly claiming the benefit
of reservation meant for Schedule Tribes. 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."
3 9 We do not intend
to do so in this case as the respondent No. 1 is in service for a long time and
the Bombay High Court allowed the writ petition filed by him way back in 1988.
our jurisdiction under Article 142 of the Constitution of India, keeping in
view the long history of the case and its backdrop, we are of the opinion that
whereas it would not be proper for us to disturb the very appointment of the
appellant but it must be declared that his appointment shall be treated to be
that of a general category in the matter of promotion or otherwise. He shall
not be eligible to get any benefit as a member of a Scheduled Tribe.
the reasons aforementioned, the appeal is allowed with the aforementioned
directions. In the facts and circumstances of the case, there shall be no order
as to costs.
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