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Sunday, August 14, 2016

decision of the Caste Certificate Scrutiny Committee attained finality - he is not Halba community - not entitled for any relief claimed = the appellant is not entitled for any relief on the finding that his appointment as Chemical Examiner in the Customs and Central Excise Department vide appointment letter dated 16th June, 1995 had not attained finality. Notably, the Caste Certificate Scrutiny Committee has finally answered the factum of caste claim of the appellant on the basis of relevant material, which is indicative of the fact that in the relevant official record pertaining to even the close relatives of the appellant (grandfather and uncle), the caste recorded is “Koshti” and occupation shown as weaving separately. The appellant has allowed that decision of the Caste Certificate Scrutiny Committee dated 10th February, 2003/22nd April, 2004 to attain finality. The Scrutiny Committee has unambiguously held that the appellant does not belong to “Halba” Community, a notified Scheduled Tribe in Maharashtra. The High Court was, therefore, right in allowing the writ petition filed by the Department and to restore the termination order dated 8th June, 2004.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 9182 OF 2012


B.H.KHAWAS                                   ………… APPELLANT
                                   VERSUS


UNION OF INDIA & OTHERS                      ………RESPONDENTS




                            J U D G M E N T



A.M. KHANWILKAR, J.


This appeal challenges the judgment of the Division Bench of the High  Court
of Judicature at Bombay  in  Writ  Petition  No.  7101  of  2005  dated  8th
February 2012.   The  High  Court  reversed  the  decision  of  the  Central
Administrative Tribunal, Bombay Bench at Mumbai  in  OA  No.  419  of  2004,
dated 3rd March, 2005.  The Tribunal had allowed  the  original  application
filed by the appellant whilst setting aside the termination order dated  8th
June, 2004 and instead  had  directed  the  respondents  to  re-instate  the
appellant in service.





2.    Briefly stated, the appellant  was  appointed  as  “Chemical  Examiner
Grade–I” in the Customs and Central Excise Department in the  pay  scale  of
Rs. 3000-100-3500-125-4500, vide appointment letter dated 16th  June,  1995,
subject  to  fulfilling  terms  and  conditions  mentioned  herein.  As  the
appellant was appointed against the vacancy reserved  for  Scheduled  Tribe,
Condition (vii) of the said Appointment Letter is  of  some  relevance.   It
reads thus:-

“(vii). In case you belong to  Scheduled  Caste/Tribe,  the  appointment  is
provisional  and  is  subject  to  verification  of  Scheduled   Caste/Tribe
certificate through proper channels and if on verification,  your  claim  to
belong to Scheduled Caste or Scheduled Tribe, as the case may be,  is  found
to be false, your services will be terminated  forthwith  without  assigning
any reason and without prejudice to such further action that  may  be  taken
under the Indian penal Code for production of false certificate.”
                                               (emphasis supplied)

      3.    Before joining the post of Chemical Examiner in the Customs  and
Central Excise Department on 21st November, 1995, the appellant  had  worked
in other Departments of the Government of India; on being  selected  through
the Union Public Service  Commission,  to  the  post  of  “Senior  Technical
Assistant” in the Indian Bureau of Mines from 14.02.1985 to  12.05.1986;  as
an “Assistant Chemist (Group B Gazetted)” in the Geological Survey of  India
between 15.05.1986 to 31.05.1989; as “Chemist (Groups A  Gazetted)”  in  the
Indian Bureau of Mines between 05.06.1989 up to 12.04.1994; and  as  “Deputy
Director (Ind. Hygiene)” in the Directorate General Factory Advice  Services
and Labour Institutes from  13.04.1994  to  10.11.1995.  The  appellant  was
declared confirmed in the grade of  “Assistant  Chemist”  w.e.f.  15.05.1988
vide notification  dated  05.05.1995.   All  these  appointments  were  made
against  the  Scheduled  Tribe  reserved  category.   However,  lastly,  the
appellant joined the Customs and  Central  Excise  Department  as  “Chemical
Examiner Grade I”, from 21st November, 1995 pursuant  to  appointment  order
dated 16th June, 1995.  He was working on that post till his  services  were
terminated vide order dated 8th June, 2004, consequent to  the  decision  of
the Caste Certificate Scrutiny Committee – that the  appellant  belonged  to
caste “Koshti”, which is not a Scheduled Tribe in the State of Maharashtra.



      4.    When the appellant was appointed in the Indian Bureau of  Mines,
as Chemist in Group A, the said Department vide letter dated  13th  January,
1989 had referred his case for  Caste  Certificate  scrutiny  to  the  Caste
Certificate Scrutiny Committee, Nagpur.  The Scrutiny  Committee  after  due
enquiry answered the reference vide order  dated  16th  January,  2001.   It
found that  the  appellant  belongs  to  Caste  “Koshti”,  which  is  not  a
Scheduled Tribe.  That decision of the Scrutiny Committee was challenged  by
the appellant by way of a Writ Petition No. 376 of  2001,  before  the  High
Court of Judicature at Bombay,  Nagpur  Bench  at  Nagpur,  as  having  been
passed in violation of procedural compliances. That contention commended  to
the High Court, as a result of which the decision of the Scrutiny  Committee
was quashed and set aside and  the  matter  was  remanded  to  the  Scrutiny
Committee for redetermination of the claim afresh. After  fresh  enquiry  in
terms of the High Court decision, vide order dated 10th February, 2003,  the
Scrutiny Committee finally opined as follows:-

      “ After considering all the documents and facts & in exercise  of  the
powers vested vide Government Resolution, Corrigendum  and  Maharashtra  Act
quoted in the preamble at Sr. No.1 to 3 above, the Caste Scrutiny  Committee
has come to the conclusion  that  Shri  Bhojraj  Haribahu  Khawas  does  not
belong to the Halba, Scheduled Tribe and as such his claim towards the  same
is held invalid. And his caste Certificate  of  his  belonging  to  “Halba”,
Scheduled Tribe granted  by  the  Executive  Magistrate,  Nagpur  Vide  R.C.
No.181/MRC-81/81/82, dated 14.9.81 is hereby cancelled.”

      5.    On receipt of the said order of the Caste  Certificate  Scrutiny
Committee, the appellant  made  representations  to  the  Chairman,  Central
Board of Excise and Customs on 20.01.2004 and 21.01.2004.  The substance  of
the representations was founded on  the  caste  certificate  issued  by  the
Executive Magistrate, dated  14th  September,  1986,  which,  the  appellant
asserted was obtained bona- fide and in good  faith  on  the  basis  of  the
school record indicating that the appellant  belongs  to  Caste  “Halba”,  a
notified Scheduled Tribe in Maharashtra.   The  appellant  further  asserted
that he did not furnish false information of his  caste;  and  more  so  the
question whether or not “Koshti” caste belongs to  “Halba”  Scheduled  Tribe
was subject matter of immense debate and was conclusively  answered  by  the
Constitution Bench of the Supreme Court in the case of State of  Maharashtra
vs. Milind and Others[1], decided on November 28, 2000. The  appellant  thus
contended that his appointment already  made  on  the  basis  of  the  caste
certificate issued prior to that decision was protected  even  in  terms  of
the dictum of the Constitution Bench in Milind’s case.  This  stand  of  the
appellant,  however,  did  not  find  favour  with  the   Department.    The
Government of India, Ministry of Finance, Department of Revenue,  New  Delhi
instead issued an Office  Order  No.  F.No.A-12026/7/91-Ad.II-B,  dated  8th
June, 2004, cancelling the appointment of the appellant on the  ground  that
the appellant does not belong to Scheduled  Tribe.  This  decision  was  the
subject matter of challenge before the Central  Administrative  Tribunal  by
way of Original Application No. 491 of 2004.  The Tribunal  acceded  to  the
contention of the appellant that the appointment made prior to the  decision
in  Milind’s  case  will  have  to  be  protected.   The  objection  of  the
respondents that the observation of the Constitution Bench in Milind’s  case
was not applicable to  “appointments”  was  rejected.   The  Tribunal  noted
that, in a large number of cases, the Bombay High Court  has  protected  the
appointments of persons belonging to caste “Koshti” following the dictum  of
the Constitution Bench in Milind’s case. Accordingly, the  Tribunal  allowed
the original application and directed re-instatement  of  the  appellant  in
service by setting aside the order of termination.  The operative  order  of
the Tribunal reads thus:

      “On the whole, we  think  that  applicant  has  to  be  given  similar
benefit as has been given by the Hon’ble High Court of Bombay  in  a  number
of cases.  We direct the respondents  to  reinstate  the  applicant  as  his
services were terminated only on the limited ground of his not belonging  to
Halba S/T Community.  The order dated 8.6.2004 is  quashed  and  set  aside.
We, however, make it clear that neither the applicant nor his children  will
claim any further benefit available to a S/T candidate  and  they  shall  be
treated as belonging to Open  Category.   It  is  also  clarified  that  the
respondents are free to take any action against the applicant regarding  his
service  for  any  other  reasons  than  his  not  belonging  to  Halba  S/T
community.”

 Against this decision, the Department filed  a  writ  petition  before  the
High Court, being Writ Petition No. 7101 of 2005. The Division Bench of  the
Bombay High Court, relying on the decision of three Judges’  Bench  of  this
Court in the case of Union of India v/s. Dattatray s/o Namdeo Mendhekar  and
Ors[2], allowed the writ petition and restored the termination  order  dated
8th June, 2004. The appellant has, therefore, approached this Court  by  way
of present appeal.
      6.    The principal argument of the appellant is that the decision  of
the Constitution Bench in Milind’s case  itself  protects  all  appointments
which have become final.  The decision of the three Judges’ Bench relied  by
the High Court in the impugned judgment has been  considered  and  explained
in the subsequent decisions in the case  of  Kavita  Solunke  v/s  State  of
Maharashtra and Ors.[3],  Shalini v/s New English  High  School  Association
and Others[4] and in R. Unnikrishnan and Another v/s  V.K.  Kahanudevan  and
Others [5].  According to the appellant, following the  consistent  view  of
this Court, the appointment, even in the case of the  appellant,  should  be
protected.  For, the claim of the appellant was not a  false  claim,  but  a
bona fide claim founded  on  the  entries  in  the  school  record  and  the
certificate issued by the Executive Magistrate. It is not a  case  of  false
or dishonest claim set up by the appellant; or for that  matter  fabrication
of records or reliance placed on fraudulent caste certificate.



      7.    Per contra, the respondents contend that  the  principle  stated
in the subsequent decisions of this  Court  will  be  of  no  avail  to  the
appellant.  In that, the appellant was appointed on a provisional basis  and
subject to verification of his caste certificate through a  proper  channel.
The Caste Certificate  Scrutiny  Committee  having  finally  considered  the
factual position and opined that the appellant does not belong  to  caste  “
Halba”, a notified Scheduled Tribe but belongs to caste  “Koshti”,  was  not
entitled to continue on the post reserved for Scheduled Tribes.



      8.    Before we proceed further, it would  be  apposite  to  reproduce
the relevant portion  from  the  decision  of  the  Constitution  Bench,  in
Milind’s  case  which  is  the  fulcrum  for  claiming  protection  by   the
appellant. In paragraph 38, in that decision, the Court observed thus:-
“38. Respondent 1 joined the medical course for the  year  1985-86.   Almost
15 years have passed by now.  We are  told  he  has  already  completed  the
course and maybe he is practicing as a doctor.  In this  view  and  at  this
length of time it is for nobody’s benefit to  annual  his  admission.   Huge
amount is spent on each candidate for  completion  of  medical  course.   No
doubt, one Scheduled Tribe candidate was deprived of joining medical  course
by the admission given to Respondent 1.  If  any  action  is  taken  against
Respondent 1, it may lead to depriving  the  service  of  a  doctor  to  the
society  on  whom  public  money  has  already   been   spent.    In   these
circumstances, this judgment shall not affect the  degree  obtained  by  him
and his practicing 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 this judgment.”
                       (emphasis supplied)

The last sentence in this paragraph is crucial.  The  Court  made  it  clear
that the admissions and appointments that have “become final”  shall  remain
unaffected, by its judgment.





      9.    The moot question in the present case is:  whether  the  subject
appointment of the appellant to the post of “Chemical Examiner”  in  Customs
and Central  Excise  Department  has  in  fact  become  final?   Unlike  the
appointment of the appellant to  the  post  of  Assistant  Chemist,  in  the
Geological Survey of India, was confirmed in terms of Notification No.  1225
B/ A-31013/Asstt. Chemist/95-19C, dated 5.5.1995 with effect from 15th  May,
1988, his appointment to the post of “Chemical Examiner” in the Customs  and
Central Excise Department with which we are concerned  was  provisional  and
subject to verification of his caste claim of “Halba”. It  was  not  treated
as final by the Department till the impugned termination order  was  issued.
Nothing has been brought to our notice by the appellant  to  show  that  his
appointment on that post was in fact treated as confirmed by  the  concerned
Department, before issuing the impugned order of termination. Had it been  a
case of termination from the post  of  “Assistant  Chemist”,  on  which  the
appellant was confirmed by the concerned Department, the argument  canvassed
by the appellant would have assumed some significance and  could  be  tested
with reference to the recent decisions of this Court  pressed  into  service
by the appellant.

10.   Admittedly, the appellant  was  appointed  to  the  post  of  Chemical
Examiner in the Customs and Central Excise Department, where  he  joined  on
24th November, 1995, pursuant to the appointment letter bearing No.  F.No.A-
12026/7/91-AD.II-B, dated 16th June,  1995.   Condition  No.  (vii)  therein
unambiguously mentions that as the appointment of the appellant was  against
the post reserved for Scheduled Tribes, it was provisional  and  subject  to
verification of his caste certificate through a proper channel.   The  caste
certificate of  the  appellant  was  already  under  scrutiny  in  terms  of
reference made by the Controller General, of the  Indian  Bureau  of  Mines,
Nagpur, where the appellant was appointed in  similar  manner  on  the  post
reserved for Scheduled Tribes.  The mere fact that  the  Scrutiny  Committee
was not able to complete the enquiry on the question of  validity  of  caste
certificate, before the appellant resigned from the services of  the  Indian
Bureau of Mines and joined another Department of Government of  India,  that
would not extricate the appellant from the requirement  of  verification  of
his caste claim of “Halba”,  a  notified  Scheduled  Tribe  in  Maharashtra.
For, the appointment of  the  appellant  as  Chemical  Examiner  Grade-I  in
Customs and Central Excise Department in terms of Appointment  Letter  Dated
16th June, 1995 (Annexure P10), was to  a  temporary  post,  on  provisional
basis and subject to verification of his caste certificate through a  proper
channel.  In such a case, the principle expounded in  the  decisions  relied
by the appellant will have no application.
11.   In the case of Kavita Solunke (supra), it was not in dispute that  the
appellant had satisfactorily completed  the  period  of  probation  and  was
confirmed in service as an Assistant  Teacher  in  due  course.  Enquiry  in
respect of her caste claim was insisted  upon  “after  a  decade”  from  her
initial appointment, obviously after the  decision  in  Milind’s  case.  The
Court held that the appointment of the appellant  having  attained  finality
could not be disturbed. Indeed, the Court noted that there  was  nothing  to
indicate that the caste certificate of the appellant was  false,  fabricated
or manipulated by concealment or  otherwise.  That  observation  is  in  the
context of the matter in issue before the Court, for  passing  an  order  in
equity. Even in the next case, in Shalini (supra) which follows  the  dictum
in Kavita’s case, it is seen that the appointment of  the  appellant  as  an
Assistant Teacher had attained finality as she  was  in  service  since  6th
November, 1981 and confirmed w.e.f. 1st January, 1984, for which  the  Court
held that the same should not  be  disturbed.  Similarly,  in  the  case  of
Unnikrishnan and Another (supra), the Court  was  dealing  with  the  matter
where the caste claim was already made subject matter  of  challenge  before
the Court and was upheld. It was a case where a judicial order passed  inter
partes had become final on  that  issue.  In  that  case,  the  caste  claim
enquiry was insisted because of the subsequent Presidential Order  excluding
the concerned caste from the entry notified under  notification  dated  31st
August 2007.  The Court,  inter  alia,  opined  that  it  was  not  open  to
reconsider the settled judicial  pronouncement  on  the  caste  claim  inter
partes.
12.   In none of the cases  pressed  into  service  by  the  appellant,  the
appointment, as in this case,  was  on  provisional  basis  and  subject  to
verification of caste certificate through proper  channel.   It  necessarily
follows that the principle expounded in  the  three  decisions  referred  to
above, can have no application to the case on  hand.   Indubitably,  if  the
argument of the appellant was accepted, it would inevitably  mean  that  all
appointments made before 28.11.2000 must be protected  even  though  it  had
not become final. That would also mean that all  caste  certificates  issued
to persons belonging to  “Koshti”  community,  as  being  “Halba”  Scheduled
Tribe in Maharashtra, prior to November 28, 2000 (the day on which  Milind’s
case  was  decided  by  the  Constitution  Bench),   have   been   validated
irrespective  of  the  opinion  of  the   Scrutiny   Committee   qua   those
certificates. That cannot be countenanced. For, caste “Koshti” is neither  a
synonym nor part of a notified Scheduled Tribe “Halba” in Maharashtra.
13.   Considering the above, the appellant is not entitled  for  any  relief
on the finding that his appointment as Chemical Examiner in the Customs  and
Central Excise Department vide appointment letter dated 16th June, 1995  had
not attained finality. Notably, the  Caste  Certificate  Scrutiny  Committee
has finally answered the factum of caste  claim  of  the  appellant  on  the
basis of relevant material, which is indicative of  the  fact  that  in  the
relevant official record pertaining to  even  the  close  relatives  of  the
appellant (grandfather and  uncle),  the  caste  recorded  is  “Koshti”  and
occupation shown as weaving  separately.  The  appellant  has  allowed  that
decision of the Caste Certificate Scrutiny Committee  dated  10th  February,
2003/22nd April,  2004  to  attain  finality.  The  Scrutiny  Committee  has
unambiguously held that the appellant does not belong to “Halba”  Community,
a notified Scheduled Tribe in Maharashtra. The High  Court  was,  therefore,
right in allowing the writ petition filed by the Department and  to  restore
the termination order dated 8th June, 2004.
      14.   Accordingly, we find no  merit  in  this  appeal;  the  same  is
dismissed with no order as to costs.





                                                            ………..…………………….J.

                                                         (ADARSH KUMAR GOEL)







                                                            …..………………………..J.
                                                           (A.M. KHANWILKAR)



New Delhi;

August 12, 2016.

ITEM NO.1A               COURT NO.1               SECTION IX
(For Judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                        Civil Appeal  No(s).9182/2012

B.H. KHAWAS                                        Appellant(s)

                                VERSUS

UNION OF INDIA & ORS.                              Respondent(s)
(with office report)

Date : 12/08/2016 This appeal was called on for pronouncement of
                  Judgment today.


For Appellant(s)
                     Mr. Rajesh Prasad Singh, Adv.


For Respondent(s)


      Hon'ble Mr.Justice A.M. Khanwilkar  pronounced  the  judgment  of  the
Bench comprising Hon'ble Mr. Justice Adarsh Kumar Goel and His Lordship.

      The civil appeal is  dismissed  in  terms  of  the  signed  reportable
judgment.



     (ASHOK RAJ SINGH)                  (VEENA KHERA)
        Court Master                          Court Master
       (Signed reportable judgment is placed in the file)






-----------------------
[1]   [2] (2001) 1 SCC 4
[3]   [4]  (2008) 4 SCC 612
[5]   [6]  (2012) 8 SCC 430
[7]   [8]  (2013) 16 SCC 526
[9]   [10]  (2014) 4 SCC 434

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