REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5821 OF 2012
(Arising out of S.L.P. (C) No.33716 of 2009)
Kavita Solunke …Appellant
Versus
State of Maharashtra and Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. The High Court of Judicature at Bombay has while dismissing Writ
Petition No.1810 of 2008 filed by the appellant herein refused to interfere
with the order dated 20th February, 2008 passed by the Scheduled Tribe
Certificate Scrutiny Committee, Amravati. The Committee in turn had
declared that the appellant was a ‘Koshti’ by Caste and not a ‘Halba’ which
is a notified Scheduled Tribe. The facts giving rise to the present appeal
lie in a narrow compass and may be summarised as under:
Shri Shivaji High School, Dongaon, of which respondent No.5 happens
to be the Head Master, invited applications in terms of advertisement dated
20th July, 1995 against three vacant posts of teachers in the said school.
One each of these two posts was reserved for Scheduled Caste and Scheduled
Tribe Candidates. The third post was ostensibly in open category and
required a minimum qualification of B.P.Ed., which the appellant herein did
not possess. The appellant claiming to be a ‘Halba’ applied for the
solitary post reserved for the Scheduled Tribe candidates and was appointed
as a low grade co-teacher in the pay scale of Rs.1200-2040 with effect from
1st August, 1995 or the date she joined the said post. The appointment was
on probation for an initial period of two years which was duly approved by
the Zila Parishad Education Officer in terms of his order dated 12th July,
1996. It is not in dispute that the appellant satisfactorily completed the
period of probation and was confirmed in service as an Assistant Teacher in
due course.
A decade after her initial appointment, respondent No.5 asked the
appellant to get her caste credentials verified from the Scheduled Tribe
Certificate Scrutiny Committee. The appellant complied with the said
direction and submitted her certificate to the Committee concerned, which
in turn forwarded it for a proper vigilance inquiry. In the course of the
said inquiry, the school record of the appellant was also looked into which
showed that the appellant’s father was a ‘Koshti’ by caste which caste was
not a Scheduled Tribe in Maharashtra.
The Committee, therefore, concluded that the Caste Certificate of the
appellant was invalid and accordingly cancelled the same. This led to the
school passing an Order dated 23rd February, 2008 whereby the services of
the appellant were terminated with immediate effect. The termination Order
said:
“……..You were appointed on the post reserved for candidate of
Scheduled Tribes. At the time of appointment you produced
certificate showing that you belong to the category of Scheduled
Tribes. There after the said Certificate was sent for verification
to the Caste Scrutiny Committee. The said Committee after giving
opportunity of hearing and adducing of evidence decided the enquiry
and came to the conclusion that you do not belong to the category
as mentioned in the certificate produced by you and consequently
invalidated the caste certificate produced by you are not entitled
to continue on the post as the post is reserved for the candidate
of Scheduled Tribes Community.”
Aggrieved by the above, the appellant filed an appeal before the
School Tribunal under Section 9 of the Maharashtra Employees of Private
School (Condition of Service) Regulation Act, 1977 which failed and was
dismissed by the Tribunal by its order dated 25th September, 2008. The
appellant then preferred a writ petition before the High Court of Nagpur
challenging the order passed by the Scheduled Tribe Certificate Scrutiny
Committee invalidating her caste claim. The High Court saw no reason to
interfere and dismissed the said petition by the order impugned before us.
The High Court observed:
“... neither the petitioner personally nor through her agent
appeared before the Caste Scrutiny Committee nor submitted any
reply to the Vigilance Cell Inquiry Report. Perusal of the order of
Caste Scrutiny Committee further reveals that the Vigilance Cell
collected the document dated 18.10.1956 i.e., extract of School
entry in respect of father of the petitioner, wherein caste of
father of the petitioner mentioned as “Koshti”. Similarly, the
another document collected by the Vigilance Cell further shows that
the petitioner does not belong to “Halba” Scheduled Tribe.
Petitioner also failed to establish affinity with the “Halba”
Scheduled Tribe. In the circumstances, the conclusion arrived at by
the Caste Scrutiny Committee is just and proper and needs no
interference.”
3. The present appeal assails the correctness of the above order as
already noticed.
4. Learned counsel appearing for the appellant raised a short point
before us. He contended that the appointment of the appellant having
attained finality, could not have been set aside on the ground that Koshti-
Halbas were not ‘Halbas’ entitled to the benefit of reservation as
Scheduled Tribes. Relying upon the decision of the Constitution Bench of
this Court in State of Maharashtra v. Milind (2001) 1 SCC 4, it was urged
by the learned counsel that the appellant was entitled to the protection of
continuance in service, no matter ‘Halba-Koshtis’ were not recognised as
‘Halbas’ by this Court. The High Court had not, according to the learned
counsel, correctly appreciated the decision of this Court in Milind’s case
(supra) and thereby fallen in an error in dismissing the writ petition
filed by the appellant. He also placed reliance upon the Office Memorandum
issued by the Government of India, Ministry of Personnel, Public Grievances
and Pensions, Department of Personnel & Training dated 10th August, 2010
whereby protection against ouster of those appointed in the Scheduled Tribe
category had been extended to persons appointed on the basis of their being
‘Halba-Koshti’ in the State of Maharashtra. It was further urged that
relying upon the said subsequent development, this Court had allowed one
Raju Gadekar, a candidate similarly placed as the appellant to seek the
benefit under the circular by moving a suitable application before the High
Court. There was according to the learned counsel no reason to take a
different view in the case of the appellant, especially when this Court
had in Milind’s case (supra) followed in subsequent decisions, extended
protection against ouster from service to those appointed in the Scheduled
Tribe category on the basis of the certificates showing the persons
appointed to be a ‘Koshti-Halba’ by caste.
5. On behalf of the respondent, it was urged that the decision of this
Court in Milind’s case (supra) was distinguishable from the facts of the
case at hand inasmuch as that case dealt with admission to a professional
course and not with appointment to any public office. It was further
argued that the decision of this Court in Milind’s case (supra) had been
explained by this Court in subsequent decisions including R. Vishwanatha
Pillai v. State of Kerala (2004) 2 SCC 105; State of Maharashtra v. Sanjay
K. Nimje (2007) 14 SCC 481; Bank of India v. Avinash D. Mandivikar (2005)
7 SCC 690 and Union of India v. Dattatray (2008) 4 SCC 612 and the benefit
limited only to cases arising out of admission to professional courses
where the candidate had already completed the course and their ouster would
result in no benefit to anyone.
6. In Milind’s case (supra), the Constitution Bench of this Court was
examining whether Koshti was a sub-tribe within the meaning of Halba/Halbi
as appearing in the Constitution (Scheduled Tribes) Order, 1950. The
respondent in that case had obtained a Caste Certificate from the Executive
Magistrate to the effect that he belonged to ‘Halba’ Scheduled Tribe. He
was on that basis selected for appointment to the MBBS Degree Course in the
Government Medical College for the session 1985-86 against a seat reserved
for Scheduled Tribe candidates. The certificate relied upon by the
respondent-Milind was sent to the Scrutiny Committee, the Committee
recorded a finding after inquiry to the effect that the respondent did not
belong to Scheduled Tribe. In an appeal against the said Order, the
Appellate Authority concurred with the view taken by the Committee and
declared that the respondent-Milind belonged to ‘Koshti Caste’ and not to
‘Halba Caste’ Schedule Tribe.
7. In a writ petition filed against the said order by Milind, the High
Court held that it was permissible to examine whether any sub-division of a
tribe was a part and parcel of the tribe mentioned therein and whether
‘Halba-Koshti’ was a sub-division of the main tribe ‘Halba’ within the
meaning of Entry 19 in the Constitution (Scheduled Tribes) Order, 1950.
The High Court further held that Halba-Koshti was indeed a sub-tribe of
Halba appearing in the Presidential Order.
8. In an appeal filed against the above order of the High Court, this
Court held that the Courts cannot and should not expand their jurisdiction
while dealing with the question as to whether a particular caste or sub-
caste, tribe or sub-tribe is included in any one of the Entries
mentioned in the Presidential Orders issued under Articles 341 and 342.
Allowing the State Government or the Courts or other authorities or
tribunals to hold an inquiry as to whether a particular caste or tribe
should be considered as one included in the Schedule to the Presidential
order, when it is not so specifically included would lead to problems. This
Court declared that the holding of an inquiry or production of any evidence
to decide or declare whether any tribe or tribal community or part thereof
or a group or part of a group is included in the general name, even though
it is not specifically found in the entry concerned would not be
permissible and that the Presidential Order must be read as it is.
9. Having said so, this Court noticed the stand taken by the Government
on the issue of ‘Halba-Koshti’ from time to time and the circulars,
resolutions, instructions but held that even though the said circulars,
instructions had shown varying stands taken by the Government from time to
time relating to ‘Halba-Koshti’ yet the power of judicial review exercised
by the High Court did not extend to interfering with the conclusions of the
competent authorities drawn on the basis of proper and admissible evidence
before it. This Court observed:
“…….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 “Koshtis”
could be treated as “Halbas”. In this view the High Court could not
upset the finding of fact in exercise of its writ jurisdiction.”
10. What is important is that this Court noticed the prevailing confusion
arising out of different circulars and instructions on the question of
‘Halba-Koshti’ being Scheduled Tribes. Dealing with the observations made
by the High Court and referring to circulars, instructions and resolution
issued by the Government from time to time, this court observed:
“33. The High court in paras 20 to 23 dealt with
circulars/resolutions/ instructions/orders made by the Government
from time to time on the issue of “Halba-Koshtis”. It is stated in
the said judgment that up to 20-7-1962 “Halba-Koshtis” were treated
as “Halbas” in the specified areas of Vidarbha. The Government of
Maharashtra, Education and Social Welfare Department issued
Circular No. CBC 1462/3073/M to the effect that “Halba-Koshtis”
were not Scheduled Tribes and they are different from
“Halba/Halbis”. In the said circular it is also stated that certain
persons not belonging to “Halba” Tribe have been taking undue
advantage and that the authorities competent to issue caste
certificates should take particular care to see that no person
belonging to “Halba-Koshtis” or “Koshti” community is given a
certificate declaring him as a member of Scheduled Tribes. On 22-8-
1967 the abovementioned circular of 20-7-1962 was withdrawn.
Strangely, on 27-9-1967, another Circular No. CBC-1466/9183/M was
issued showing the intention to treat “Halba-Koshti” as “Halba”. On
30-5-1968 by Letter No. CBC-1468-2027-O, the State Government
informed the Deputy Secretary to the Lok Sabha that “Halba-Koshti”
is “Halba/Halbi” and it should be specifically included in the
proposed amendment Act. The Government of Maharashtra on 29-7-1968
by Letter No. EBC-1060/49321-J-76325 informed the Commissioner for
Scheduled Castes and Scheduled Tribes that “Halba-Koshti” community
has been shown included in the list of Scheduled Tribes in the
State and the students belonging to that community were eligible
for the Government of India Post-Matric Scholarships. On 1-1-1969
the Director of Social Welfare, Tribal Research Institute, Pune, by
his Letter No. TRI/I/H.K./68-69 stated that the State Government
could not in law amend the Scheduled Tribes Order and that a tribe
not specifically included, could not be treated as Scheduled Tribe.
In this view the Director sought for clarification. The Government
of India on 21-4-1969 wrote to the State Government that in view of
Basavalingappa case “Halba-Koshti” community could be treated as
Scheduled Tribe only if it is added to the list as a sub-tribe in
the Scheduled Tribes Order and not otherwise. Thereafter, few more
circulars were issued by the State Government between 24-10-1969
and 6-11-1974 to recognise “Halba-Koshtis” as “Halbas” and
indicated as to who were the authorities competent to issue
certificates and the guidelines were given for inquiry. There was
again departure in the policy of the State Government by writing a
confidential Letter No. CBC-1076/1314/Desk-V dated 18-1-1977. The
Government informed the District Magistrate, Nagpur, that “Halba-
Koshtis” should not be issued “Halba” caste certificate.
Thereafter, few more circulars, referred to in para 22 of the
judgment, were issued. It may not be necessary to refer to those
again except to the circular dated 31-7-1981 bearing No. CBC-
1481/(703)/D.V. by which the Government directed that until further
orders insofar as “Halbas” are concerned, the School Leaving
Certificate should be accepted as valid for the purpose of the
caste. Vide resolution dated 23-1-1985 a new Scrutiny Committee was
appointed for verification of caste certificates of the Scheduled
Tribes. The High Court had observed in para 23 of the judgment that
several circulars issued earlier were withdrawn but the said
circular dated 31-7-1981 was not withdrawn. For the first time on 8-
3-1985 the Scrutiny Committee was authorised to hold inquiry if
there was any reason to believe that the certificate was
manipulated or fabricated or had been obtained by producing
insufficient evidence. Referring to these circulars/resolutions the
High Court took the view that the caste certificate issued to
Respondent 1 could be considered as valid and up to 8-3-1985 the
inquiry was governed by circular dated 31-7-1981. The High Court
dealing with the stand of the State Government on the issue of
“Halba-Koshti”, from time to time, and also referring to
circulars/resolutions/instructions held in favour of Respondent 1
on the ground that the appellant was bound by its own
circulars/orders. No doubt, it is true, the stand of the appellant
as to the controversy relating to “Halba-Koshti” has been varying
from time to time but in the view we have taken on Question 1, the
circulars/ resolutions/instructions issued by the State Government
from time to time, some times contrary to the instructions issued
by the Central Government, are of no consequence. They could be
simply ignored as the State Government had neither the authority
nor the competency to amend or alter the Scheduled Tribes Order.
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.”
11. A careful reading of the above would show that both the High Court as
also this Court were conscious of the developments that had taken place on
the subject whether ‘Halba-Koshti’ are ‘Halbas' within the meaning of the
Presidential Order. The position emerging from the said circulars,
resolutions and orders issued by the competent authority from time to time
notwithstanding, this Court on an abstract principle of law held that an
inquiry into the question whether ‘Halba-Koshti’ were Halbas within the
meaning of the Presidential order was not legally permissible.
12. The appellant before us relies upon the above passage extracted above
to argue that her appointment had attained finality long before the
judgment of this Court was delivered in Milind’s case and even when she was
found to be a ‘Koshti’ and not a ‘Halba’ by the Verification Committee, she
was entitled to protection against ouster.
13. We find merit in that contention. If ‘Halba-Koshti’ has been treated
as ‘Halba’ even before the appellant joined service as a Teacher and if the
only reason for her ouster is the law declared by this Court in Milind’s
case, there is no reason why the protection against ouster given by this
Court to appointees whose applications had become final should not be
extended to the appellant also. The Constitution Bench had in Milind’s case
noticed the background in which the confusion had prevailed for many years
and the fact that appointments and admissions were made for a long time
treating ‘Koshti’ as a Scheduled Tribe and directed that such admissions
and appointments wherever the same had attained finality will not be
affected by the decision taken by this Court. After the pronouncement of
judgment in Milind’s case, a batch of cases was directed to be listed for
hearing before a Division Bench of this Court. The Division Bench
eventually decided those cases by an order dated 12th December 2000 (State
of Maharashtra v. Om Raj (2007) 14 SCC 488) granting benefit of protection
against ouster to some of the respondents on the authority of the view
taken by this Court in Milind’s case. One of these cases, namely, Civil
Appeal No.7375 of 2002 arising out of SLP No.6524 of 1988 related to the
appointment of a ‘Koshti’ as an Assistant Engineer against a vacancy
reserved for a ‘Halba/Scheduled Tribe candidate. This court extended the
benefit of protection against ouster to the said candidate also by a short
order passed in the following words:
“4. Leave granted.
5. The appellant having belonged to Koshti caste claimed to be
included in the Scheduled Tribe of Halba and obtained an
appointment as Assistant Engineer. When his appointment was sought
to be terminated on the basis that he did not belong to Scheduled
Tribe by the Government a writ petition was filed before the High
Court challenging that order which was allowed. That order is
questioned in this appeal. The questions arising in this case are
covered by the decision in State of aharashtra v. Milind1and were
got to be allowed, however, the benefits derived till now shall be
available to the appellant to the effect that his appointment as
Assistant Engineer shall stand protected but no further. The appeal
is disposed of accordingly.”
14. Reference may also be made to Punjab National Bank v. Vilas (2008) 14
SCC 545. That too was a case of appointment based on a certificate which
was later cancelled on the ground that ‘Halba Koshti’ was not the same as
‘Halba’ Scheduled Tribe. The High Court had set aside the termination of
the service of the affected candidates relying upon a Government resolution
dated 15th June 1995 as applicable to Punjab National Bank. While upholding
the said order, H.K. Sema, J. held the candidate to be protected against
ouster on the basis of the resolution. V.S. Sirpurkar, J., however, took a
slightly different view and held that the appointment made by the Bank
having become final the same was protected against ouster in terms of the
decision of the Constitution Bench in Milind’s case (supra). The question
whether the Government resolution protected the candidates against ouster
from service was for that reason left open by His Lordship. Reliance in
support of that view was placed upon the decision of this Court in Civil
Appeal No. 7375 of 2000 (wrongly mentioned in the report as Civil appeal
No. 3375 of 2000) mentioned above. The Court observed:
“The situation is no different in case of the present respondent.
He also came to be appointed and/or promoted way back in the year
1989 on the basis of his caste certificate which declared him to be
Scheduled Tribe. Ultimately, it was found that since a “Koshti”
does not get the status of a Scheduled Tribe, the Caste Scrutiny
Committee invalidated the said certificate holding that the
respondent was a Koshti and not a Halba. I must hasten to add that
there is no finding in the order of the Caste Scrutiny Committee
that the petitioner lacked in bona fides in getting the
certificate. I say this to overcome the observations in para 21 in
Sanjay K. Nimje case. But it is not a case where the respondent
pleaded and proved bona fides. Under such circumstances the High
Court was fully justified in relying on the observations made in
Milind case. The High Court has not referred to the judgment and
order in Civil Appeal No. 3375 of 2000 decided on 12-12-2000 to
which a reference has been made above. However, it is clear that
the High Court was right in holding that the observations in Milind
case apply to the case of the present respondent and he stands
protected thereby”.
15. Our attention was drawn by counsel for the respondents to the
decision of this Court in Addnl. General Manager/Human Resource BHEL v.
Suresh Ramkrishna Burde (2007) 5 SCC 336 in which the protection against
ouster granted by the decision in Milind’s case was not extended to the
respondent therein. A bare reading of the said decision, however, shows
that there is a significant difference in the factual matrix in which the
said case arose for consideration. In Burde’s case, the Scrutiny Committee
had found that the caste certificate was false and, therefore, invalid.
That was not the position either in Milind’s case nor is that the position
in the case at hand. In Milind’s case, the Scrutiny Committee had never
alleged any fraud or any fabrication or any misrepresentation that could
possibly disentitle the candidate to get relief from the Court. In the
case at hand also there is no such accusation against the appellant that
the certificate was false, fabricated or manipulated by concealment or
otherwise. Refusal of a benefit flowing from the decision of this Court in
Milind’s case may, therefore, have been justified in Burde’s case but may
not be justified in the case at hand where the appellant has not been
accused of any act or omission or commission of the act like the one
mentioned above to disentitle her to the relief prayed for. The reliance
upon Burde’s case (supra), therefore, if of no assistance to the
respondent.
The decision of this Court in State of Maharashtra v. Sanjay K. Nimje
(2007) 14 SCC 481 relied upon by learned counsel for the respondents was
distinguished even by V.S. Sirpurkar, J. in Vilas’s case. The distinction
is primarily in terms whether the candidate seeking appointment or
admission is found guilty of a conduct that would disentitle him/her from
claiming any relief under the extraordinary powers of the Court. This
Court found that if a person secures appointment or admission on the basis
of false certificate he cannot retain the said benefit obtained by him/her.
The Courts will refuse to exercise their discretionary jurisdiction
depending upon the facts and circumstances of each case. The following
passage from decision in the Nimje’s case is apposite:
“In a situation of this nature, whether the Court will refuse to
exercise its discretionary jurisdiction under Article 136 of the
Constitution of India or not would depend upon the facts and
circumstances of each case. This aspect of the matter has been
considered recently by this Court in Sandeep Subhash Parate v.
State of Maharashtra (2006) 7 SCC 501.”
16. Applying the above to the case at hand we do not see any reason to
hold that the appellant had fabricated or falsified the particulars of
being a Scheduled Tribe only with a view to obtain an undeserved benefit in
the matter of appointment as a Teacher. There is, therefore, no reason why
the benefit of protection against ouster should not be extended to her
subject to the usual condition that the appellant shall not be ousted from
service and shall be re-instated if already ousted, but she would not be
entitled to any further benefit on the basis of the certificate which she
has obtained and which was 10 years after its issue cancelled by the
Scrutiny committee.
17. In the result, we allow this appeal, set aside the order passed by
the High Court and direct the reinstatement of the appellant in service
subject to the condition mentioned above. We further direct that for the
period the appellant has not served the institution which happens to be an
aided school shall not be entitled to claim any salary/back wages. She
will, however, be entitled to continuity of service for all other intents
and purposes. The respondent shall do the needful within a month from the
date of this order. The parties are left to bear their own costs.
……………………………………….……….…..…J.
(T.S. Thakur)
……………………………..…………………..…..…J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi
August 9, 2012
