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Arun V/S State of Maharashtra

    Writ Petition Nos. 5297, 3890 and 4363 of 2013

    Decided On, 22 December 2014

    At, In the High Court of Bombay at Nagpur

    By, THE HONORABLE CHIEF JUSTICE: M.S. SHAH
    By, THE HONORABLE JUSTICE: V.A. NAIK AND THE HONORABLE JUSTICE: R.K. DESHPANDE

    For Petitioner: Anil Mardikar, Senior Advocate, assisted by Narayan Phadnis, Rajeev Madkholkar, Ram Parsodkar, S.R. Narnaware and V.G. Wankhede, Advocates And For Respondents: Bharti Dangre, Government Pleader



Judgment Text

1. All these matters are placed before this Full Bench by a common order of reference dated 1-10-2013 passed by the Division Bench of this Court (Smt. Vasanti A. Naik and Shri A.S. Chandurkar, JJ.) to consider and decide the following questions:

"1. Whether the relief of protection of service after invalidation of the caste claim can be granted by the High Court on the basis of the judgment of the Hon’‘ble Supreme Court in Kavita Solunke Vs. State of Maharashtra and others : 2012 (8) SCC 430?

2. If the answer to question No. 1 is in the affirmative, can such relief of protection of service be granted by the High Court in a case where the same relief has been earlier refused by the High Court?"

2. The reason for framing question No. 1 is that there is conflict of views taken by the different Division Benches of this Court upon consideration of the decision of the Apex Court in the case of Kavita Solunke v. State of Maharashtra and others, reported in : (2012) 8 SCC 430. One line of the decisions taking the view that the protection in service granted in Kavita Solunke’‘s case is an exercise of jurisdiction under Article 142 of the Constitution of India and other line of the decisions holding that it is a law declared by the Apex Court under Article 141 of the Constitution of India, which is binding.

3. So far as the question No. 2, which falls for consideration of the Full Bench, is concerned, it does not arise out of any conflict between the views taken by the Division Benches of this Court, but the referring Bench thought it fit to refer the said question for decision by the Larger Bench, because it found that repeatedly the matters are coming before the Division Bench of this Court, wherein the relief of protection of service has been claimed in spite of the fact that the petitions claiming the same reliefs were already rejected or that no such relief was claimed, though the petitions were filed challenging the order of the Scrutiny Committee, which were rejected. The question of bar of res judicata, including that of constructive res judicata, therefore, falls for consideration.

4. Heard Shri Anil Mardikar, the learned Senior Advocate, assisted by Shri Narayan Phadnis, Advocate; Shri Rajeev Madkholkar, Shri Ram Parsodkar, Shri S.R. Narnaware, and Shri V.G. Wankhede, the learned counsels appearing for the petitioners in all these petitions; Smt. Bharti Dangre, the learned Government Pleader for the State and the Caste Scrutiny Committee; Shri Rohit Deo, the learned Assistant Solicitor General for Union of India, and Shri R.E. Moharir, the learned counsel for the respondent No. 2 in Writ Petition No. 3890 of 2013. In order to curtail the volume of this judgment, the rival contentions are not reproduced in this judgment, but we must appreciate the assistance provided by all the learned counsels and this judgment is the outcome of it and we believe that the answers to the rival contentions shall find place in it.

5. To trace out the history of litigation, the State Government found in the year 1980 that the concessions and benefits in various forms made available to the persons belonging to Scheduled Tribe category, including those of admissions in educational institutions and reservations in Government service were largely being availed by the persons, who do not really belong to Scheduled Tribe category by producing false Caste Certificates and such percentage was found as high as 60 per cent. Hence, a Committee was constituted by the Government Resolution dated 29-10-1980 to enquire into the procedure for issuance of Caste Certificates, which laid down the revised instructions and prescribed the authorities for issuance of Caste Certificates. By the same resolution, the Divisional Commissioner was empowered to enquire into the appeals in respect of the complaints and allegations about issuance of Caste Certificates to the persons, who do not belong to Scheduled Tribes, and the detailed procedure was also prescribed for dealing with such appeals.

6. As a result of the aforesaid exercise, the controversies started surfacing in respect of spurious claims to grab the benefits and concessions for Scheduled Tribe category. The controversy in one such appeal decided by the authorities in respect of a claim for ‘‘Mahadeo Koli’‘, a Scheduled Tribe, which is an Entry 29 in the Constitutional (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra, went up to the Apex Court, which was decided on 2-9-1994; Kum. Madhuri Patil and another v. Additional Commissioner, Tribal Development, reported in : AIR 1995 SC 94. The Apex Court found that the appellants, who were the candidates belonged to the Other Backward Class category of ‘‘Hindu Koli’‘, claimed the benefits of the admission in M.B.B.S. Course, meant for Scheduled Tribe category as the members of a sub-caste of ‘‘Mahadeo Koli’‘, a Scheduled Tribe. The Apex Court observed that the spurious tribes have become a threat to the genuine tribals, who are defrauding the true Scheduled Tribes to their detriment and deprivation snatching away their benefits. In para 12 of the said decision, the Apex Court observed that the admissions wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The Apex Court found that ineligible or spurious persons who falsely gained entry resorted to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude.

7. In the said decision in Madhuri Patil’‘s case, the Apex Court thought it fit to streamline the procedure for issuance of social status certificates, their scrutiny and approval. The direction was issued to all the State Governments to constitute a Committee of three officers for verification and issuance of social status certificates and upon the finding being recorded that the claim is not genuine or doubtful or spurious or false or wrong claim, to cancel the admission/appointment so obtained by following the procedure prescribed therein. The guideline Nos. 10, 14 and 15 laid down by the Apex Court being relevant, are reproduced below:

"10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee."

"14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or the Parliament."

"15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post."

In response to the aforesaid decision of the Apex Court, the State of Maharashtra by its resolution dated 7-3-1996, prescribed revised procedure for issuance of Caste Certificates to the candidates claiming the benefits, which are made available for the backward class category of Scheduled Tribe. The preamble of the said Government Resolution itself makes it clear that pursuant to the decision of the Apex Court in Madhuri Patil’‘s case, the authorities are being prescribed and the procedure for issuance of Caste Certificates has also been laid down.

8. Then came the decision of the Apex Court in the case of State of Maharashtra v. Milind and others, reported in : (2001) 1 SCC 4, by the Constitution Bench on 28-11-2000. The Division Bench of this Court had ruled that ‘‘Halba Koshti’‘ is a sub-division of the main tribe ‘‘Halba’‘/’‘Halbi’‘ as per Entry No. 19 in the Scheduled Tribes Order applicable to the State of Maharashtra. This Court had held that it was permissible to make an enquiry as to whether ‘‘Halba Koshti’‘ is a sub-division or a part and parcel of the main tribe of ‘‘Halba’‘/’‘Halbi’‘ as per Entry No. 19 in the Scheduled Tribes Order. The decision of this Court was based upon the decisions of the Division Benches of the Apex Court rendered in Bhaiya Ram Munda v. Anirudh Patar and others, reported in : (1971) 4 SCR 804, and Dina v. Narayan Singh, reported in 38 ELR 212. The Apex Court has held in para 26 that no enquiry at all is permissible and no evidence can be let in to find out and decide that if any tribe or tribal community or part of or group within any tribe or tribal community is included within the scope and meaning of the concerned Entry in the Presidential Order when it is not so expressly or specifically included. In Para 34, the Apex Court has held that the decisions of the Division Benches of the Apex Court in Bhaiya Ram Munda and Dina’‘s cases did not lay down a law correctly in stating that the enquiry was permissible and the evidence was admissible within the limits indicated for the purpose of showing what an Entry in the Presidential Order was intended to be. In Milind’‘s case, on facts, the Apex Court has held that the High Court exceeded its supervisory jurisdiction by making roving and in-depth examination of the materials afresh and in coming to the conclusion that ‘‘Koshtis’‘ could be treated as ‘‘Halbas’‘.

9. Para 36 of the judgment in Milind’‘s case has been interpreted by the Full Bench and the Division Benches of this Court. The same being relevant, is reproduced below:

"36. Respondent No. 1 joined the medical course for the year

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1985-86. Almost 15 years have passed by now. We are told he has already completed the course and may be he is practicing as doctor. In this view and at this length of time it is for nobody’‘s benefit to annul his admission. Huge amount is spent on each candidate for completion of medical course. No doubt, one Scheduled Tribe candidate was deprived of joining medical course by the admission given to respondent No. 1. If any action is taken against respondent No. 1, it may lead 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. 16372/85 and other related affairs, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment."

10. After rejecting the claim of the persons belonging to the caste ‘‘Koshti’‘ or ‘‘Halba Koshti’‘ to be the part and parcel of Entry No. 19 of ‘‘Halba’‘/’‘Halbi’‘ in the Constitutional (Scheduled Tribes) Order in relation to the State of Maharashtra, and declaring the claim of the respondent No. 1 to be invalid, the Apex Court granted him protection from withdrawal of the benefits of obtaining M.B.B.S. Degree secured by him. The Apex Court did not stop at that stage, but proceeded to clarify the position keeping in view the claims pending for adjudication in other related affairs that the admissions and appointments that have become final shall remain unaffected by this judgment.

11. The decisions of the Division Benches of this Court in the cases of Rajendra Ramaji Mahisbadwe v. Joint Commissioner and Vice Chairman, reported in : 2013 (3) Mh.L.J. 393, and Archana Dadarao Pethkar v. Joint Commissioner and Vice Chairman, reported in : 2013 (3) Mh.L.J. 764, take the view, relying upon the decision of the Full Bench of this Court in the case of Ganesh Rambhau Khalele v. State of Maharashtra and others, reported in: 2009 (2) Mh.L.J. 788, that the relief of protection of service after invalidation of the caste claim cannot be granted by the High Court on the basis of the clarificatory direction issued by the Apex Court in para 36 of the decision in the case of State of Maharashtra v. Milind, reported in: (2001) 1 SCC 4, to the effect that "the admissions and appointments that have become final shall remain unaffected by this judgment" in exercise of the jurisdiction under Article 142 of the Constitution of India. These judgments also hold that the protection in service granted by several other judgments of the Apex Court, including one in Kavita Solunke’‘s case was in exercise of the jurisdiction under Article 142 of the Constitution of India, which is not available to the High Court under Article 226 or 227 of the Constitution of India.

12. The another line of decisions in the cases of Prabhakar Nandanwar v. Joint Commissioner and Vice Chairman Scheduled Tribe Certificate, Caste Scrutiny Committee and others, reported in : 2013 (1) Mh.L.J. 156; A.P. Ramtekakar v. Union of India and others, reported in: 2013 (2) Mh.L.J. 419; Vijaya Nandanwar v. Chief Officer, Municipal Council, Wardha, reported in : 2013 (5) Mh.L.J. 153; and Pradip Gajanan Koli v. State of Maharashtra and others, reported in : 2014 (2) Mh.L.J. 779, taking the view that the clarificatory direction of the Apex Court in Milind’‘s case and the protection in service granted upon invalidation of caste claim by the Apex Court in several other decisions, including the decision in Kavita Solunke’‘s case lays down a law under Article 141 of the Constitution of India, which need to be followed.

13. After the order of reference was passed by the Division Bench in the present cases on 1-10-2013, there is another decision of the Apex Court rendered on 12-12-2013 in the case of Shalini v. New English High School Association and others, reported in : (2013) 16-SCC-526. This decision has been referred to and followed by the Division Bench of this Court in Mahendrakumar Namdeorao Hedaoo v. Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur and others, reported in : 2014 (4) Mh.L.J. 958, and the decision of another Division Bench of this Court in the case of Rakesh Sukanuji Dafade v. State of Maharashtra and another, reported in : 2014 (3) Mh.L.J. 307. Both these decisions held that the controversy is made clear by the Apex Court beyond the pale of any doubt and the question as to whether the decision of the Apex Court in the case of State of Maharashtra v. Milind and others, reported in : (2001) 1 SCC 4, lays down a law under Article 141 of the Constitution of India on the question of granting relief of protection of service after invalidation of the caste claim, is no longer res integra. The decision of the Apex Court in Shalini’‘s case has been rendered subsequent to the decisions of the Division Benches of this Court in the cases of Rajendra Mahisbadwe and Archana Pethkar, and hence it will have to be followed to give protection in service.

14. The decision in Milind’‘s case was delivered on 28-11-2000 and 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 (Maharashtra Act No. XXIII of 2001)("the said Act") was brought into force in the State of Maharashtra on 18-10-2001 by the notification dated 17-10-2001 published in the official gazette. The relevant portion of the Statement of Objects and Reasons of the said Act is reproduced below:

"It has been brought to the notice of the Government that the incidents of procuring false Caste Certificates, in respect of Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category have reached alarming figure. Such false Caste Certificates not only enable the ineligible persons to avail of the concessions and reservations in the matter of securing employment or admission in the educational institutions or contesting for or being elected to any of the elective offices reserved for the benefit of the aforesaid Castes, Tribes and Classes, but also result in depriving the genuine members of the said Castes, Tribes and Classes of the said concessions and reservations, thereby defeating the very purpose of such concessions and reservations."

Making further reference to the decision of the Apex Court delivered on 18-4-1995 in the case of Director of Tribal Welfare, Government of Andhra Pradesh v. Laveti Giri and another, it is stated that as the existing instructions issued by the Government from time to time are found to be inadequate, to curb this menace, it is decided to undertake a suitable legislation for regulating the issue of the Caste Certificate and Verification of such certificate and also providing for deterrent punishment for those who indulge in such illegal activity.

15. Section 3 of the said Act deals with application for a Caste Certificate, and it is reproduced below:

"Application for a Caste Certificate-

3. Any person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category, required to produce a Caste Certificate in order to claim the benefit of any reservation provided to such Castes, Tribes or Classes, either in any public employment or for admission into any educational institution, or any other benefit under any special provisions made under clause (4) of Article 15 of the Constitution of India or for the purpose of contesting for elective post in any local authority or in the Co-operative Societies; or for purposes specified by the Government, shall apply in such form and in such manner as may be prescribed, to the Competent Authority for the issue of a Caste Certificate."

In terms of Section 3 of the said Act, any person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category or Classes required to produce a Caste Certificate in order to claim the benefit of any reservation provided to such Castes, Tribes or Classes in the public employment, has to apply to the Competent Authority in such form and in such manner as is prescribed for issuance of a Caste Certificate. The language employed in Section 3, more particularly the words "required to produce", clearly suggest the production after coming into force of the Act. The provision, therefore, operates from the date of coming into force of the said Act, i.e. 18-11-2001.

16. Section 4 of the said Act deals with Caste Certificate to be issued by Competent Authority. It runs as under:

"Caste Certificate to be issued by Competent Authority-

4. (1) The Competent Authority may, on an application made to it under section 3, after satisfying itself about the genuineness of the claim and following the procedure as prescribed, issue a Caste Certificate within such time limit and in such form as may be prescribed or reject the application for reasons to be recorded in writing.

(2) A Caste Certificate issued by any person, officer or authority other than the Competent Authority shall be invalid. The Caste Certificate issued by the Competent Authority shall be valid only subject to the verification and grant of validity certificate by the Scrutiny Committee."

Under sub-section (1) of Section 4 of the said Act, if the Competent Authority is satisfied about the genuineness of the claim, then it may issue such Caste Certificate in the form prescribed. Sub-section (2) of Section 4 of the said Act states that a Caste Certificate issued by any person or officer or authority other than the Competent Authority, shall be invalid. If further states that the Caste Certificate issued by the Competent Authority shall be valid only subject to the verification and grant of validity certificate by the Scrutiny Committee.

17. This requirement of making an application under sub-section (1) of Section 4 of the said Act to the Competent Authority operates from the date of coming into force of the said Act. The provision of sub-section (2) of Section 4 does not have the effect of invalidating the Caste Certificate issued prior to coming into force of the said Act on 18-10-2001, though it has the effect of invalidating the Caste Certificate issued by any person, officer or authority other than the Competent Authority after coming into force of the said Act. However, the Caste Certificate-whether issued prior to or after coming into force of the said Act-remains valid only subject to the verification and grant of validity certificate by the Scrutiny Committee.

18. Section 6 of the said Act deals with verification of Caste Certificate by Scrutiny Committee and sub-sections (1), (2) and (4) being relevant, are reproduced below:

"Verification of Caste Certificate by Scrutiny Committee-

6. (1) The Government shall constitute by notification in the Official Gazette, one or more Scrutiny Committee(s) for verification of Caste Certificates issued by the Competent Authorities under sub-section (1) of section 4 specifying in the said notification the functions and the area of jurisdiction of each of such Scrutiny Committee or Committees.

(2) After obtaining the Caste Certificate from the Competent Authority, any person desirous of availing of the benefits or concessions provided to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for the purposes mentioned in section 3 may make an application, well in time, in such form and in such manner as may be prescribed, to the concerned Scrutiny Committee for the verification of such Caste Certificate and issue of a validity certificate.

(4) The Scrutiny Committee shall follow such procedure for verification of the Caste Certificate and adhere to the time limit for verification and grant of validity certificate, as prescribed."

Whosoever is desirous of availing of the benefits or concessions provided to Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Class Category for the purposes mentioned in Section 3, has to make an application well in time in the form and manner prescribed to the concerned Scrutiny Committee constituted under sub-section (1) of Section 6 of the said Act for the verification of such Caste Certificate and issuance of a validity certificate, as contemplated by sub-section (2) of Section 6 of the said Act. One of the purposes mentioned in Section 3 is to claim benefits of reservation for such Castes, Tribes, or Classes in any public employment. The words "whoever is desirous of availing" used in sub-section (2) of Section 6 read with the provision of Section 3 clearly suggest the availment after coming into force of the Act and hence the provision is prospective in operation.

19. Section 7 of the said Act deals with confiscation and cancellation of false Certificate and it is reproduced below:

"Confiscation and cancellation of false Certificate-

7. (1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any.

(2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or court except the High Court under Article 226 of the Constitution of India."

Sub-section (1) of Section 7 of the said Act deals with the confiscation and cancellation of false Caste Certificate. It applies to Caste Certificates obtained prior and subsequent to coming into force of the said Act. It states that if a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Class Category has obtained a false Caste Certificate to the effect that he himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may suo motu or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order, cancel and confiscate the certificate by following the procedure prescribed and to communicate the same to the concerned person or the concerned authority, if any.

20. Section 10 of the said Act deals with benefits secured on the basis of false Caste Certificate to be withdrawn, and subsections (1) and (2) being relevant are reproduced below:

"Benefits secured on the basis of false Caste Certificate to be withdrawn-

10. (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 or Special Backward Category secures admission in any educational 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."

In terms of sub-section (1) of Section 10 of the said Act, whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Class Category secures any appointment in any Company, Local Authority or in any other Government or Corporation owned or controlled by the Government or in any Government-aided Institution or Co-operative Society (called as "public employment") against a person 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 discharged from the such employment forthwith and any other benefits enjoyed or derived by virtue of such appointment by such person shall be withdrawn forthwith. The words "secures any appointment" in this Section shows the prospective nature of the operation of this Section.

21. Section 11 of the said Act deals with the offences and penalties and it runs as under:

"Offences and penalties-

11. (1) Whoever,--

(a) obtains a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or

(b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for such Castes, Tribes, or Classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Co-operative Society against the office, reserved for such Castes, Tribes or Classes by producing a false Caste Certificate;

Shall, on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both.

(2) No court shall take cognizance of an offence punishable under this section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorised by the Scrutiny Committee for this purpose."

Clause (a) of sub-section (1) of Section 11 deals with the mode of obtaining a false certificate, which can be by furnishing false information or filing false statement or documents or by any other fraudulent means. Clause (b) pertains to securing of any benefits or appointments exclusively reserved for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Class Category in the public employment by a person not belonging to such Castes, Tribes or Classes by producing a false Caste Certificate.

22. The provision of sub-section (1) prescribes the punishment with rigorous imprisonment for a term which shall not be less than six months but which may extend up to two years or with fine which shall not be less than two thousand rupees, but which may extend up to twenty thousand rupees or both upon conviction being recorded. Under sub-section (2), no Court can take cognizance of an offence punishable under subsection (1), except upon a complaint in writing made by the Scrutiny Committee or by any other office duly authorized by the Scrutiny Committee for this purpose.

23. Section 12 of the said Act deals with the offences under Section 11 of the Act to be cognizable and non-bailable, and every offence punishable shall be tried by the Magistrate of First Class in a summary way and the provisions of Section 262, except sub-section (2) to Section 265, shall, as far as possible, be applied to such trial. Section 13 deals with the penalty for intentionally issuing a false Caste Certificate by a person or authority performing the functions of Competent Authority under the Act. The punishment is also the same as is prescribed under Section 11. Section 14 makes the abatement of offence punishable.

24. The entire scheme of the Act shows that after coming into force of the said Act on 18-10-2001, the condition precedent to claim the benefits and concessions or appointment or promotion is the production of caste validity certificate and no benefits or an appointment in any public employment against a post reserved for any of the backward class categories can be obtained or secured without production of a caste validity certificate from the Scrutiny Committee. If this position is to be accepted and implemented, then there would be no cases of cancellation of appointments and promotions or withdrawal of benefits and concessions secured by the candidates belonging to any of the backward class categories after coming into force of the said Act.

25. The position prevailing prior to the decision in Madhuri Patil’‘s case on 2-9-1994 was that the benefits or concessions and the appointments and promotions were made available in public employment against the posts meant for any of the categories of backward classes without there being any condition precedent of producing a caste validity certificate from the Scrutiny Committee in support of the caste certificate. Even after the decision in Madhuri Patil’‘s case, the appointments were made in public employment against a post reserved for any of the backward class categories without producing a caste validity certificate. This was in terms of para 11 and the guideline No. 10 in the decision of the Apex Court in Madhuri Patil’‘s case, reproduced earlier in para 6 above.

26. If a genuine candidate is prevented from getting admission or employment for want of validity certificate because of the time consumed in process, then it would cause great injustice and an irretrievable injury to such candidate or a person. Such practice is based on the principle that the delay should not defeat the justice. Though in the decision of Madhuri Patil’‘s case two months’‘ time was prescribed for the Scrutiny Committee to decide the claim, it is noticed that the claims are not decided for years, may be on some occasion on account of the remand of the matter by this Court. The practice of making provisional appointments still continues even after coming into force of the said Act.

27. Section 10 of the said Act regarding the "benefits secured on the basis of a false certificate to be withdrawn" operates from the date of coming into force of the said Act on 18-11-2001. The provision is essentially penal in nature and, therefore, it shall have no effect on the benefits or appointments obtained or secured prior to coming into force of the said Act. We, therefore, subscribe to such a view expressed by the Division Bench of this Court in Prashant s/o Haribhau Khawas v. State of Maharashtra and others, reported in : 2008 (2) Mh.L.J. 322.

The consequences of discharge from employment or withdrawal of benefits secured or obtained by producing a false caste certificate shall not operate in respect of benefits or appointments obtained or secured prior to coming into force of the said Act.
Even none of counsels appearing for the contesting parties have urged that Section 10 would operate in respect of such appointments or benefits.
28. If the provision of sub-section (2) of Section 4 does not have the effect of automatically invalidating the Caste Certificate issued prior to the commencement of the said Act, as has been held earlier, does it mean that even if there is a false Caste Certificate produced to secure the benefits or appointment in public employment, such certificate shall remain valid forever and the person, who has secured the benefits on the basis of such certificate, shall remain eligible to secure further benefits after coming into force of the said Act? Our answer would be in the negative. The provision of Section 10 the said Act would become applicable as soon as any such claim for securing the benefits or appointment is made by producing a false Caste Certificate against the post reserved for any of the backward class categories, after coming into force of the said Act. A Caste Certificate issued prior or after coming into force of the said Act becomes valid only upon the grant of validity certificate by the Scrutiny Committee. Merely because the Caste Certificate was obtained prior to coming into force of the said Act, the consequences provided under Section 10 cannot be prevented.

29. In case of appointment secured in public employment after coming into force of the said Act by producing a false Caste Certificate, the provision of sub-section (1) of Section 10 shall come into operation only on cancellation of the Caste Certificate by the Scrutiny Committee. Under Section 7 of the said Act, the Scrutiny Committee is empowered to enquire into the correctness of the Caste Certificate obtained before or after coming into force of the said Act. The Scrutiny Committee is empowered to cancel the Caste Certificate after recording the specific findings-(i) that a person has obtained a false Caste Certificate claiming to be belonging to such Castes, Tribes or Classes, and (ii) that such certificate was obtained fraudulently. In the absence of such findings, there cannot be a cancellation of false Caste Certificate, though no benefits or appointment can be obtained and secured upon mere invalidation of the Caste Claim by the Scrutiny Committee. Thus, the provision of Section 7 of the said Act is an integral part of sub-section (1) of Section 10 and it will have to be read accordingly.

30. In the absence of applicability of sub-section (1) of Section 10 to any benefit or an appointment or employment secured prior to coming into force of the said Act, by production of a false Caste Certificate, the guideline Nos. 14 and 15 in Madhuri Patil’‘s case would operate. In terms of guideline No. 14, in case the certificate obtained or social status claim is found to be false, then the appointing authority is required to cancel such appointment or to debar the candidate from continuing in office in a post. Thus, the guidelines in Madhuri Patil’‘s case and the entire scheme of the Act in unequivocal terms indicate recording of findings (i) that the person has secured the benefits, concessions, appointment or promotion in public employment for a post reserved for any of the backward class category by producing a Caste Certificate showing that he belongs to such backward class category for which such benefits are meant, and (ii) that the Committee forms an opinion that the certificate produced was a false Caste Certificate obtained fraudulently by adopting means known to be fraudulent in law, and, therefore, the same needs to be cancelled and confiscated.

31. The power to issue a Caste Certificate under subsection (1) of Section 4 by the Competent Authority and the power of the Scrutiny Committee to issue a caste validity certificate under sub-section (2) of Section 6 of the said Act though are quasi judicial in nature, there is neither any lis nor any contesting party involved nor the rival claims are required to be decided. The object and purpose of it, as appears from objects and reasons of the said Act, is to regulate issuance of such certificates and to enable and see that only eligible persons avail the concessions and reservations and they are not deprived of it, so as to defeat the purpose. The grant or rejection of the Caste Certificate or the caste validity certificate depends upon the satisfaction of the concerned authorities based on objective assessment of the material produced on record by the claimant or collected by the authorities concerned after an enquiry into such claim in accordance with the rules prescribed.

32. The enquiry by the Scrutiny Committee is of a summary nature and merely to ascertain the genuineness or validity of the claim or an eligibility of a person to make such claim based upon the correctness of the information furnished and the material placed on record. This is the scope of enquiry or scrutiny laid down under sub-section (2) of Section 6 of the said Act read with sub-Rule 9(a) of Rule 12 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003. It is not the scope of the scrutiny or the object and purpose of the enquiry by the Scrutiny Committee to satisfy itself or find out whether a Caste Certificate produced is false, in the sense that it is fraudulent or to hold a person guilty of the offences under Section 11 of the said Act and/or to punish the claimant either for producing a false Caste Certificate or for securing an employment on the basis of such certificate.

33. Under clause (a) of sub-section (1) of Section 11 of the said Act, mere obtaining of a false Caste Certificate by a mode specified therein, viz. by furnishing false information or filing false statement or documents or by any other fraudulent means, has been made an offence, whereas under clause (b) therein, securing of any benefits or appointments reserved for such Castes, Tribes or Classes in public employment by producing a false Caste Certificate by a person not belonging to such Castes, Tribes or Classes, has been made an offence. Clause (a) takes within its sweep the obtaining of false Caste Certificate prior or after coming into force of the said Act, whereas clause (b) shall be attracted if the employment is secured after coming into force of the said Act.

34. Section 12 of the said Act deals with the offences under the Act to be cognizable and non-bailable. Clause (b) therein states that every offence punishable shall be tried by any Magistrate of First Class in a summary way and the provisions of Section 262, except sub-section (2) of Section 265, both inclusive of the Criminal Procedure Code, 1973, shall, as far as possible, may be applied to such trial. It is, therefore, the Judicial Magistrate First Class, who is conferred with the power to hold any person guilty of obtaining a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent mean, in terms of clause (a) of sub-section (1) of Section 11. He is further empowered under clause (b) therein to hold guilty any person not being a person belonging to any of the categories of backward classes secures any benefit or appointment exclusively reserved for such classes in the public employment.

35. The cognizance of such offences under Section 11 of the said Act can be taken only upon a complaint by the Scrutiny Committee. If during the course of enquiry under sub-section (2) of Section 6 of the said Act, the Scrutiny Committee finds that the claimant has obtained a false Caste Certificate, as contemplated under Section 11 of the said Act, then it has to lodge a complaint with the Judicial Magistrate, First Class, who is empowered to impose the punishment. Such finding about obtaining of a false Caste Certificate or securing of benefits by producing a false Caste Certificate would only be considered as prima facie in nature subject to outcome of any prosecution to be launched under Section 11 of the said Act. It is, therefore, clear that in the absence of any complaint being lodged with the Magistrate, as required by sub-section (2) of Section 11 of the said Act, the proceedings cannot be taken to their logical end so as to cast a stigma on the claimant, which act is to be considered as one of a moral turpitude resulting into the consequences of disqualification to hold any office of public, as has been stated in the guideline No. 14 in Madhuri Patil’‘s case. Upon acquittal from the offences, the claimant would normally be entitled to restoration of benefits, if at all, he loses by virtue of an action under Section 10 of the said Act.

36. It is urged that the provision of Section 10 of the said Act is independent empowering discharge from employment and withdrawal of benefits secured by producing a false Caste Certificate and the consequences provided therein flow immediately upon invalidation of a Caste Certificate, which is found to be false, means not found to be true or not substantiated. It is urged that Section 10 cannot be read to hold that there is an element of fraud, deceit or mens rea involved. The reliance is placed upon the decision of the Full Bench of this Court in the case of Ramesh Suresh Kamble v. State of Maharashtra and others, reported in : 2008 (2) ALL MR 572.

37. In Ramesh Kamble’‘s case, the petitioner contested the election as a Councillor of the Municipal Corporation on the basis of his nomination after coming into force of 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 (Maharashtra Act No. XXIII of 2001) in a seat reserved for Scheduled Castes candidate by producing a Caste Certificate, which was invalidated by an order of the Scrutiny Committee. The petitioner was disqualified under Section 16(1C)(a) of the Mumbai Municipal Corporation Act, 1888 read with Section 10(4) of the Maharashtra Act No. XXIII of 2001 following the decision of the earlier Full Bench in the case of Sujit Vasant Patil v. State of Maharashtra and others, reported in : 2004 (3) Mh.L.J. 1109, wherein it was held that the disqualification is the automatic consequence provided under sub-section (4) of Section 10 of the Maharashtra Act No. XXIII of 2001.

38. The Full Bench in Ramesh Kamble’‘s case interpreted the provisions of Sections 6(2) and 7(1) of the Maharashtra Act No. XXIII of 2001. It has been held that upon conjoint reading of these provisions, it becomes very clear that the Caste Certificate is cancelled or confiscated when the Scrutiny Committee is of the opinion that the certificate has been obtained fraudulently by the applicant. It further holds that conversely, once the certificate is obtained by the applicant from the Competent Authority is cancelled and confiscated, logically what follows from it is that the Caste Scrutiny Committee was not satisfied with the correctness of the certificate obtained from the Competent Authority, though the Caste Scrutiny Committee may not say in so many words that such certificate has been obtained fraudulently. The Full Bench considered the meaning of the term ‘‘false’‘ as erroneous, untrue, the opposite of correct, or true, and it is held that the term ‘‘false’‘ does not necessarily involve turpitude of mind. The Full Bench further held that the enquiry under Section 7(1) of the said Act is focussed on the correctness of the Caste Certificate issued by the Competent Authority on the application made by the concerned person disclosing certain information. If the Caste Certificate is cancelled by the Scrutiny Committee, it obviously means that the Caste Certificate has been obtained by that person from the Competent Authority on incorrect facts or erroneous representation. There may not be deliberateness in it and there is failure on the part of the candidate to establish his caste claim before the Scrutiny Committee and the declaration that the certificate obtained from the Competent Authority is invalid and thereby cancelled, leads to necessary inference that such person made a false claim of his caste belonging to the reserved category to which he did not belong and thus incurred the disqualification.

39. The Full Bench in Ramesh Kamble’‘s case overruled the decision of the Division Benches of this Court in the cases of Surendra Hanmanloo Gandam v. State of Maharashtra and others, reported in : 2006 (1) Mh.L.J. 308, and Mohan Parasnath Goswami v. Committee for Scrutiny of Caste Certificates and others, reported in : 2003 (5) Mh.L.J. 707. In the decision of the Division Bench of this Court in the case of Surendra Gandam, the provision of Section 10 of the said Act and the Government Resolution dated 15-6-1995 granting protection to the appointments and promotions made before 15-6-1995, fell for consideration. The Division Bench in Suresh Gandam’‘s case took the view in paras 18 and 19 as under:

"18. In our view, if a claimant fails to substantiate and establish his caste claim because of insufficiency of evidence or lack of knowledge of traits or characteristics of his tribe, he cannot be termed as a person who has obtained and produced a false caste certificate. The phraseology ‘‘false caste certificate’‘ or ‘‘a certificate obtained fraudulently’‘ used in section 7 of the Act cannot and does not cover bona fide cases where a claimant fails to establish his caste claim. To hold that a person has obtained a ‘‘false caste certificate’‘ or a ‘‘certificate fraudulently’‘, there need to exist an element of mens rea or a guilty mind and only on the establishment of the existence of the said element, that a person could be branded as one who has obtained false caste certificate. It is in this sense, that we have observed in proposition "C" above, that a person can be denied the benefit of Government Resolution dated 15-6-1995, if he has procured the appointment on the basis of false caste certificate."

"19. Ordinarily the proceedings before the Committee are for adjudication of the caste claim but in some cases, the Committee may prima facie find that the claim is false, on the ground that the certificate itself is forged or that the certificate is obtained fraudulently, etc. then in that situation, the claimant will have to be put on notice in that regard and afforded an opportunity of being heard to explain as to why the Committee should not hold the claimant guilty of producing a false, forged or fabricated certificate. Solely on the ground that the claim is invalidated, the Scrutiny Committee will not be justified in reaching a conclusion that the claimant has obtained a false certificate or he has produced a false caste certificate."

40. In a recent decision of the Apex Court in Shalini v. New English High School Association and others, reported in : (2013) 16-SCC-526, the provision of Section 10 of the said Act read with the Government Resolution dated 15-6-1995 granting protection in employment secured prior to coming into force of the said Government Resolution, was considered. After quoting Section 10 of the said Act, in para 7, the Apex Court has held as under:

"7.... In essence, the section cancels with preemptive 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 is thus clear that the Apex Court has in unequivocal terms held that 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. In para 8 of the said decision, the Apex Court has set aside the view taken by the learned Single Judge of this Court, which was confirmed by the Division Bench refusing to grant protection in service only upon invalidation of the caste claim by the Scrutiny Committee and it is held that since there is no falsity in the claim, the petitioner cannot be viewed as having filed a false Caste Certificate, the rigors of Section 10 of the said Act would not apply to her. The Court poses a question-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? It answers holding that such is not the intent of the law and certainly was not what the Three-Judge Bench was confronted with in Union of India v. Dattatraya Namdeo Mendhekar, reported in : (2008) 4 SCC 612.

41. The decisions rendered by the two Full Benches of this Court-one in the case of Sujit Vasant Patil v. State of Maharashtra and others, reported in : 2004 (3) Mh.L.J. 1108; and another in the case of Ramesh Suresh Kamble v. State of Maharashtra and others, reported in : 2007 (1) Mh.L.J. 423, overruled the decision of the Division Bench of this Court in Surendra Gandam’‘s case. The ratio of the decision of the Apex Court in Shalini’‘s case is in conformity with the view taken by the Division Bench of this Court in Surendra Gandam’‘s case. The law laid down by the Full Benches in Sujit Patil and Ramesh Kamble’‘s cases to the effect that it is not necessary that such claim or declaration must involve turpitude of mind and there may not be any deliberateness in it and mere failure to establish caste claim leads to an inference that such person made a false claim belonging to the reserved category to which he did not belong, is directly in conflict with the ratio of Shalini’‘s case.

42. With greatest respect to the learned Judges of the two Full Benches in Sujit Patil and Ramesh Kamble’‘s cases, we are of the view that both these decisions stand impliedly overruled and remain no longer a good law in view of the decision of the Apex Court in Shalini’‘s case. We further hold that the law laid down in Surendra Gandam’‘s case, which follows the decisions of the two-Judge Benches in the case of R. Vishwanath Pillai v. State of Kerala, reported in : (2004) 2 SCC 105; Bank of India v. Avinash D. Mandivikar, reported in : (2005) 7 SCC 690; Additional General Manager/Human Resource BHEL v. Suresh Ramkrishna Burde, reported in : (2007) 5 SCC 336; and State of Maharashtra v. Sanjay K. Nimje, reported in : (2007) 14 SCC 481 is in conformity with the ratio of the decision in Shalini’‘s case, holds the field.

43. The decision of Full Bench of this Court in Ganesh Khalale’‘s case and the decisions of the Division Benches of this Court in Rajendra Mahisbadwe and Archana Pethkar’‘s cases essentially proceed on the basis of the decision of the Apex Court in the case of Union of India v. Dattatray Mendhekar, reported in : (2008) 4 SCC 612, to hold that the directions contained in para 36 in the judgment in Milind’‘s case to the effect "that the admissions and appointments that have become final shall remain unaffected by this judgment" was in exercise of the jurisdiction under Article 142 of the Constitution of India by the Apex Court. The Division Bench judgments proceed further to hold that even the protection granted in service by the decision of the Apex Court in Kavita Solunke’‘s case was one granted by the Apex Court in exercise of its jurisdiction under Article 142, which is not available to the High Court under Article 226 or 227 of the Constitution of India.

44. The decision in Shalini’‘s case puts the controversy beyond the pale of any doubt on the aspect of the ratio of the three-Judge Bench decision of the Apex Court in Dattatraya Mendhekar’‘s case, which follows the earlier decisions of the two-Judge Benches in Bank of India v. Avinash D. Mandivikar, reported in : (2005) 7 SCC 690; and Additional General Manager/Human Resource BHEL v. Suresh Ramkrishna Burde, reported in : (2007) 5 SCC 336. It has been held in Shalini’‘s case that these decisions shall have no application to the cases where 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, and in the absence of an element of deceitfulness in order to derive unfair or undeserved benefit whenever statement or representation or stand is adopted by the person concerned, the rigors of Section 10 of the said Act would not apply.

45. The decisions of the Apex Court in the cases of Yogesh Ramchandra Naikwadi v. State of Maharashtra, reported in : (2008) 5 SCC 652; Regional Manager, Central Bank of India v. Madhulika Guruprasad Dahir and others, reported in : JT 2008 (8) SC 265; and Raiwad Manojkumar Nivruttirao v. State of Maharashtra and another, reported in : (2011) 9 SCC 798, follow some or the other decisions relied upon in Dattatray Mendhekar’‘s case, denying the protection. All these decisions stand on a totally different footing.

46. The Apex Court in Shalini’‘s case considered the earlier decisions in State of Maharashtra v. Milind and others, reported in : (2001) 1 SCC 4; R. Vishwanatha Pillai v. State of Kerala, reported in : (2004) 2 SCC 105; State of Maharashtra v. Sanjay K. Nimje, reported in : (2007) 14 SCC 481, State of Maharashtra v. Om Raj, reported in (2007) 14 SCC 488; Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, reported in : (2008) 9 SCC 54, Punjab National Bank v. Vilas Bokade and another, reported in : (2008) 14 SCC 545; Civil Appeal No. 7375 of 2000, decided on 12-12-2000; and Kavita Solunke v. State of Maharashtra and others, reported in : (2012) 8 SCC 430, wherein the Apex Court granted protection in service even after invalidation of the caste claim by the Scrutiny Committee. In Shalini’‘s case, the Apex Court further held that if the three-Judge Bench decision in Dattatray Mendhekar’‘s case wanted to overrule the other two Benches, it was competent to do the same and no presumption can be drawn that Dattatray a three-Judge Bench decision was of the opinion that the earlier two-Judge Bench decision had articulated an incorrect interpretation of the law.

47. The decision of the High Court refusing to grant protection has been set aside by the Apex Court in Kavita Solunke’‘s case. The Apex Court noticed the prevailing confusion arising out of different circulars and instructions on the question of Halba Koshti being Scheduled Tribe. In the said background, the Apex Court holds that even if the appellant therein was found to be a Koshti and not Halba by the Verification Committee, she was entitled to protection against ouster. It is held that the Constitution Bench had in Milind’‘s case noticed the background in which the confusion had prevailed for many years and the fact that the appointments and admissions were made for long time treating Koshti as Scheduled Tribe and directed that such admissions and appointments wherever the same had attained finality, will not be affected by the decision in Milind’‘s case. It holds that following the said principle, the Division Bench of the Apex Court eventually decided the connected matters in State of Maharashtra v. Om Raj, reported in (2007) 14 SCC 488, granting benefit of protection against ouster to some of the respondents on the authority of the view taken in Milind’‘s case. From the decision of the Apex Court in Kavita Solunke’‘s case, it can be gathered that the protection granted in Milind’‘s case would not be available where any fraud or any fabrication or any misrepresentation is made with a view to obtain an undeserved benefit in the matter of appointment. If there is no accusation that the certificate was false, fabricated or manipulated by concealment or otherwise, the refusal of benefit flowing from the decision in Milind’‘s case may not be justified.

48. Again in Shalini’‘s case, the decisions of the learned Single and of the Division Benches refusing to grant protection were set aside by the Apex Court. Following the decision in Kavita Solunke’‘s case, the Apex Court has held that any further analysis would make the present determination avoidably prolix and, therefore, an endeavour is made to cull out the principles relevant for deciding such like 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 rigor 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 the 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; and (c) this benefit accrues from the decision of this Court inter alia in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar : (2008) 9 SCC 54 : 2009 (1) Mh.L.J. (S.C.) 1, 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. The Apex Court further holds that it is not the intent of law to punish an innocent person and subject him to extremely harsh punishment. It holds that on one bank of 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.

49. In Milind’‘s case, the direction is in two parts-the first one was to save the admissions and degrees secured, and the other was general in nature invoking the doctrine of prospective overruling to save the admissions and appointments that have become final to remain unaffected by the said judgment. The doctrine of prospective overruling has been considered by the Apex Court in the case of M.A. Murthy v. State of Karnataka and others, reported in : (2003) 7 SCC 517. The relevant portion in para 8 of the said decision is reproduced below:

"8. The learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath v. State of Punjab (AIR 1967 SC 1643). In Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727] the view was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to void reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The last as declared applies to future cases. (See Ashok Kumar Gupta v. State of U.P. : (1997) 5 SCC 201, and Baburam v. C.C. Jacob : (1999) 3 SCC 362). It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision."

The doctrine of prospective overruling, which is a feature of American jurisprudence, is an exception to the normal principle of law. It is held in the aforesaid judgment that the prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation.

50. In the subsequent decision of the Apex Court in the case of P.V. George and others v. State of Kerala and others, reported in : (2007) 3 SCC 557, after following the aforesaid decision, the decision of House of Lords in National Westminister Bank Plc. v. Spectrum Plus Ltd., reported in (2005) 3 WLR 58, has been considered in which the doctrine of prospective of overruling is explained. It is stated therein that the prospective overruling takes several different forms and the ruling applies only to transactions or happenings after the date of the court decision. All transactions entered into, or events occurring, before that date continue to be governed by the law as it was conceived to be before the court gave its ruling. The other form discussed is that the ruling in its operation may be prospective and, additionally, retrospective in its effect as between the parties to the case in which the ruling is given. Or the ruling may be prospective and, additionally retrospective as between the parties in the case in which the ruling was given and also as between the parties in any other cases already pending before the courts.

51. In Milind’‘s case, the law prevailing as pronounced by the Apex Court on earlier occasions in Bhaiya Ram Munda v. Anirudh Patar and others, reported in : (1971) 1 SCR 804, and Dina v. Narayan Singh, reported in 38 ELR 212, was overruled by the Constitution Bench, and to avoid uncertainty, multiplicity of litigation, and reopening of the settled issues, the direction is issued that all admissions and appointments that have become final shall remain unaffected by the said judgment. In the absence of such a direction, the judgment would have operated retrospectively affecting all admissions and appointments that had become final, creating uncertainty, instability and chaotic situation. Such direction is, therefore, binding on all the Courts and accordingly it is expected to decide the cases. The doctrine of prospective overruling can also be considered to be a part of judicial legislation and has, therefore a binding effect under Article 141 of the Constitution of India so as to take care of the transitory situation like the laws made by the Parliament or the State Legislatures to save the past transactions and to prohibit their reopening of the concluded issues on the basis of new enactment.

52. We are, therefore, of the view that the ratio of the Full Bench decision in Ganesh Rambhau Khalele v. State of Maharashtra and others, reported in : 2009 (2) Mh.L.J. 788, in holding that the clarificatory direction issued in Milind’‘s case "that the admissions and appointments that have become final shall remain unaffected by this judgment" was one issued under Article 142 and it was not the direction under Article 141 of the Constitution of India, runs contrary to the ratio of the decisions of the Apex Court, more particularly the last two decisions of the Apex Court in the cases of Kavita Solunke and Shalini, and hence it remains no longer good law and a binding precedent. Consequently, we overrule the decisions of the Division Benches of this Court in Rajendra Ramaji Mahisbadwe v. Joint Commissioner and Vice Chairman, reported in: 2013 (3) Mh.L.J. 393; and Archana Dadarao Pethkar v. Joint Commissioner and Vice Chairman, reported in : 2013 (3) Mh.L.J. 764. We confirm the view taken by the other Division Benches of this Court in the cases of Prabhakar Nandanwar v. Joint Commissioner and Vice Chairman Scheduled Tribe Certificate, Caste Scrutiny Committee and others, reported in : 2013 (1) Mh.L.J. 156; and Mahendrakumar Namdeorao Hedaoo v. Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur and others, reported in : 2014 (4) Mh.L.J. 958, which is in conformity with the ratio of the decisions of the Apex Court in Kavita Solunke and Shalini’‘s cases. So far as the decisions of the Division Benches of this Court in the cases of Vijaya Deorao Nandanwar v. Chief Officer, Municipal Council, Wardha, reported in : 2013 (5) Mh.L.J. 153; Pradip Gajanan Koli v. State of Maharashtra, reported in : 2014 (3) Mh.L.J. 779; and Rakesh Sukanuji Dafade v. State of Maharashtra, reported in : 2014 (4) Mh.L.J. 307, are concerned, we concur with the view to the extent it is in conformity with the decisions of the Apex Court in Kavita Solunke and Shalini’‘s cases.

53. In view of above, we answer question No. 1 in the affirmative, holding that the relief of protection of service after invalidation of caste claim can be granted by the High Court on the basis of the decision of Hon’‘ble Supreme Court in the case of Kavita Solunke v. State of Maharashtra and others, reported in : (2012) 8 SCC 430, and the subsequent decision in the case of Shalini v. New English High School Association and others, reported in : (2013) 16-SCC-526.

54. We are conscious of the position of law that the High Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India cannot pass the orders, which the Apex Court can pass in exercise of its jurisdiction under Article 142 of the Constitution of India. Hence, the distinction between the two will have to be understood and kept in mind. The glaring instances of exercise by the Apex Court under Article 142 of the Constitution of India are reflected in the decisions of the Apex Court in the cases of Madhuri Patil, R. Vishwanatha Pillai and Yogesh Ramchandra Naikwadi. In spite of recording a finding that the admissions were secured and the degrees were obtained as a result of the fraud practised, the power under Article 142 of the Constitution of India is invoked to grant protection with certain conditions. Many a time, after declaring the law, the Apex Court in the operative part of the judgment gives some directions, which may either relax the application of law or exempt the case on hand from the rigor of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice, as has been held by the Apex Court in the case of Indian Bank v. ABS Marine Products Pvt. Ltd., reported in : 2006(5) ALL MR (SC) 162. The relief granted is restricted only to the persons in whose cases such orders are passed. The Court, therefore, should be careful to ascertain and follow the ratio decidendi and not the relief given under Article 142 of the Constitution of India. It is not the jurisdiction vested in the High Court under Article 226 or 227 of the Constitution of India to grant protection in employment after recording a specific finding that the employment was secured by practising a fraud or to relax the rigor of law and grant relief. We, therefore, do not subscribe the view taken by the Division Benches in the cases of Vijaya Deorao Nandanwar v. Chief Officer, Municipal Council, Wardha, reported in : 2013 (5) Mh.L.J. 153, and Rakesh Sukanuji Dafade v. State of Maharashtra and another, reported in : 2014 (3) Mh.L.J. 307, to the extent it is held that the direction issued by the Apex Court in exercise of jurisdiction under Article 142 of the Constitution of India is the law laid down, which is binding, and need to be followed. We, therefore, overrule the said view to that extent.

55. We are informed at the bar that while answering question No. 1, the Full Bench is also expected to answer the questions-(a) Whether the cases of persons belonging to the caste Special Backward Category, other than Koshti or Halba Koshti, are entitled to the same protection as has been granted to the persons belonging to caste Koshti or Halba Koshti on the basis of the decision in Milind’‘s case?, and (b) Whether the protection granted in Milind’‘s case becomes available even without going through the process of scrutiny of caste/tribe claim by the Scrutiny Committee under sub-section (2) of Section 6 of the said Act?

56. In the decision of the Division Bench of this Court in A.P. Ramtekkar and others v. Union of India, reported in : 2013 (2) Mh.L.J. 419, this Court has granted protection in service to the persons belonging to Halba Koshti, Thakur, Dhoba and Gowari castes on the basis of the decisions of the Apex Court in Milind and Kavita Solunke’‘s cases, relying upon the decision of the Apex Court in the case of Dattu Namdeo Thakur v. State of Maharashtra, reported in : (2012) 1 SCC 549. The said decision also holds that the decision of the Full Bench in Ganesh Khalele’‘s case is not in consonance with the decision of the Constitution Bench in Milind’‘s case. The protection in service has been granted even without undergoing the scrutiny of the caste claim by the Scrutiny Committee to find out whether those persons belong to Scheduled Tribes or not. The Division Bench holds that we find that apart from it being an empty formality, it would unnecessarily increase the workload of the Committees, which are already overburdened." The decision of the another Division Bench of this Court in Pradip Gajanan Koli v. State of Maharashtra, reported in : 2014 (2) Mh.L.J. 779, holds in para 26 that the case of A.P. Ramtekkar is decided in the facts of the case and the direction in the case of Dattu relied upon in the said case is in exercise of powers under Article 142 of the Constitution of India and it does not notice that the decision in the case of Kavita Solunke is confined to those who were claiming to be Halbas. The Division Bench in Pradip Koli’‘s case holds that the decision in A.P. Ramtekkar’‘s case is, therefore, not a binding precedent.

57. Now, we deal with the question No. (a) in para 55 of granting protection to persons of Special Backward Category other than "Koshti" and "Halba Koshti". While tracing out the history of the litigation, in initial paras we have noticed that the controversy is triggered as a result of the decision of the Apex Court in Madhuri Patil’‘s case. It was a case where the candidates belonging to Other Backward Class category of Hindu Koli claimed the benefits meant for the Scheduled Tribes category as the members of a sub-caste of Mahadeo Koli, a Scheduled Tribe. The decision in Madhuri Patil’‘s case was rendered on 2-9-1994. As a fall out of the said decision, the State Government found that there were several persons belonging to different castes and claiming to be the members of the said caste of main Scheduled Tribes included in the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra, who started facing difficulties of ouster from the employment in spite of rendering several years of service and their appointments having attained the finality. By issuing the Government Resolution dated 15-6-1995, all such castes identified to be similarly situated, were grouped together as a separate category of Special Backward Class providing them 2% reservation in the public employment. The following are the castes included in the said Government Resolution.



58. Para 4 of the Government Resolution dated 15-6-1995, which is translated, is reproduced below:

"4. The reservation given to the abovementioned ‘‘Special Backward Category’‘ will remain as a backlog for direct service recruitment and promotion. The principle of creamy layer will not apply to this category. The persons in the category who have prior to this on the basis of Scheduled Tribe certificate obtained admission in the Government, semi-government services on promotion, they should not be removed from this promotion or service."

Perusal of the aforesaid provision of the Resolution shows that the instructions are issued that the persons/candidates, who joined the Government service by producing a Caste Certificate belonging to Scheduled Tribe category and have been promoted, should not be removed from service or reverted from the post. The aforesaid position was further clarified in another Government Resolution dated 30-6-2004, and clause (a) therein being relevant is reproduced below:

"(a) The non-tribals who have received recruitment promotion in the government/semi-governmental services on the reserved seats for the Scheduled Tribes prior to 15-6-1995, should not be removed from service or should not be demoted. They should be shown in the constituent to which they belong. Henceforth the reservation benefits entitled to that particular constituent will be due to them and the vacated posts in this manner should be filled from the tribal category."

In terms of the aforesaid Resolution, the non-tribals, who have received the promotion against the post reserved for Scheduled Tribes prior to 15-6-1995 neither to be removed from service nor to be demoted from the post to which they were promoted. However, these persons should be shown in the constituent to which they belong and the post remaining vacant on account of their leaving the job, should be filled in from the tribal category. The operation of both these Government Resolutions is not restricted to the persons belonging to caste "Koshti" or "Halba Koshti".

59. The Government Resolutions dated 15-6-1995 and 30-6-2004 fell for consideration of the Apex Court in the case of Punjab National Bank v. Vilas Bokade and another, reported in : (2008) 14 SCC 545. The decision was rendered by the Division Bench of the Apex Court concerning of M/s. H.K. Sema and V.S. Sirpurkar, JJ. Both the Hon’‘ble Judges have written concurring judgments. The independent view taken by both the Judges clearly hold that the protection of both these Government Resolutions was available as a result of the decision in Milind’‘s case. In Shalini’‘s case, the Apex Court has held that there is a palpable wisdom in the office memorandum dated 10-8-2008 on the similar lines issued by the Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training. In respect of the Government Resolution dated 15-6-1995, Shalini’‘s case holds that virtually it grants status quo as regards employment inasmuch it states that those persons, who, on the basis of the Caste Certificates, already stand appointed or promoted in the Government of Semi-Government, shall not be demoted or removed from service. After referring to various castes grouped together under the Government Resolution dated 15-6-1995 read with the Government Resolution dated 7-10-1994, the Apex Court posed a question in para 9, "Can it, therefore, seriously be contended that the 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 a Special Backward Class, be visited with termination of her employment? It is answered by holding that "We think that, that is not the intent of law and certainly was not of the three-Judge Bench was confronted with in Dattatray".

60. In the decision of the Apex in R. Unnikrishnan and another v. V.K. Mahanudevan and others, reported in : 2014 (4)-SCC-434, a question was involved regarding protection in the employment, which was secured as a result of confusion, which was prevailing till the Constitution (Scheduled Castes) Order, 1950 was amended in the year 2007, which did not include Ezhuvas and Thiyyas known as Thandan. In para 29, the Apex Court has held that the question of ouster of Ezhuvas and Thiyyas known as Thandan on account of the confusion that prevailed for a considerable length of time till the decision of the Apex Court in Pattika Jathi’‘s case would be unjustified both in law and on the principles of equity and good conscience. Relying upon the decision in Milind’‘s case, followed in Kavita Solunke’‘s case (supra), Sanjay Nimje’‘s case (supra) and Sandeep Subhash Parate v. State of Maharashtra and others, reported in : (2006) 7 SCC 501, the Apex Court has held that in the absence of lack of bona fides, the benefits granted till 30th August, 2007 shall remain undisturbed, any advantage in terms of promotion or otherwise which the respondent may have been granted after the said date on the basis of his being treated as a Scheduled Caste candidate may if so advised be withdrawn by the Competent Authority. It is made clear that the respondent in the said case shall not be entitled to claim any benefit in future as a Scheduled Caste candidate, but no benefit admissible to him as an OBC candidate shall be denied. Following the said decision of the Apex Court, the Division Bench of this Court in Rakesh Dafade’‘s case (supra) has granted protection to the persons belonging to "Koli" caste falling in the Special Backward Class category.

61. In view of the aforestated law laid down by the Apex Court after considering the effect of the Government Resolutions dated 15-6-1995 and 30-6-2004, which are applicable to all the persons belonging to the Special Backward Class category, we are of the view that the protection granted in Milind’‘s case to the persons belonging to caste "Koshti" or "Halba Koshti" in terms of the decision of the Apex Court in Milind’‘s case, is also available to all the persons belonging to the Special Backward Class category included in the Government Resolution dated 15-6-1995. There cannot be any different treatment for the persons, who are similarly situated, merely for the reason that in most of the cases, the persons belonging to caste "Koshti" or "Halba Koshti" have approached the Apex Court for grant of protection. The interpretation of Section 10 of the said Act placed by the Apex Court in Shalini’‘s case, applies with equal force to the guideline Nos. 14 and 15 in Madhuri Patil’‘s case. In view of this, we do not find any justification or propriety in the action of the Government of India in refusing to grant protection to the persons belonging to the caste other than "Koshti" or "Halba Koshti". We answer question No. (a) in para 55 above, holding that the persons belonging to Special Backward Category are entitled to the same protection as has been granted to the persons belonging to caste "Koshti" and "Halba Koshti".

62. We, therefore, find that the decision of the Division Bench of this Court in the case of Pradip Koli to the extent it holds in para 26 that "the case of A.P. Ramtekkar does not notice that the decision in the case of Kavita Solunke is confined to those who were claiming to be Halbas and therefore, it is not a binding principle" does not lay down a correct legal position and hence it is partly overruled, making it further clear that we concur with rest of the judgment as laying down a correct position of law in respect of "Koshti" and "Halba Koshti". Similarly, in Rakesh Dafade’‘s case, the Division Bench has granted protection to the persons belonging to "Koli" caste falling in the Special Backward Class category. We do not find that the grant of such protection is contrary to any of the decisions of the Apex Court

63. In the decision of the Division Bench of this Court in A.P. Ramtekkar’‘s case, it is held that in view of the law laid down by the Hon’‘ble Apex Court in State of Maharashtra v. Milind (supra), the petitioners who are Halba Koshtis can now by no stretch of imagination be held to be belonging to Scheduled Tribe. We, therefore, fail to understand the approach of the employer in compelling the petitioners to undergo the scrutiny as to whether they belong to Scheduled Tribes or not, when, as a matter of fact, they have given up their claim as belonging to Scheduled Tribes. We find that apart from it, being an empty formality, it would unnecessarily increase the workload of the Committees, which are already overburdened. No doubt, the Special Leave to Appeal (C) No(s). 11831-11832/2013 has been dismissed in limine by the Apex Court on 12-4-2013, holding that upon perusal of the material, we do not find any legal and valid ground for interference. However, that by itself does not prevent us from examining the said decision on merits. The dismissal of the SLP in limine would not constitute a ratio of the decision. Hence, we proceed to consider the said decision on its own merits as law laid down by the High Court.

64. We are unable to concur with the aforesaid view of the Division Bench of this Court in A.P. Ramtekkar’‘s case, the reason being that the cases of fraudulent claims must be surfaced. The protection can be granted only after verification and scrutiny of the caste claim by the Scrutiny Committee. In Madhuri Patil’‘s case, the Apex Court has observed that spurious tribes have become a threat to the genuine tribals, who are defrauding the true Scheduled Tribes to their detriment and deprivation, snatching away their benefits. The spurious and ineligible persons, who falsely gain entry in public employment and resort to dilatory tactics and create hurdles in completion of the enquiry by the Scrutiny Committee, are not entitled to any protection. In the words of the Apex Court in Shalini’‘s case, the cases of dishonest and mendacious persons who have deliberately claimed consanguinity with Scheduled Castes or Scheduled Tribes, are not entitled to protection. One of the objects of the said Act, as it appears from the objects and reasons, is to provide for deterrent punishment for those, who indulge in fraudulent activities. Such objects cannot be defeated by dispensing with the enquiry and scrutiny by the Scrutiny Committee. On the contrary, it will be in furtherance of the objects of providing constitutional reservations to genuine tribals. On question No. (b) in para 55, we answer that the protection granted in Milind’‘s case becomes available only upon invalidation of the caste claim by the Scrutiny Committee, it would not be merely an empty formality increasing the workload of the Committees and that the protection is not available without going through the process of Scrutiny Committee under sub-section (2) of Section 6 of the said Act. It is only to this extent, we overrule partly the decision in A.P. Ramtekkar’‘s case.

65. The factual position to which the law laid down is to be applied, is stated as under:

(a) Before coming into force of the said Act on 18-10-2001, the appointments and promotions were made against the post reserved for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Classes category (consolidatedly called as "the backward class category") merely on the basis of the production of the Caste Certificates issued by the Competent Authorities with or without the condition of producing a caste validity certificate.

(b) The decision in Madhuri Patil’‘s case was delivered by the Apex Court on 2-9-1994, and by issuing the Government Resolutions dated 15-6-1995 and 30-6-2004, all the appointments and promotions made up to 15-6-1995 against a post reserved for backward class category are protected and such appointments and promotions cannot be cancelled.

(c) After coming to force of the said Act on 18-10-2001, no appointments and/or promotions could be made without production of a caste validity certificate under subsection (2) of Section 6 of the said Act, but it is a fact that some such appointments have been made.

(d) In terms of the decision in Milind’‘s case, all the appointments that have become final up to 28-11-2000 stand protected subject to the conditions as under:

(i) that upon verification by the Scrutiny Committee, the Caste Certificate produced to secure an appointment, is not found to be false or fraudulent,

(ii) that the appointee shall not take any advantage in terms of promotion or otherwise after 28-11-2000 solely on the basis of his claim as a candidate belonging to any of the backward class categories in respect of which his claim is invalidated by the Scrutiny Committee, and

(iii) that it shall be permissible for the Competent Authority to withdraw the benefits or promotions obtained after 28-11-2000 as a candidate belonging to backward class category for which the claim has been rejected.

66. In view of the law, which we have laid down, the relief of protection of service after invalidation of caste claim can be granted by the High Court on the basis of the judgment of the Hon’‘ble Supreme Court in the cases of Kavita Solunke v. State of Maharashtra and others, reported in : 2012 (8) SCC 430, and Shalini v. New English High School Association and others, reported in : (2013) 16-SCC-526. The manner and the extent to which such protection is to be made available, is laid down as under:

(a) The appointments or promotions made up to 15-6-1995 in public employment on the basis of the Caste Certificates against a post reserved for any of the backward class categories, stand protected in terms of the Government Resolutions dated 15-6-1995 and 30-6-2004 and shall not be disturbed, and the appointments that have become final between 15-6-1995 and 28-11-2000 shall remain unaffected in view of the decision of the Apex Court in Milind’‘s case.

(b) The grant of protection in terms of the Government Resolutions dated 15-6-1995 and 30-6-2004 and the decision in Milind’‘s case, shall be subject to the following conditions:

(i) that upon verification by the Scrutiny Committee, the Caste Certificate produced to secure an appointment, is not found to be false or fraudulent,

(ii) that the appointee shall not take any advantage in terms of the promotion or otherwise after 28-11-2000 solely on the basis of his claim as a candidate belonging to any of the backward class categories, in respect of which his claim is invalidated by the Scrutiny Committee, and

(iii) that it shall be permissible for the Competent Authority to withdraw the benefits or promotions obtained after 28-11-2000 as a candidate belonging to backward class category for which the claim has been rejected.

(c) Any appointments that have become final against a post reserved for any of the categories of backward class on the basis of the production of Caste Certificate without incorporating a specific condition in the order of appointment that it is it is subject to production of caste validity certificate after 28-11-2000 and before coming into force of the said Act on 18-10-2001 shall also remain protected subject to the conditions mentioned in clause (b) of para 64.

(d) After coming into force of the said Act on 18-10-2001, no benefit or appointment can be obtained or secured in any public employment against a post reserved for any of the backward class categories merely on the basis of the production of a caste certificate and without producing a caste validity certificate from the Scrutiny Committee. Such appointments are not protected and shall be liable to be cancelled immediately upon rejection of the caste claim by the Scrutiny Committee.

67. There cannot be a dispute that the High Court in exercise of its jurisdiction under Article 226 or 227 of the Constitution of India cannot grant protection in employment after recording a finding that such employment was secured by practising fraud or by producing false or fraudulent caste certificate. It is urged that the High Court in exercise of its jurisdiction under Article 226 or 227 of the Constitution of India cannot grant protection in service, even if there is no fraud practised to secure an appointment, as has been held in earlier paras. In the decision in the case of Ramesh Chandra Sankla and others v. Vikram Cement and others, reported in : (2008) 14 SCC 58, the equity jurisdiction of the High Court under Articles 226 and 227 of the Constitution is elaborated in paras 90, 91 and 98, which are reproduced below:

"90. Now, it is well settled that jurisdiction of the High Courts under Articles 226 and 227 is discretionary and equitable. Before more than half a century, the High Court of Allahabad in the leading case of Jodhey v. State (AIR 1952 All 788) observed: (AIR p. 792, para 10)

"10.... There are no limits, fetters or restrictions placed on this power of superintendence in this clause and the purpose of this article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein."

(emphasis supplied)"

"91. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must "advance the ends of justice and uproot injustice"."

"98. From the above cases, it clearly transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the court must take into account the balancing of interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills v. State of Haryana [(1980) 2 SCC 437] courts of equity should go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and good conscience."

68. In the concurring decision of B.L. Hansaria, J., as he then was, in the case of B.C. Chaturvedi v. Union of India and others, reported in : (1995) 6 SCC 749, it has been held in paras 21 and 22 as under:

"21. HANSARIA, J. (concurring)-I am in respectful agreement with all the conclusions reached by learned brother Ramaswamy, J. This concurring note is to express my view on two facets of the case. The first of these relates to the power of the High Court to do "complete justice", which power has been invoked in some cases by this Court to alter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Courts. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the poverty of the person concerned. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such a case being made out. What a difference! May it be pointed out that Service Tribunals too, set up with the aid of Article 323-A have the power of striking down a legislative act."

"22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks of the judicial conscience."

69. In the case of Madhuri Patil, the Apex Court has considered the question of exercise of equity jurisdiction in para 15, which is reproduced below:

"15. Whether appellants are entitled to their further continuance in the studies is the further question. Often the plea of equities or promissory estoppel would be put forth for continuance and completion of further course of studies and usually would be found favour with the Courts. The Courts have constitutional duty and responsibility, in exercise of the power of its judicial review, to see that constitutional goals set down in the Preamble, the Fundamental Rights and the Directive Principles of the Constitution, are achieved. A party that seeks equity, must come with clean hands. He who comes to the Court with false claim, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. There is no estoppel as no promise of the social status is made by the State when a false plea was put forth for the social status recognised and declared by the Presidential Order under the Constitution as amended by the SC and ST Amendment Act, 1976, which is later found to be false. Therefore, the plea of promissory estoppel or equity have no application. When it is found to be a case of fraud played by the concerned, no sympathy and equitable considerations can come to his rescue. Nor the plea of estoppel is germane to the beneficial constitutional concessions and opportunities given to the genuine tribes or castes. Courts would be circumspect and vary in considering such cases."

70. It is thus well settled that the High Court exercising its jurisdiction under Article 226 or 227 of the Constitution of India not only acts as a Court of law, but also as a court of equity. There are no limits, fetters or restrictions placed on this power of superintendence. The purpose of it is to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that the justice is meted out fairly and properly. The power is to be exercised to advance the ends of justice. While granting relief, the Court must take into account the balancing interests and equities and granting or withholding of relief, would depend upon the considerations of justice, equity and good conscience.

71. Chapter III under the Constitution of India does not provide a fundamental right of being appointed or promoted to any post either to a member of any backward class community or to a person belonging to open category. Merely because a post is reserved for any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category or Classes, and a person belonging to such backward class category becomes eligible to compete for the post, it would not follow that he gets a right of being appointed or promoted to the said post. If a person really belonging to any of the backward class categories for which a post is reserved is not selected or appointed to such post, there would be no violation of any right, much less a fundamental right of being appointed or promoted to such post. No doubt that if someone, who does not belong to any such category of backward class for which the post is reserved, is appointed to the post, then it necessarily deprives the genuine candidates of their position in the zone of consideration of eligible candidates. If such deprivation or detriment is by the spurious persons, who gain entry in the public employment by fraudulent means as is understood in law and retain or improve it by adopting dilatory tactics and creating hurdles in completing the enquiry by the Scrutiny Committee, then the question of protecting such person in service by the High Court in exercise of its equity jurisdiction under Articles 226 and 227 of the Constitution of India, would not arise. There is no fundamental right or even a statutory right to seek protection in service upon invalidation of a caste claim, but it is a question of exercise of the equity jurisdiction under Article 226 or 227 of the Constitution of India. We, therefore, do not subscribe to the view taken by the Division Benches in the cases of Vijay Deorao Nandanwar and Rakesh Sukanuji Dafade to the extent it holds (Para 34 of Rakesh Dafade’‘s case) that protection need to be granted under Articles 14, 15, 16, 19 and 21 read with Articles 341, 342, 141 and 142 of the Constitution of India. The said decisions are overruled to that extent.

72. There cannot be any strait-jacket formula laid down either to refuse or grant protection in the employment either at the initial stage or at the promotional stage. The approach has to be practical and pragmatic rather than technical and pedantic keeping in view the object and purpose of the Constitution in providing the benefits and concessions to a particular category of backward class. The Court has to strike the balance between the conflicting claims of genuine candidates, who are denied the benefits meant for them and all other persons, who honestly and genuinely believe and claim themselves to be belonging to a particular category for whom the concessions and benefits were meant. The Court will have to consider the facts and circumstances of each case to decide whether the protection is to be granted or refused, and if it is to be granted, up to what stage and extent.

73. Apart from bona fides of the candidate claiming protection in service, the two tests laid down by the Apex Court in Shalini’‘s case-one was the fraudulent claim and the other was concerning eligibility to the benefits on the basis of the Caste Certificate. There are several ways and means of securing the benefits by practising fraud, misrepresentation, etc., which cannot be catalogued. Similarly, there are several angles to test the bona fides and consider the equity, which also cannot be catalogued. In cases of candidates belonging to castes other than Special Backward Category, the Court will have to look into the history of the controversy to find out whether the benefits were secured as a result of confusion or uncertainty prevailing in the area of eligibility to claim such benefits, as has been held by the Apex Court in the case of R. Unnikrishnan.

74. In verification and scrutiny of the caste claim, the Scrutiny Committee is normally concerned with the process by which a Caste Certificate is obtained. It is concerned with the information furnished, the statements made, and the documents produced before the Competent Authority to obtain a Caste Certificate. It is the question of correctness and genuineness of the Caste Certificate obtained and produced. Hence, the scope of enquiry should extend to the material on the basis of which the Caste Certificate is issued. The learned counsel appearing for the Scrutiny Committee could not make even a statement before this Court that in any of the orders passed by the Scrutiny Committee, such exercise was carried out. Be that as it may. Mere using the words ‘‘false’‘, ‘‘fraudulent’‘, ‘‘misrepresentation’‘, ‘‘collusion’‘, ‘‘suppression’‘, etc., in the order of the Scrutiny Committee shall not be a decisive factor unless there is relevant material available on record to substantiate such finding. There may be cases where the order of the Scrutiny Committee does not use the words like ‘‘false’‘, fraudulent’‘, ‘‘misrepresentation’‘, ‘‘collusion’‘, ‘‘suppression’‘, etc., but it becomes apparent from the material available on record that it is a case of securing the benefits by practising a fraud.

75. We, therefore, do not enter into the merits of the claim and leave it for the concerned Benches to decide, on the facts and circumstances of each case, whether the protection need to be granted or not. But we conclude in this judgment that-

(i) mere invalidation of the caste claim by the Scrutiny Committee would not entail the consequences of withdrawal of benefits or discharge from the employment or cancellation of appointments that have become final prior to the decision in Milind’‘s case on 28-11-2000,

(ii) upon invalidation of the caste claim by the Scrutiny Committee, the benefits obtained or appointments secured from 28-11-2000 upto 18-10-2001 can be withdrawn or cancelled, depending upon the terms of the employment, if any, in writing,

(iii) the benefits obtained or appointments secured after coming into force of the said Act on 18-10-2001 can be withdrawn or cancelled immediately upon invalidation of the caste claim by the Scrutiny Committee,

(iv) the benefit of protection in service upon invalidation of the caste claim is available not only to the persons belonging to "Koshti" and "Halba Koshti", but it is also available to the persons belonging to Special Backward Class category on the same terms

as is available to "Koshti" and "Halba Koshti", and
(v) the claim of the persons belonging to Nomadic Tribes, Vimukta Jatis and Other Backward Class category shall be decided on the lines of the decision of the Apex Court in the case of R. Unnikrishnan and another v. V.K. Mahanudevan and others, reported in : 2014 (4)-SCC-434.

76. On the question No. 2 framed for the decision by the Full Bench, we must express that the question of res judicata, including the constructive res judicata, may involve adjudication of facts and law both. Merely because a petition was filed claiming the relief of protection and that was either withdrawn or dismissed by the Court, that by itself would not follow that the subsequent petition claiming the same relief would be barred by the principle of res judicata. Similarly, in spite of invalidation of the caste claim by the Scrutiny Committee, there may not be occasion to claim protection in employment in a petition challenging the order of the Scrutiny Committee, if by the time the petition is decided, no action is taken by the employer to terminate the services on the basis of the order of the Scrutiny Committee. In such a situation, claiming the relief of setting aside the termination would be premature and the bar of constructive res judicata may not come in the way. It, therefore, depends upon several factors, like the fresh cause of action arising because of intervening events requiring either to review the earlier decision rendered or to adjudicate the controversy or prematurely claiming the relief of protection, etc. We do not think that any further opinion need to be expressed by the Full Bench on this aspect. We leave this point to be open and decided by the appropriate Division Bench, keeping in view the facts and circumstances of each case. The question No. 2 is, therefore, answered accordingly.

77. The net result of the aforesaid discussion is that the question of law at serial No. 1 is answered in the affirmative, holding that the relief of protection of service after invalidation of the caste claim can be granted by the High Court on the basis of the judgments of the Apex Court in the cases of Kavita Solunke : (2012) 8-SCC-430 and Shalini : (2013) 16-SCC-526 in the manner stated in this judgment, and we do not think that the question of law at serial No. 2 need to be decided by the Full Bench. We, therefore, leave the said question to be decided by the Division Bench on the basis of the facts and circumstances of each case.

78. In view of above, the matters are required to be placed before the concerned Division Benches to deal with them on merits.

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