Service matter - Caste certificate - Schedule Tribe Halba - the 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, ‘2000 Act’) - Termination of service - Tribunal reinstated as they shall not get any benefit of reservation after 28.11.2000 as per Act but not retrospective - single judged confirmed the same - D.B bench negatived the same basing on Dattatreya 3 bench judge of Apex court - Apex court held that since Dattatreya not overruled the number of judgments of two benches of Apex court who order for reinstatement when there was no fraud on the employee in getting job on reservation and obtaining caste certificate - and as the Dattaterya case was based only on the fraud played by employee in obtaining caste certificate - Apex court set aside the D.B. bench high court judgment and order for reinstatement with a clause that she will not get any promotions on the base of reservation as mentioned in Maharashtra Act 2000 =
Can it therefore seriously be contended that a person who has honestly, in contradistinction with falsely, claimed consanguinity with a certain group which was later on found not to belong to an envisaged Scheduled Tribe but to a special backward class be visited with termination of her employment? =
Whilst “Caste Certificate” has been defined in Section
2(a) of the 2000 Act, “False Caste Certificate” has not been dealt
with in the Definitions clause. There is always an element of
deceitfulness, in order to derive unfair or undeserved benefit
whenever a false statement or representation or stand is adopted by
the person concerned. An innocent statement which later transpires to
be incorrect may be seen as false in general sense would normally not
attract punitive or detrimental consequences on the person making it,
as it is one made by error. An untruth coupled with a dishonest
intent however requires legal retribution. It appears to us that
Section 10 applies in the Dattatray mould only. It was obviously for
this reason that in Vilas, Sema J, was of the opinion that the 2000
Act did not apply to the facts before it whereas Sirpurkar J, after
concurring with Sema J, granted protection albeit under Article 142 of
the Constitution of India. In Nimje another Two-Judge Bench held that
Government Resolution dated 15.6.1995 would continue to apply even
after the passing of the 2000 Act so long as the appointment had taken
place prior to 1995. There is, therefore, palpable wisdom in the
Office Memorandum dated 10.8.2010 of the Government of India, Ministry
of Personnel, Public Grievances and Pensions, Department of Personnel
& Training to the effect that “it has been decided that the persons
belonging to the ‘Halba Koshti/Koshti’ caste who got appointment
against vacancies reserved for the Scheduled Tribes on the basis of
Scheduled Tribe certificates, issued to them by the competent
authority, under the Constitution (Scheduled Tribes) Order, 1950 (as
amended from time to time) relating to the State of Maharashtra and
whose appointments had become final on or before 28.11.2000, shall not
be affected. However, they shall not get any benefit of reservation
after 28.11.2000.”
8. The Appellant before us has been in service since 6.11.1981 on the
strength of her claim of consanguinity to ‘Halba Scheduled Tribe’
duly predicated on a Certificate dated 8.7.1974 issued by the
Competent Authority.
Avowedly she was appointed in a vacancy
earmarked against the Scheduled Tribe category. She was confirmed
as Assistant Teacher with effect from 1.1.1984. Respondent nos.1
and 2, by order dated 17.9.1989 appointed the Appellant as
Assistant Head Mistress.
Thereafter on 28.4.1994 she was promoted
as Head Mistress by an order of even date, subject to production of
Caste Validity Certificate.
It is not clear when the certificate
produced by the Appellant was referred to the Caste Scrutiny
Committee, Nagpur for verification, but the said Committee by Order
dated 20.8.2003 held it to be invalid.
The learned Single Judge of
the High Court of Judicature at Bombay, Nagpur Bench granted
protection in service on the basis of Government Resolution dated
15.6.1995 by his order dated 2.9.2003 in Writ Petition No.3500 of
2003.
Protracted litigation thereafter ensued eventually resulting
in the filing of another Writ Petition No.4532 of 2004 in which a
learned Single Judge by order dated 11.11.2009 set aside the
reinstatement order passed by the School Tribunal, Nagpur which
came to be affirmed by the Division Bench in the impugned Order
which was of the opinion that Dattatray prohibited the extension of
any protection to the Appellant. Having come to that conclusion,
the Division Bench did not think it necessary to consider the
plethora of precedents, albeit of Two-Judge Benches where
protection had in fact been granted. Be that as it may, we think
that since there was no falsity in the claim of the Appellant and
therefore that she cannot be viewed as having filed a ‘false’ Caste
Certificate, the rigours of Section 10 of the 2000 Act would not
apply to her case. A perusal of the Order of the Scheduled Tribe
Caste Certificate Committee, Nagpur shows that the Committee was
satisfied that her claim to the caste of ‘Gadwal Koshti’ was
correct but that she did not belong to ‘Halba’ Scheduled Tribe.
Government Resolution dated 15.6.1995 specifically declares that
the following were basically backward in social, economic and
educational viewpoint and were therefore “special backward class”
vide Government Resolution dated 7.12.1994 :
“Sr. No. Name of the Caste
1. …. …. …. ….
2. …. …. …. ….
3. (1) Koshti (2) Halba Koshti (3) Halba Caste (4)
Sali (5) Ladkoshti (6) Gadwal Koshti (7) Deshkar (8)
Salewar (9) Padmashali (10) Dwang (11) Kachi Dhande
(Glass occupation) (12) Patwos (13) Satpal (14) Sade
(15) Dhankoshti.”
[Emphasis supplied]
9. It requires specialised bodies such as Caste Scrutiny Committees,
specialised lawyers, seasoned bureaucrats etc. to decipher which
category a relatively backward, or ostracized or tribal person
falls in. Can it therefore seriously be contended that a person
who has honestly, in contradistinction with falsely, claimed
consanguinity with a certain group which was later on found not to
belong to an envisaged Scheduled Tribe but to a special backward
class be visited with termination of her employment? We think that
that is not the intent of the law, and certainly was not what the
Three-Judge Bench was confronted with in Dattatray. In our
opinion, therefore, the Appellant should have been debarred from
any further advantage that would enure to persons belonging to the
‘Halba’ Tribe.
10. Accordingly, we direct reinstatement of the Appellant in service
but without any back wages. With the passage of time it is
possible that there may be another incumbent as Head Mistress of
the Respondent No.1-School and we think that it would not be
equitable to remove such person. However, if this post falls
vacant before the Appellant reaches the age of retirement or
superannuation she shall be re-appointed to that post but with no
further promotion as a Scheduled Tribe candidate unless she is
otherwise entitled as a special backward class candidate. The
Appeal stands disposed of accordingly. The parties shall bear
their respective costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10997 OF 2013
[Arising out of S.L.P.(C)No.2680 of 2010]
Shalini …..Appellant
Versus
New English High Sch. Assn. & Ors. …..Respondents
J U D G M E N T
VIKRAMAJIT SEN, J.
1. Leave granted. This Appeal challenges the Order of the Division
Bench of the High Court of Judicature at Bombay, Nagpur Bench
passed on 25.11.2009 in L.P.A. No.527 of 2009 affirming the
Order of the learned Single Judge who had dismissed the
Appellant’s Writ Petition essentially on the opinion of the
Three-Judge Bench in Union of India v. Dattatray (2008) 4 SCC
612.
The Order impugned before the learned Single Judge was
that of the School Tribunal, Nagpur which had granted
reinstatement of the Appellant with continuity of service and
full back wages.
The Appellant had been employed as an
Assistant Teacher against a vacancy earmarked for Scheduled
Tribe candidate, she having filed a Caste Certificate dated
8.7.1974 issued by the Competent Authority testifying her to
belong to the “Halba Scheduled Tribe Category”.
The question
before us is indeed a vexed one, as are all conundrums arising
out of claims for Scheduled Caste or Scheduled Tribe status and
resultant benefits. The confusion is made worst confounded
because of exclusions or inclusions of certain castes or classes
of people keeping only electoral advantages in mind.
Retrospectivity is inherent in subsequent enumerations under
Articles 341 and 342 since those selection are immutable or
unalterable; all change therefore, is only clarificatory in
content, because the endeavour of Parliament is to make the
enumerations more detailed by mentioning sub-castes or the
synonyms of the selected castes and tribes.
The inclusion of
new castes/tribes was intended by the framers of the
Constitution to be impermissible, in order “to eliminate any
kind of political factors having a play in the matter of the
disturbance in the Schedule so published by the President” as
per the Constituent Assembly oration of Dr. Ambedkar, which
stands accepted by the Apex Court at least twice, as in State of
Maharashtra v. Milind (2001) 1 SCC 4 and E.V. Chinnaiah v. State
of A.P. (2005) 1 SCC 394.
We have to decide
whether the Appellant’s employment was justifiably terminated because a Caste Scrutiny Committee after a passage of several decades, found her disentitled to claim the benefits enuring to Halbas.
2. In R. Vishwanatha Pillai v. State of Kerala (2004) 2 SCC 105,
this Court found that the caste certificate procured by the
Appellant was false ab initio. It repelled the argument that a
fresh notice should have been issued in compliance with Article
311 of the Constitution of India as a prelude to the imposition
of any punishment postulated by that provision, on the premise
that the appointment itself was illegal and void, thereby
disentitling the Appellant from Constitutional protection.
This
Court also rejected the plea that since the Appellant had put in
27 years of service the order of dismissal should be converted
to compulsory retirement or removal from service so that
pensionary benefits could be availed of.
The question which
immediately begs to be cogitated upon is
whether these harsh
consequences should nevertheless ensue and obtain even if no
fraud, mendacity or manipulation is ascribable to the person who
has claimed and enjoyed Scheduled Caste advantages.
3. This slant in the situation arose in State of Maharashtra v. Om
Raj (2007) 14 SCC 488 whereby several appeals came to be decided
simply on the basis of Milind, the gist of which was that
protection so far as the benefit then claimed on the strength of
being Koshtis would be preserved, but the incumbent would not be
entitled to any further benefit in the future. To remove
confusion, State of Maharashtra v. Viswanath [C.A.No.7375 of
2000] has also been decided in Om Raj with other appeals. In
Punjab National Bank v. Vilas (2008) 14 SCC 545,
the employee
had provided a Halba Scheduled Tribe Certificate and gained
employment in 1989 which was invalidated by the Scheduled Tribe
Scrutiny Committee leading to the termination of the
Respondent’s service by an order dated 4.2.2002. Drawing from
the previous decision in Milind this Court reiterated that
Scheduled Tribe status had not been conferred either on Halba
Koshti or Koshti but on ‘Halba’ alone.
This Court, thus, once
again protected the employment of the Respondent but clarified
that he would not be entitled to claim further promotion in the
Scheduled Tribe category.
It was also declared that the
Government Resolution dated 30.6.2004 would apply to all
employment with the “government/semi-government and Boards,
Municipalities, Municipal Corporations, District Councils,
Cooperative Banks, government undertakings, etc.”
4. Almost one year later this very question, which has led to a
deluge of litigation already, received the attention of a Three-
Judge Bench in Dattatray.
The Respondent, claiming to belong to
the Scheduled Tribe ‘Halba’, was appointed as Assistant
Professor of Psychiatry in G.B. Pant Hospital, New Delhi against
a post reserved for Scheduled Tribes.
A verification of the
Certificate of Scheduled Tribe disclosed that he did not belong
to the Halba Tribe.
The second challenge to this finding,
before the High Court, also proved to be futile.
However, on
what has been held to be a misinformed reading of the
Constitution Bench decision in Milind, the High Court thought it
fit to protect his service.
The Three-Judge Bench referred to
two other decisions of this Court namely Bank of India v.
Avinash D. Mandivikar (2005) 7 SCC 690 and BHEL v. Suresh
Ramkrishna Burde (2007) 5 SCC 336 and noting that the employee
had falsely claimed that he belonged to the Scheduled
Tribe/Halba, set aside the judgment of the High Court.
Whilst
it permitted settlement of employee-Doctor’s terminal benefits
it placed an embargo on his receiving any pensionary benefits.
This conclusion was arrived at by the Three-Judge Bench without
noting State of Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481
where the impugned Order passed by the Division Bench of the
High Court of Judicature at Bombay directing the reinstatement
of a person belonging to the ‘Koshti’ Tribe, (not even ‘Koshti-
Halbas’) was set aside.
5. It is evident that there is a plethora of precedents on this
aspect of the law, and perhaps for this reason Counsel for the
parties were remiss in drawing our attention in the present
proceedings to the detailed judgment
in Kavita Solunke v. State of Maharashtra (2012) 8 SCC 430, in which one of us, Thakur J,
had analysed as many as eleven precedents including those
discussed above. After reviewing all the judgments it was held,
in the facts and circumstances of that case, that since that
party had not intentionally or with dishonest intent fabricated
particulars of a scheduled tribe with a view to obtain an
undeserved benefit in the matter of appointment, she was
entitled to protection against ouster from service, but no other
benefit. In view of the comprehensive yet concise consideration
of case law in Solunke, any further analysis would make the
present determination avoidably prolix, and therefore our
endeavour will be to cull out the principles which would be
relevant for deciding suchlike conundrums.
These are -
(a) If
any person has fraudulently claimed to belong to a Scheduled
Caste or Scheduled Tribe and has thereby obtained employment, he
would be disentitled from continuing in employment. The rigour
of this conclusion has been diluted only in instances where the
Court is confronted with the case of students who have already
completed their studies or are on the verge of doing so, towards
whom sympathy is understandably extended;
(b) Where there is
some confusion concerning the eligibility to the benefits
flowing from Scheduled Caste or Scheduled Tribe status, such as
issuance of relevant certificates to persons claiming to be
‘Koshtis’ or ‘Halba Koshtis’ under the broadband of ‘Halbas’,
protection of employment will be available with the rider that
these persons will thereafter be adjusted in the general
category thereby rendering them ineligible to further benefits
in the category of Scheduled Caste or Scheduled Tribe as the
case may be;
(c) this benefit accrues from the decision of this
Court inter alia in Raju Ramsing Vasave v. Mahesh Deorao
Bhivapurkar (2008) 9 SCC 54 which was rendered under Article 142
of the Constitution of India. Realising the likely confusion in
the minds of even honest persons the Resolutions/Legislation
passed by the State Governments should spare some succour to
this section of persons. This can be best illustrated by the
fact that it was in Milind that the Constitution Bench
clarified that ‘Koshtis’ or ‘Halba-Koshtis’ were not entitled to
claim benefits as Scheduled Tribes and it was the ‘Halbas’ alone
who were so entitled. A perusal of the judgment in Vilas by
Sirpurkar J, as well as Solunke makes it clear that this
protection is available by virtue of the decisions of this
Court; it is not exclusively or necessarily predicated on any
Resolution or Legislation of the State Legislature;
(d) Where a
Resolution or Legislation exists, its raison d’etre is that
protection is justified in presenti (embargo on removal from
service or from reversion) but not in futuro (embargo on
promotions in the category of Scheduled Caste or Scheduled
Tribe).
6. A reading of the impugned Judgment requires us to clarify an
important aspect of the doctrine of precedence. Dattatray is
the only Three-Judge Bench decision, and therefore indisputably
holds pre-eminence. However, by that time several decisions had
already been rendered by Two-Judge Benches some of which have
already been discussed above. It was within the competence of
Dattatray Bench to overrule the other Two-Judge Benches.
Despite the fact that it has not done so the per incuriam
principle would not apply to the decision because it was a
larger Bench. However, no presumption can be drawn that the
Dattatray Three-Judge Bench decision was of the opinion that the
earlier Two-Judge Bench decisions had articulated an incorrect
interpretation of the law. That being so, the Two-Judge Bench
views may still be relied upon so long as the ratio of Dattatray
is not directly in conflict with their ratios. It is therefore
imperative to distill the ratio of Dattatray, which we have
already discussed in some detail.
We need only reiterate
therefore that the Three-Judge Bench was perceptibly incensed
with the falsity of the claim of the employee to Scheduled
Caste/Scheduled Tribe status.
That was not a case where a
legitimate claim of consanguinity to a ‘Halba Koshti’, ‘Koshti’
or ‘Gadwal Koshti’ etc. had been made, which was at the
inception point considered to be eligible to beneficial
treatment admissible to Scheduled Tribes, later to be reversed
by the Constitution Bench decision in Milind and declared to be
the entitlement of Halbas only.
It is not the intent of law to
punish an innocent person and subject him to extremely harsh
treatment.
That is why this Court has devised and consistently
followed that taxation statutes, which almost always work to the
pecuniary detriment of the assessee, must be interpreted in
favour of the assessee.
Therefore, as we see it, on one bank of
the Rubicon are the cases of dishonest and mendacious persons
who have deliberately claimed consanguinity with Scheduled
Castes or Scheduled Tribes etc.
whereas on the other bank are
those marooned persons who honestly and correctly claimed to
belong to a particular Scheduled Caste/Scheduled Tribe but were
later on found by the relevant Authority not to fall within the
particular group envisaged for protected treatment. In the
former group, persons would justifiably deserve the immediate
cessation of all benefits, including termination of services.
In the latter, after the removal of the nebulousness and
uncertainty, while the services or benefits already enjoyed
would not be negated, they would be disentitled to claim any
further or continuing benefit on the predication of belonging to
the said Scheduled Caste/Scheduled Tribe.
7. We must now reflect upon the Government Resolution dated
15.6.1995 passed by the Government of Maharashtra. Virtually it
grants status quo as regards employment inasmuch as it states
that those persons who, on the basis of Caste Certificates,
already stand appointed or promoted in the Government or Semi-
Government, shall not be demoted or removed from service.
Thereafter, the 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, ‘2000 Act’) was passed by the Legislature and received
the assent of the President. Section 10 thereof reads thus :
“10. 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 of Special
Backward Category secures admission in any education 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 forthwith.
(2) 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 arrears of land revenue.
(3) Notwithstanding anything contained in any Act for the
time being in force, any Degree, Dilploma 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.
(4) Notwithstanding 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 has 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 Backaward 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.”
In essence, the Section cancels with pre-emptive effect any benefit
that may have been derived by a person based on a false caste
certificate. Whilst “Caste Certificate” has been defined in Section
2(a) of the 2000 Act, “False Caste Certificate” has not been dealt
with in the Definitions clause. There is always an element of
deceitfulness, in order to derive unfair or undeserved benefit
whenever a false statement or representation or stand is adopted by
the person concerned. An innocent statement which later transpires to
be incorrect may be seen as false in general sense would normally not
attract punitive or detrimental consequences on the person making it,
as it is one made by error. An untruth coupled with a dishonest
intent however requires legal retribution. It appears to us that
Section 10 applies in the Dattatray mould only. It was obviously for
this reason that in Vilas, Sema J, was of the opinion that the 2000
Act did not apply to the facts before it whereas Sirpurkar J, after
concurring with Sema J, granted protection albeit under Article 142 of
the Constitution of India. In Nimje another Two-Judge Bench held that
Government Resolution dated 15.6.1995 would continue to apply even
after the passing of the 2000 Act so long as the appointment had taken
place prior to 1995. There is, therefore, palpable wisdom in the
Office Memorandum dated 10.8.2010 of the Government of India, Ministry
of Personnel, Public Grievances and Pensions, Department of Personnel
& Training to the effect that “it has been decided that the persons
belonging to the ‘Halba Koshti/Koshti’ caste who got appointment
against vacancies reserved for the Scheduled Tribes on the basis of
Scheduled Tribe certificates, issued to them by the competent
authority, under the Constitution (Scheduled Tribes) Order, 1950 (as
amended from time to time) relating to the State of Maharashtra and
whose appointments had become final on or before 28.11.2000, shall not
be affected. However, they shall not get any benefit of reservation
after 28.11.2000.”
8. The Appellant before us has been in service since 6.11.1981 on the
strength of her claim of consanguinity to ‘Halba Scheduled Tribe’
duly predicated on a Certificate dated 8.7.1974 issued by the
Competent Authority.
Avowedly she was appointed in a vacancy
earmarked against the Scheduled Tribe category. She was confirmed
as Assistant Teacher with effect from 1.1.1984. Respondent nos.1
and 2, by order dated 17.9.1989 appointed the Appellant as
Assistant Head Mistress.
Thereafter on 28.4.1994 she was promoted
as Head Mistress by an order of even date, subject to production of
Caste Validity Certificate.
It is not clear when the certificate
produced by the Appellant was referred to the Caste Scrutiny
Committee, Nagpur for verification, but the said Committee by Order
dated 20.8.2003 held it to be invalid.
The learned Single Judge of
the High Court of Judicature at Bombay, Nagpur Bench granted
protection in service on the basis of Government Resolution dated
15.6.1995 by his order dated 2.9.2003 in Writ Petition No.3500 of
2003.
Protracted litigation thereafter ensued eventually resulting
in the filing of another Writ Petition No.4532 of 2004 in which a
learned Single Judge by order dated 11.11.2009 set aside the
reinstatement order passed by the School Tribunal, Nagpur which
came to be affirmed by the Division Bench in the impugned Order
which was of the opinion that Dattatray prohibited the extension of
any protection to the Appellant. Having come to that conclusion,
the Division Bench did not think it necessary to consider the
plethora of precedents, albeit of Two-Judge Benches where
protection had in fact been granted. Be that as it may, we think
that since there was no falsity in the claim of the Appellant and
therefore that she cannot be viewed as having filed a ‘false’ Caste
Certificate, the rigours of Section 10 of the 2000 Act would not
apply to her case. A perusal of the Order of the Scheduled Tribe
Caste Certificate Committee, Nagpur shows that the Committee was
satisfied that her claim to the caste of ‘Gadwal Koshti’ was
correct but that she did not belong to ‘Halba’ Scheduled Tribe.
Government Resolution dated 15.6.1995 specifically declares that
the following were basically backward in social, economic and
educational viewpoint and were therefore “special backward class”
vide Government Resolution dated 7.12.1994 :
“Sr. No. Name of the Caste
1. …. …. …. ….
2. …. …. …. ….
3. (1) Koshti (2) Halba Koshti (3) Halba Caste (4)
Sali (5) Ladkoshti (6) Gadwal Koshti (7) Deshkar (8)
Salewar (9) Padmashali (10) Dwang (11) Kachi Dhande
(Glass occupation) (12) Patwos (13) Satpal (14) Sade
(15) Dhankoshti.”
[Emphasis supplied]
9. It requires specialised bodies such as Caste Scrutiny Committees,
specialised lawyers, seasoned bureaucrats etc. to decipher which
category a relatively backward, or ostracized or tribal person
falls in. Can it therefore seriously be contended that a person
who has honestly, in contradistinction with falsely, claimed
consanguinity with a certain group which was later on found not to
belong to an envisaged Scheduled Tribe but to a special backward
class be visited with termination of her employment? We think that
that is not the intent of the law, and certainly was not what the
Three-Judge Bench was confronted with in Dattatray. In our
opinion, therefore, the Appellant should have been debarred from
any further advantage that would enure to persons belonging to the
‘Halba’ Tribe.
10. Accordingly, we direct reinstatement of the Appellant in service
but without any back wages. With the passage of time it is
possible that there may be another incumbent as Head Mistress of
the Respondent No.1-School and we think that it would not be
equitable to remove such person. However, if this post falls
vacant before the Appellant reaches the age of retirement or
superannuation she shall be re-appointed to that post but with no
further promotion as a Scheduled Tribe candidate unless she is
otherwise entitled as a special backward class candidate. The
Appeal stands disposed of accordingly. The parties shall bear
their respective costs.
............................................J.
[T.S. THAKUR]
............................................J.
[VIKRAMAJIT SEN]
New Delhi
December 12, 2013.
Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (for short, ‘2000 Act’) - Termination of service - Tribunal reinstated as they shall not get any benefit of reservation after 28.11.2000 as per Act but not retrospective - single judged confirmed the same - D.B bench negatived the same basing on Dattatreya 3 bench judge of Apex court - Apex court held that since Dattatreya not overruled the number of judgments of two benches of Apex court who order for reinstatement when there was no fraud on the employee in getting job on reservation and obtaining caste certificate - and as the Dattaterya case was based only on the fraud played by employee in obtaining caste certificate - Apex court set aside the D.B. bench high court judgment and order for reinstatement with a clause that she will not get any promotions on the base of reservation as mentioned in Maharashtra Act 2000 =
Can it therefore seriously be contended that a person who has honestly, in contradistinction with falsely, claimed consanguinity with a certain group which was later on found not to belong to an envisaged Scheduled Tribe but to a special backward class be visited with termination of her employment? =
Whilst “Caste Certificate” has been defined in Section
2(a) of the 2000 Act, “False Caste Certificate” has not been dealt
with in the Definitions clause. There is always an element of
deceitfulness, in order to derive unfair or undeserved benefit
whenever a false statement or representation or stand is adopted by
the person concerned. An innocent statement which later transpires to
be incorrect may be seen as false in general sense would normally not
attract punitive or detrimental consequences on the person making it,
as it is one made by error. An untruth coupled with a dishonest
intent however requires legal retribution. It appears to us that
Section 10 applies in the Dattatray mould only. It was obviously for
this reason that in Vilas, Sema J, was of the opinion that the 2000
Act did not apply to the facts before it whereas Sirpurkar J, after
concurring with Sema J, granted protection albeit under Article 142 of
the Constitution of India. In Nimje another Two-Judge Bench held that
Government Resolution dated 15.6.1995 would continue to apply even
after the passing of the 2000 Act so long as the appointment had taken
place prior to 1995. There is, therefore, palpable wisdom in the
Office Memorandum dated 10.8.2010 of the Government of India, Ministry
of Personnel, Public Grievances and Pensions, Department of Personnel
& Training to the effect that “it has been decided that the persons
belonging to the ‘Halba Koshti/Koshti’ caste who got appointment
against vacancies reserved for the Scheduled Tribes on the basis of
Scheduled Tribe certificates, issued to them by the competent
authority, under the Constitution (Scheduled Tribes) Order, 1950 (as
amended from time to time) relating to the State of Maharashtra and
whose appointments had become final on or before 28.11.2000, shall not
be affected. However, they shall not get any benefit of reservation
after 28.11.2000.”
8. The Appellant before us has been in service since 6.11.1981 on the
strength of her claim of consanguinity to ‘Halba Scheduled Tribe’
duly predicated on a Certificate dated 8.7.1974 issued by the
Competent Authority.
Avowedly she was appointed in a vacancy
earmarked against the Scheduled Tribe category. She was confirmed
as Assistant Teacher with effect from 1.1.1984. Respondent nos.1
and 2, by order dated 17.9.1989 appointed the Appellant as
Assistant Head Mistress.
Thereafter on 28.4.1994 she was promoted
as Head Mistress by an order of even date, subject to production of
Caste Validity Certificate.
It is not clear when the certificate
produced by the Appellant was referred to the Caste Scrutiny
Committee, Nagpur for verification, but the said Committee by Order
dated 20.8.2003 held it to be invalid.
The learned Single Judge of
the High Court of Judicature at Bombay, Nagpur Bench granted
protection in service on the basis of Government Resolution dated
15.6.1995 by his order dated 2.9.2003 in Writ Petition No.3500 of
2003.
Protracted litigation thereafter ensued eventually resulting
in the filing of another Writ Petition No.4532 of 2004 in which a
learned Single Judge by order dated 11.11.2009 set aside the
reinstatement order passed by the School Tribunal, Nagpur which
came to be affirmed by the Division Bench in the impugned Order
which was of the opinion that Dattatray prohibited the extension of
any protection to the Appellant. Having come to that conclusion,
the Division Bench did not think it necessary to consider the
plethora of precedents, albeit of Two-Judge Benches where
protection had in fact been granted. Be that as it may, we think
that since there was no falsity in the claim of the Appellant and
therefore that she cannot be viewed as having filed a ‘false’ Caste
Certificate, the rigours of Section 10 of the 2000 Act would not
apply to her case. A perusal of the Order of the Scheduled Tribe
Caste Certificate Committee, Nagpur shows that the Committee was
satisfied that her claim to the caste of ‘Gadwal Koshti’ was
correct but that she did not belong to ‘Halba’ Scheduled Tribe.
Government Resolution dated 15.6.1995 specifically declares that
the following were basically backward in social, economic and
educational viewpoint and were therefore “special backward class”
vide Government Resolution dated 7.12.1994 :
“Sr. No. Name of the Caste
1. …. …. …. ….
2. …. …. …. ….
3. (1) Koshti (2) Halba Koshti (3) Halba Caste (4)
Sali (5) Ladkoshti (6) Gadwal Koshti (7) Deshkar (8)
Salewar (9) Padmashali (10) Dwang (11) Kachi Dhande
(Glass occupation) (12) Patwos (13) Satpal (14) Sade
(15) Dhankoshti.”
[Emphasis supplied]
9. It requires specialised bodies such as Caste Scrutiny Committees,
specialised lawyers, seasoned bureaucrats etc. to decipher which
category a relatively backward, or ostracized or tribal person
falls in. Can it therefore seriously be contended that a person
who has honestly, in contradistinction with falsely, claimed
consanguinity with a certain group which was later on found not to
belong to an envisaged Scheduled Tribe but to a special backward
class be visited with termination of her employment? We think that
that is not the intent of the law, and certainly was not what the
Three-Judge Bench was confronted with in Dattatray. In our
opinion, therefore, the Appellant should have been debarred from
any further advantage that would enure to persons belonging to the
‘Halba’ Tribe.
10. Accordingly, we direct reinstatement of the Appellant in service
but without any back wages. With the passage of time it is
possible that there may be another incumbent as Head Mistress of
the Respondent No.1-School and we think that it would not be
equitable to remove such person. However, if this post falls
vacant before the Appellant reaches the age of retirement or
superannuation she shall be re-appointed to that post but with no
further promotion as a Scheduled Tribe candidate unless she is
otherwise entitled as a special backward class candidate. The
Appeal stands disposed of accordingly. The parties shall bear
their respective costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10997 OF 2013
[Arising out of S.L.P.(C)No.2680 of 2010]
Shalini …..Appellant
Versus
New English High Sch. Assn. & Ors. …..Respondents
J U D G M E N T
VIKRAMAJIT SEN, J.
1. Leave granted. This Appeal challenges the Order of the Division
Bench of the High Court of Judicature at Bombay, Nagpur Bench
passed on 25.11.2009 in L.P.A. No.527 of 2009 affirming the
Order of the learned Single Judge who had dismissed the
Appellant’s Writ Petition essentially on the opinion of the
Three-Judge Bench in Union of India v. Dattatray (2008) 4 SCC
612.
The Order impugned before the learned Single Judge was
that of the School Tribunal, Nagpur which had granted
reinstatement of the Appellant with continuity of service and
full back wages.
The Appellant had been employed as an
Assistant Teacher against a vacancy earmarked for Scheduled
Tribe candidate, she having filed a Caste Certificate dated
8.7.1974 issued by the Competent Authority testifying her to
belong to the “Halba Scheduled Tribe Category”.
The question
before us is indeed a vexed one, as are all conundrums arising
out of claims for Scheduled Caste or Scheduled Tribe status and
resultant benefits. The confusion is made worst confounded
because of exclusions or inclusions of certain castes or classes
of people keeping only electoral advantages in mind.
Retrospectivity is inherent in subsequent enumerations under
Articles 341 and 342 since those selection are immutable or
unalterable; all change therefore, is only clarificatory in
content, because the endeavour of Parliament is to make the
enumerations more detailed by mentioning sub-castes or the
synonyms of the selected castes and tribes.
The inclusion of
new castes/tribes was intended by the framers of the
Constitution to be impermissible, in order “to eliminate any
kind of political factors having a play in the matter of the
disturbance in the Schedule so published by the President” as
per the Constituent Assembly oration of Dr. Ambedkar, which
stands accepted by the Apex Court at least twice, as in State of
Maharashtra v. Milind (2001) 1 SCC 4 and E.V. Chinnaiah v. State
of A.P. (2005) 1 SCC 394.
We have to decide
whether the Appellant’s employment was justifiably terminated because a Caste Scrutiny Committee after a passage of several decades, found her disentitled to claim the benefits enuring to Halbas.
2. In R. Vishwanatha Pillai v. State of Kerala (2004) 2 SCC 105,
this Court found that the caste certificate procured by the
Appellant was false ab initio. It repelled the argument that a
fresh notice should have been issued in compliance with Article
311 of the Constitution of India as a prelude to the imposition
of any punishment postulated by that provision, on the premise
that the appointment itself was illegal and void, thereby
disentitling the Appellant from Constitutional protection.
This
Court also rejected the plea that since the Appellant had put in
27 years of service the order of dismissal should be converted
to compulsory retirement or removal from service so that
pensionary benefits could be availed of.
The question which
immediately begs to be cogitated upon is
whether these harsh
consequences should nevertheless ensue and obtain even if no
fraud, mendacity or manipulation is ascribable to the person who
has claimed and enjoyed Scheduled Caste advantages.
3. This slant in the situation arose in State of Maharashtra v. Om
Raj (2007) 14 SCC 488 whereby several appeals came to be decided
simply on the basis of Milind, the gist of which was that
protection so far as the benefit then claimed on the strength of
being Koshtis would be preserved, but the incumbent would not be
entitled to any further benefit in the future. To remove
confusion, State of Maharashtra v. Viswanath [C.A.No.7375 of
2000] has also been decided in Om Raj with other appeals. In
Punjab National Bank v. Vilas (2008) 14 SCC 545,
the employee
had provided a Halba Scheduled Tribe Certificate and gained
employment in 1989 which was invalidated by the Scheduled Tribe
Scrutiny Committee leading to the termination of the
Respondent’s service by an order dated 4.2.2002. Drawing from
the previous decision in Milind this Court reiterated that
Scheduled Tribe status had not been conferred either on Halba
Koshti or Koshti but on ‘Halba’ alone.
This Court, thus, once
again protected the employment of the Respondent but clarified
that he would not be entitled to claim further promotion in the
Scheduled Tribe category.
It was also declared that the
Government Resolution dated 30.6.2004 would apply to all
employment with the “government/semi-government and Boards,
Municipalities, Municipal Corporations, District Councils,
Cooperative Banks, government undertakings, etc.”
4. Almost one year later this very question, which has led to a
deluge of litigation already, received the attention of a Three-
Judge Bench in Dattatray.
The Respondent, claiming to belong to
the Scheduled Tribe ‘Halba’, was appointed as Assistant
Professor of Psychiatry in G.B. Pant Hospital, New Delhi against
a post reserved for Scheduled Tribes.
A verification of the
Certificate of Scheduled Tribe disclosed that he did not belong
to the Halba Tribe.
The second challenge to this finding,
before the High Court, also proved to be futile.
However, on
what has been held to be a misinformed reading of the
Constitution Bench decision in Milind, the High Court thought it
fit to protect his service.
The Three-Judge Bench referred to
two other decisions of this Court namely Bank of India v.
Avinash D. Mandivikar (2005) 7 SCC 690 and BHEL v. Suresh
Ramkrishna Burde (2007) 5 SCC 336 and noting that the employee
had falsely claimed that he belonged to the Scheduled
Tribe/Halba, set aside the judgment of the High Court.
Whilst
it permitted settlement of employee-Doctor’s terminal benefits
it placed an embargo on his receiving any pensionary benefits.
This conclusion was arrived at by the Three-Judge Bench without
noting State of Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481
where the impugned Order passed by the Division Bench of the
High Court of Judicature at Bombay directing the reinstatement
of a person belonging to the ‘Koshti’ Tribe, (not even ‘Koshti-
Halbas’) was set aside.
5. It is evident that there is a plethora of precedents on this
aspect of the law, and perhaps for this reason Counsel for the
parties were remiss in drawing our attention in the present
proceedings to the detailed judgment
in Kavita Solunke v. State of Maharashtra (2012) 8 SCC 430, in which one of us, Thakur J,
had analysed as many as eleven precedents including those
discussed above. After reviewing all the judgments it was held,
in the facts and circumstances of that case, that since that
party had not intentionally or with dishonest intent fabricated
particulars of a scheduled tribe with a view to obtain an
undeserved benefit in the matter of appointment, she was
entitled to protection against ouster from service, but no other
benefit. In view of the comprehensive yet concise consideration
of case law in Solunke, any further analysis would make the
present determination avoidably prolix, and therefore our
endeavour will be to cull out the principles which would be
relevant for deciding suchlike conundrums.
These are -
(a) If
any person has fraudulently claimed to belong to a Scheduled
Caste or Scheduled Tribe and has thereby obtained employment, he
would be disentitled from continuing in employment. The rigour
of this conclusion has been diluted only in instances where the
Court is confronted with the case of students who have already
completed their studies or are on the verge of doing so, towards
whom sympathy is understandably extended;
(b) Where there is
some confusion concerning the eligibility to the benefits
flowing from Scheduled Caste or Scheduled Tribe status, such as
issuance of relevant certificates to persons claiming to be
‘Koshtis’ or ‘Halba Koshtis’ under the broadband of ‘Halbas’,
protection of employment will be available with the rider that
these persons will thereafter be adjusted in the general
category thereby rendering them ineligible to further benefits
in the category of Scheduled Caste or Scheduled Tribe as the
case may be;
(c) this benefit accrues from the decision of this
Court inter alia in Raju Ramsing Vasave v. Mahesh Deorao
Bhivapurkar (2008) 9 SCC 54 which was rendered under Article 142
of the Constitution of India. Realising the likely confusion in
the minds of even honest persons the Resolutions/Legislation
passed by the State Governments should spare some succour to
this section of persons. This can be best illustrated by the
fact that it was in Milind that the Constitution Bench
clarified that ‘Koshtis’ or ‘Halba-Koshtis’ were not entitled to
claim benefits as Scheduled Tribes and it was the ‘Halbas’ alone
who were so entitled. A perusal of the judgment in Vilas by
Sirpurkar J, as well as Solunke makes it clear that this
protection is available by virtue of the decisions of this
Court; it is not exclusively or necessarily predicated on any
Resolution or Legislation of the State Legislature;
(d) Where a
Resolution or Legislation exists, its raison d’etre is that
protection is justified in presenti (embargo on removal from
service or from reversion) but not in futuro (embargo on
promotions in the category of Scheduled Caste or Scheduled
Tribe).
6. A reading of the impugned Judgment requires us to clarify an
important aspect of the doctrine of precedence. Dattatray is
the only Three-Judge Bench decision, and therefore indisputably
holds pre-eminence. However, by that time several decisions had
already been rendered by Two-Judge Benches some of which have
already been discussed above. It was within the competence of
Dattatray Bench to overrule the other Two-Judge Benches.
Despite the fact that it has not done so the per incuriam
principle would not apply to the decision because it was a
larger Bench. However, no presumption can be drawn that the
Dattatray Three-Judge Bench decision was of the opinion that the
earlier Two-Judge Bench decisions had articulated an incorrect
interpretation of the law. That being so, the Two-Judge Bench
views may still be relied upon so long as the ratio of Dattatray
is not directly in conflict with their ratios. It is therefore
imperative to distill the ratio of Dattatray, which we have
already discussed in some detail.
We need only reiterate
therefore that the Three-Judge Bench was perceptibly incensed
with the falsity of the claim of the employee to Scheduled
Caste/Scheduled Tribe status.
That was not a case where a
legitimate claim of consanguinity to a ‘Halba Koshti’, ‘Koshti’
or ‘Gadwal Koshti’ etc. had been made, which was at the
inception point considered to be eligible to beneficial
treatment admissible to Scheduled Tribes, later to be reversed
by the Constitution Bench decision in Milind and declared to be
the entitlement of Halbas only.
It is not the intent of law to
punish an innocent person and subject him to extremely harsh
treatment.
That is why this Court has devised and consistently
followed that taxation statutes, which almost always work to the
pecuniary detriment of the assessee, must be interpreted in
favour of the assessee.
Therefore, as we see it, on one bank of
the Rubicon are the cases of dishonest and mendacious persons
who have deliberately claimed consanguinity with Scheduled
Castes or Scheduled Tribes etc.
whereas on the other bank are
those marooned persons who honestly and correctly claimed to
belong to a particular Scheduled Caste/Scheduled Tribe but were
later on found by the relevant Authority not to fall within the
particular group envisaged for protected treatment. In the
former group, persons would justifiably deserve the immediate
cessation of all benefits, including termination of services.
In the latter, after the removal of the nebulousness and
uncertainty, while the services or benefits already enjoyed
would not be negated, they would be disentitled to claim any
further or continuing benefit on the predication of belonging to
the said Scheduled Caste/Scheduled Tribe.
7. We must now reflect upon the Government Resolution dated
15.6.1995 passed by the Government of Maharashtra. Virtually it
grants status quo as regards employment inasmuch as it states
that those persons who, on the basis of Caste Certificates,
already stand appointed or promoted in the Government or Semi-
Government, shall not be demoted or removed from service.
Thereafter, the 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, ‘2000 Act’) was passed by the Legislature and received
the assent of the President. Section 10 thereof reads thus :
“10. 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 of Special
Backward Category secures admission in any education 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 forthwith.
(2) 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 arrears of land revenue.
(3) Notwithstanding anything contained in any Act for the
time being in force, any Degree, Dilploma 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.
(4) Notwithstanding 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 has 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 Backaward 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.”
In essence, the Section cancels with pre-emptive effect any benefit
that may have been derived by a person based on a false caste
certificate. Whilst “Caste Certificate” has been defined in Section
2(a) of the 2000 Act, “False Caste Certificate” has not been dealt
with in the Definitions clause. There is always an element of
deceitfulness, in order to derive unfair or undeserved benefit
whenever a false statement or representation or stand is adopted by
the person concerned. An innocent statement which later transpires to
be incorrect may be seen as false in general sense would normally not
attract punitive or detrimental consequences on the person making it,
as it is one made by error. An untruth coupled with a dishonest
intent however requires legal retribution. It appears to us that
Section 10 applies in the Dattatray mould only. It was obviously for
this reason that in Vilas, Sema J, was of the opinion that the 2000
Act did not apply to the facts before it whereas Sirpurkar J, after
concurring with Sema J, granted protection albeit under Article 142 of
the Constitution of India. In Nimje another Two-Judge Bench held that
Government Resolution dated 15.6.1995 would continue to apply even
after the passing of the 2000 Act so long as the appointment had taken
place prior to 1995. There is, therefore, palpable wisdom in the
Office Memorandum dated 10.8.2010 of the Government of India, Ministry
of Personnel, Public Grievances and Pensions, Department of Personnel
& Training to the effect that “it has been decided that the persons
belonging to the ‘Halba Koshti/Koshti’ caste who got appointment
against vacancies reserved for the Scheduled Tribes on the basis of
Scheduled Tribe certificates, issued to them by the competent
authority, under the Constitution (Scheduled Tribes) Order, 1950 (as
amended from time to time) relating to the State of Maharashtra and
whose appointments had become final on or before 28.11.2000, shall not
be affected. However, they shall not get any benefit of reservation
after 28.11.2000.”
8. The Appellant before us has been in service since 6.11.1981 on the
strength of her claim of consanguinity to ‘Halba Scheduled Tribe’
duly predicated on a Certificate dated 8.7.1974 issued by the
Competent Authority.
Avowedly she was appointed in a vacancy
earmarked against the Scheduled Tribe category. She was confirmed
as Assistant Teacher with effect from 1.1.1984. Respondent nos.1
and 2, by order dated 17.9.1989 appointed the Appellant as
Assistant Head Mistress.
Thereafter on 28.4.1994 she was promoted
as Head Mistress by an order of even date, subject to production of
Caste Validity Certificate.
It is not clear when the certificate
produced by the Appellant was referred to the Caste Scrutiny
Committee, Nagpur for verification, but the said Committee by Order
dated 20.8.2003 held it to be invalid.
The learned Single Judge of
the High Court of Judicature at Bombay, Nagpur Bench granted
protection in service on the basis of Government Resolution dated
15.6.1995 by his order dated 2.9.2003 in Writ Petition No.3500 of
2003.
Protracted litigation thereafter ensued eventually resulting
in the filing of another Writ Petition No.4532 of 2004 in which a
learned Single Judge by order dated 11.11.2009 set aside the
reinstatement order passed by the School Tribunal, Nagpur which
came to be affirmed by the Division Bench in the impugned Order
which was of the opinion that Dattatray prohibited the extension of
any protection to the Appellant. Having come to that conclusion,
the Division Bench did not think it necessary to consider the
plethora of precedents, albeit of Two-Judge Benches where
protection had in fact been granted. Be that as it may, we think
that since there was no falsity in the claim of the Appellant and
therefore that she cannot be viewed as having filed a ‘false’ Caste
Certificate, the rigours of Section 10 of the 2000 Act would not
apply to her case. A perusal of the Order of the Scheduled Tribe
Caste Certificate Committee, Nagpur shows that the Committee was
satisfied that her claim to the caste of ‘Gadwal Koshti’ was
correct but that she did not belong to ‘Halba’ Scheduled Tribe.
Government Resolution dated 15.6.1995 specifically declares that
the following were basically backward in social, economic and
educational viewpoint and were therefore “special backward class”
vide Government Resolution dated 7.12.1994 :
“Sr. No. Name of the Caste
1. …. …. …. ….
2. …. …. …. ….
3. (1) Koshti (2) Halba Koshti (3) Halba Caste (4)
Sali (5) Ladkoshti (6) Gadwal Koshti (7) Deshkar (8)
Salewar (9) Padmashali (10) Dwang (11) Kachi Dhande
(Glass occupation) (12) Patwos (13) Satpal (14) Sade
(15) Dhankoshti.”
[Emphasis supplied]
9. It requires specialised bodies such as Caste Scrutiny Committees,
specialised lawyers, seasoned bureaucrats etc. to decipher which
category a relatively backward, or ostracized or tribal person
falls in. Can it therefore seriously be contended that a person
who has honestly, in contradistinction with falsely, claimed
consanguinity with a certain group which was later on found not to
belong to an envisaged Scheduled Tribe but to a special backward
class be visited with termination of her employment? We think that
that is not the intent of the law, and certainly was not what the
Three-Judge Bench was confronted with in Dattatray. In our
opinion, therefore, the Appellant should have been debarred from
any further advantage that would enure to persons belonging to the
‘Halba’ Tribe.
10. Accordingly, we direct reinstatement of the Appellant in service
but without any back wages. With the passage of time it is
possible that there may be another incumbent as Head Mistress of
the Respondent No.1-School and we think that it would not be
equitable to remove such person. However, if this post falls
vacant before the Appellant reaches the age of retirement or
superannuation she shall be re-appointed to that post but with no
further promotion as a Scheduled Tribe candidate unless she is
otherwise entitled as a special backward class candidate. The
Appeal stands disposed of accordingly. The parties shall bear
their respective costs.
............................................J.
[T.S. THAKUR]
............................................J.
[VIKRAMAJIT SEN]
New Delhi
December 12, 2013.
