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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.       5821              OF     2012   (Arising out of S.L.P. (C) No.33716 of 2009)

Kavita Solunke …Appellant

Versus

State of Maharashtra and Ors. …Respondents

J     U     D     G     M     E     N     T   

T.S.     THAKUR,     J.   

1. Leave granted.

2. The High Court of Judicature at Bombay has while  

dismissing Writ Petition No.1810 of 2008 filed by the  

appellant herein refused to interfere with the order dated  

20th February, 2008 passed by the Scheduled Tribe  

Certificate Scrutiny Committee, Amravati.  The Committee  

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in turn had declared that the appellant was a ‘Koshti’  by  

Caste and not a ‘Halba’ which is a notified Scheduled Tribe.  

The facts giving rise to the present appeal lie in a narrow  

compass and may be summarised as under:

Shri Shivaji High School, Dongaon, of which  

respondent No.5 happens to be the Head Master, invited  

applications in terms of advertisement dated 20th July, 1995  

against three vacant posts of teachers in the said school.  

One each of these two posts was reserved for Scheduled  

Caste and Scheduled Tribe Candidates. The third post was  

ostensibly in open category and required a minimum  

qualification of B.P.Ed., which the appellant herein did not  

possess. The appellant claiming to be a ‘Halba’  applied for  

the solitary post reserved for the Scheduled Tribe  

candidates and was appointed as a low grade co-teacher in  

the pay scale of Rs.1200-2040 with effect from 1st August,  

1995 or the date she joined the said post. The appointment  

was on probation for an initial period of two years which  

was duly approved by the Zila Parishad Education Officer in  

terms of his order dated 12th July, 1996. It is not in dispute  

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that the appellant satisfactorily completed the period of  

probation and was confirmed in service as an Assistant  

Teacher in due course.   

A decade after her initial appointment, respondent  

No.5 asked the appellant to get her caste credentials  

verified from the Scheduled Tribe Certificate Scrutiny  

Committee. The appellant complied with the said direction  

and submitted her certificate to the Committee concerned,  

which in turn forwarded it for a proper vigilance inquiry. In  

the course of the said inquiry, the school record of the  

appellant was also looked into which showed that the  

appellant’s father was a ‘Koshti’  by caste which caste was  

not a Scheduled Tribe in Maharashtra.   

The Committee, therefore, concluded that the Caste  

Certificate of the appellant was invalid and accordingly  

cancelled the same. This led to the school passing an Order  

dated 23rd February, 2008 whereby the services of the  

appellant were terminated with immediate effect. The  

termination Order said:

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“……..You were appointed on the post reserved for  candidate of Scheduled Tribes. At the time of  appointment you produced certificate showing that you  belong to the category of Scheduled Tribes. There after  the said Certificate was sent for verification to the  Caste Scrutiny Committee. The said Committee after  giving opportunity of hearing and adducing of evidence  decided the enquiry and came to the conclusion that  you do not belong to the category as mentioned in the  certificate produced by you and consequently  invalidated the caste certificate produced by you are  not entitled to continue on the post as the post is  reserved for the candidate of Scheduled Tribes  Community.”

Aggrieved by the above, the appellant filed an appeal  

before the School Tribunal under Section 9 of the  

Maharashtra Employees of Private School (Condition of  

Service) Regulation Act, 1977 which failed and was  

dismissed by the Tribunal by its order dated 25th  

September, 2008. The appellant then preferred a writ  

petition before the High Court of Nagpur challenging the  

order passed by the Scheduled Tribe Certificate Scrutiny  

Committee invalidating her caste claim. The High Court saw  

no reason to interfere and dismissed the said petition by  

the order impugned before us.  The High Court observed:

“... neither the petitioner personally nor through her  agent appeared before the Caste Scrutiny Committee  nor submitted any reply to the Vigilance Cell Inquiry  Report. Perusal of the order of Caste Scrutiny  

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Committee further reveals that the Vigilance Cell  collected the document dated 18.10.1956 i.e., extract  of School entry in respect of father of the petitioner,  wherein caste of father of the petitioner mentioned as  “Koshti”. Similarly, the another document collected by  the Vigilance Cell further shows that the petitioner does  not belong to “Halba”  Scheduled Tribe. Petitioner also  failed to establish affinity with the “Halba”  Scheduled  Tribe. In the circumstances, the conclusion arrived at  by the Caste Scrutiny Committee is just and proper and  needs no interference.”

3. The present appeal assails the correctness of the  

above order as already noticed.   

4. Learned counsel appearing for the appellant raised a  

short point before us. He contended that the appointment  

of the appellant having attained finality, could not have  

been set aside on the ground that Koshti-Halbas were not  

‘Halbas’ entitled to the benefit of reservation as Scheduled  

Tribes. Relying upon the decision of the Constitution Bench  

of this Court in State of Maharashtra v. Milind (2001) 1  

SCC 4, it was urged by the learned counsel that the  

appellant was entitled to the protection of continuance in  

service, no matter ‘Halba-Koshtis’  were not recognised as  

‘Halbas’ by this Court. The High Court had not, according to  

the learned counsel, correctly appreciated the decision of  

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this Court in Milind’s case (supra) and thereby fallen in an  

error in dismissing the writ petition filed by the appellant.  

He also placed reliance upon the Office Memorandum issued  

by the Government of India, Ministry of Personnel, Public  

Grievances and Pensions, Department of Personnel &  

Training dated 10th August, 2010 whereby protection  

against ouster of those appointed in the Scheduled Tribe  

category had been extended to persons appointed on the  

basis of their being ‘Halba-Koshti’  in the State of  

Maharashtra. It was further urged that relying upon the  

said subsequent development, this Court had allowed one  

Raju Gadekar, a candidate similarly placed as the appellant  

to seek the benefit under the circular by moving a suitable  

application before the High Court.  There was according to  

the learned counsel no reason to take a different view in  

the case of the appellant, especially when   this Court had  

in Milind’s case (supra) followed in subsequent decisions,  

extended protection against ouster from service to those  

appointed in the Scheduled Tribe category on the basis of  

the certificates showing the persons appointed to be a  

‘Koshti-Halba’ by caste.

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5. On behalf of the respondent, it was urged that the  

decision of this Court in Milind’s case (supra) was  

distinguishable from the facts of the case at hand inasmuch  

as that case dealt with admission to a professional course  

and not with appointment to any public office.  It was  

further argued that the decision of this Court in Milind’s  

case (supra) had been explained by this Court in  

subsequent decisions including R. Vishwanatha Pillai v.  

State of Kerala (2004) 2 SCC 105; State of  

Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481;  

Bank of India v. Avinash D. Mandivikar (2005) 7 SCC  

690 and Union of India v. Dattatray (2008) 4 SCC 612  

and the benefit limited only to cases arising out of  

admission to professional courses where the candidate had  

already completed the course and their ouster would result  

in no benefit to anyone.

6. In Milind’s case (supra), the Constitution Bench of  

this Court was examining whether Koshti was a sub-tribe  

within the meaning of Halba/Halbi as appearing in the  

Constitution (Scheduled Tribes) Order, 1950.  The  

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respondent in that case had obtained a Caste Certificate  

from the Executive Magistrate to the effect that he  

belonged to ‘Halba’ Scheduled Tribe.  He was on that basis  

selected for appointment to the MBBS Degree Course in the  

Government Medical College for the session 1985-86  

against a seat reserved for Scheduled Tribe candidates. The  

certificate relied upon by the respondent-Milind was sent to  

the Scrutiny Committee, the Committee recorded a finding  

after inquiry to the effect that the respondent did not  

belong to Scheduled Tribe.  In an appeal against the said  

Order, the Appellate Authority concurred with the view  

taken by the Committee and declared that the respondent-

Milind belonged to ‘Koshti Caste’  and not to ‘Halba Caste’  

Schedule Tribe.   

7. In a writ petition filed against the said order by Milind,  

the High Court held that it was permissible to examine  

whether any sub-division of a tribe was a part and parcel of  

the tribe mentioned therein and whether ‘Halba-Koshti’ was  

a sub-division of the main tribe ‘Halba’ within the meaning  

of Entry 19 in the Constitution (Scheduled Tribes) Order,  

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1950.  The High Court further held that Halba-Koshti was  

indeed a sub-tribe of Halba appearing in the Presidential  

Order.

8. In an appeal filed against the above order of the High  

Court, this Court held that the Courts cannot and should not  

expand their jurisdiction while dealing with the question as  

to whether a particular caste or sub-caste, tribe or sub-

tribe is included in any one of the Entries mentioned in the  

Presidential Orders issued under Articles 341 and 342.  

Allowing the State Government or the Courts or other  

authorities or tribunals to hold an inquiry as to whether a  

particular caste or tribe should be considered as one  

included in the Schedule to the Presidential order, when it is  

not so specifically included would lead to problems. This  

Court declared that the holding of an inquiry or production  

of any evidence to decide or declare whether any tribe or  

tribal community or part thereof or a group or part of a  

group is included in the general name, even though it is not  

specifically found in the entry concerned would not be  

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permissible and that the Presidential Order must be read as  

it is.

9. Having said so, this Court noticed the stand taken by  

the Government on the issue of ‘Halba-Koshti’ from time to  

time and the circulars, resolutions, instructions but held  

that even though the said circulars, instructions had shown  

varying stands taken by the Government from time to time  

relating to ‘Halba-Koshti’  yet the power of judicial review  

exercised by the High Court did not extend to interfering  

with the conclusions of the competent authorities drawn on  

the basis of proper and admissible evidence before it. This  

Court observed:

“…….The jurisdiction of the High Court would be much  more restricted while dealing with the question whether  a particular caste or tribe would come within the  purview of the notified Presidential Order, considering  the language of Articles 341 and 342 of the  Constitution. These being the parameters and in the  case in hand, the Committee conducting the inquiry as  well as the Appellate Authority, having examined all  relevant materials and having recorded a finding that  Respondent 1 belonged to “Koshti”  caste and has no  identity with “Halba/Halbi” which is the Scheduled Tribe  under Entry 19 of the Presidential Order, relating to the  State of Maharashtra, the High Court exceeded its  supervisory jurisdiction by making a roving and in- depth examination of the materials afresh and in  coming to the conclusion that “Koshtis”  could be  treated as “Halbas”. In this view the High Court could  not upset the finding of fact in exercise of its writ  jurisdiction.”

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10. What is important is that this Court noticed the  

prevailing confusion arising out of different circulars and  

instructions on the question of ‘Halba-Koshti’  being  

Scheduled Tribes.  Dealing with the observations made by  

the High Court and referring to circulars, instructions and  

resolution issued by the Government from time to time, this  

court observed:

“33. The High court in paras 20 to 23 dealt with  circulars/resolutions/ instructions/orders made by the  Government from time to time on the issue of “Halba- Koshtis”. It is stated in the said judgment that up to  20-7-1962 “Halba-Koshtis” were treated as “Halbas” in  the specified areas of Vidarbha. The Government of  Maharashtra, Education and Social Welfare Department  issued Circular No. CBC 1462/3073/M to the effect that  “Halba-Koshtis” were not Scheduled Tribes and they are  different from “Halba/Halbis”. In the said circular it is  also stated that certain persons not belonging to  “Halba”  Tribe have been taking undue advantage and  that the authorities competent to issue caste  certificates should take particular care to see that no  person belonging to “Halba-Koshtis”  or “Koshti”  community is given a certificate declaring him as a  member of Scheduled Tribes. On 22-8-1967 the  abovementioned circular of 20-7-1962 was withdrawn.  Strangely, on 27-9-1967, another Circular No. CBC- 1466/9183/M was issued showing the intention to treat  “Halba-Koshti” as “Halba”. On 30-5-1968 by Letter No.  CBC-1468-2027-O, the State Government informed the  Deputy Secretary to the Lok Sabha that “Halba-Koshti”  is “Halba/Halbi” and it should be specifically included in  the proposed amendment Act. The Government of  Maharashtra on 29-7-1968 by Letter No. EBC- 1060/49321-J-76325 informed the Commissioner for  Scheduled Castes and Scheduled Tribes that “Halba-

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Koshti” community has been shown included in the list  of Scheduled Tribes in the State and the students  belonging to that community were eligible for the  Government of India Post-Matric Scholarships. On 1-1- 1969 the Director of Social Welfare, Tribal Research  Institute, Pune, by his Letter No. TRI/I/H.K./68-69  stated that the State Government could not in law  amend the Scheduled Tribes Order and that a tribe not  specifically included, could not be treated as Scheduled  Tribe. In this view the Director sought for clarification.  The Government of India on 21-4-1969 wrote to the  State Government that in view of Basavalingappa case  “Halba-Koshti”  community could be treated as  Scheduled Tribe only if it is added to the list as a sub- tribe in the Scheduled Tribes Order and not otherwise.  Thereafter, few more circulars were issued by the State  Government between 24-10-1969 and 6-11-1974 to  recognise “Halba-Koshtis”  as “Halbas” and indicated as  to who were the authorities competent to issue  certificates and the guidelines were given for inquiry.  There was again departure in the policy of the State  Government by writing a confidential Letter No. CBC- 1076/1314/Desk-V dated 18-1-1977. The Government  informed the District Magistrate, Nagpur, that “Halba- Koshtis”  should not be issued “Halba” caste certificate.  Thereafter, few more circulars, referred to in para 22 of  the judgment, were issued. It may not be necessary to  refer to those again except to the circular dated 31-7- 1981 bearing No. CBC-1481/(703)/D.V. by which the  Government directed that until further orders insofar as  “Halbas”  are concerned, the School Leaving Certificate  should be accepted as valid for the purpose of the  caste. Vide resolution dated 23-1-1985 a new Scrutiny  Committee was appointed for verification of caste  certificates of the Scheduled Tribes. The High Court had  observed in para 23 of the judgment that several  circulars issued earlier were withdrawn but the said  circular dated 31-7-1981 was not withdrawn. For the  first time on 8-3-1985 the Scrutiny Committee was  authorised to hold inquiry if there was any reason to  believe that the certificate was manipulated or  fabricated or had been obtained by producing  insufficient evidence. Referring to these  circulars/resolutions the High Court took the view that  the caste certificate issued to Respondent 1 could be  considered as valid and up to 8-3-1985 the inquiry was  governed by circular dated 31-7-1981. The High Court  

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dealing with the stand of the State Government on the  issue of “Halba-Koshti”, from time to time, and also  referring to circulars/resolutions/instructions held in  favour of Respondent 1 on the ground that the  appellant was bound by its own circulars/orders. No  doubt, it is true, the stand of the appellant as to the  controversy relating to “Halba-Koshti” has been varying  from time to time but in the view we have taken on  Question 1, the circulars/ resolutions/instructions  issued by the State Government from time to time,  some times contrary to the instructions issued by the  Central Government, are of no consequence. They  could be simply ignored as the State Government had  neither the authority nor the competency to amend or  alter the Scheduled Tribes Order.

But we make it clear that he cannot claim to belong  to the Scheduled Tribe covered by the Scheduled Tribes  Order. In other words, he cannot take advantage of the  Scheduled Tribes Order any further or for any other  constitutional purpose. Having regard to the passage of  time, in the given circumstances, including interim  orders passed by this Court in SLP (C) No. 16372 of  1985 and other related matters, we make it clear that  the admissions and appointments that have become  final, shall remain unaffected by this judgment.”

11. A careful reading of the above would show that both  

the High Court as also this Court were conscious of the  

developments that had taken place on the subject whether  

‘Halba-Koshti’  are ‘Halbas' within the meaning of the  

Presidential Order. The position emerging from the said  

circulars, resolutions and orders issued by the competent  

authority from time to time notwithstanding, this Court on  

an abstract principle of law held that an inquiry into the  

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question whether ‘Halba-Koshti’  were Halbas within the  

meaning of the Presidential order was not legally  

permissible.   

12. The appellant before us relies upon the above passage  

extracted above to argue that her appointment had  

attained finality long before the judgment of this Court was  

delivered in Milind’s case and even when she was found to  

be a ‘Koshti’  and not a ‘Halba’  by the Verification  

Committee, she was entitled to protection against ouster.

13. We find merit in that contention.  If ‘Halba-Koshti’ has  

been treated as ‘Halba’  even before the appellant joined  

service as a Teacher and if the only reason for her ouster is  

the law declared by this Court in Milind’s case, there is no  

reason why the protection against ouster given by this  

Court to appointees whose applications had become final  

should not be extended to the appellant also. The  

Constitution Bench had in Milind’s case noticed the  

background in which the confusion had prevailed for many  

years and the fact that appointments and admissions were  

made for a long time treating ‘Koshti’ as a Scheduled Tribe  

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and directed that such admissions and appointments  

wherever the same had attained finality will not be affected  

by the decision taken by this Court.  After the  

pronouncement of judgment in Milind’s case, a batch of  

cases was directed to be listed for hearing before a Division  

Bench of this Court.  The Division Bench eventually decided  

those cases by an order dated 12th December 2000 (State  

of Maharashtra v. Om Raj (2007) 14 SCC 488) granting  

benefit of protection against ouster to some of the  

respondents on the authority of the view taken by this  

Court in Milind’s case.  One of these cases, namely, Civil  

Appeal No.7375 of 2002 arising out of SLP No.6524 of 1988  

related to the appointment of a ‘Koshti’  as an Assistant  

Engineer against a vacancy reserved for a ‘Halba/Scheduled  

Tribe candidate. This court extended the benefit of  

protection against ouster to the said candidate also by a  

short order passed in the following words:

  “4.  Leave granted.

5. The appellant having belonged to Koshti caste  claimed to be included in the Scheduled Tribe of Halba  and obtained an appointment as Assistant Engineer.  

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When his appointment was sought to be terminated on  the basis that he did not belong to Scheduled Tribe by  the Government a writ petition was filed before the  High Court challenging that order which was allowed.  That order is questioned in this appeal. The questions  arising in this case are covered by the decision in State  

of aharashtra v. Milind1and were got to be allowed,  however, the benefits derived till now shall be available  to the appellant to the effect that his appointment as  Assistant Engineer shall stand protected but no further.  The appeal is disposed of accordingly.”

14. Reference may also be made to Punjab National  

Bank v. Vilas (2008) 14 SCC 545.  That too was a case  

of appointment based on a certificate which was later  

cancelled on the ground that ‘Halba Koshti’  was not the  

same as ‘Halba’  Scheduled Tribe. The High Court had set  

aside the termination of the service of the affected  

candidates relying upon a Government resolution dated 15th  

June 1995 as applicable to Punjab National Bank. While  

upholding the said order, H.K. Sema, J. held the candidate  

to be protected against ouster on the basis of the  

resolution.  V.S. Sirpurkar, J., however, took a slightly  

different view and held that the appointment made by the  

Bank having become final the same was protected against  

ouster in terms of the decision of the Constitution Bench in  

Milind’s case (supra). The question whether the  

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Government resolution protected the candidates against  

ouster from service was for that reason left open by His  

Lordship.  Reliance in support of that view was placed upon  

the decision of this Court in Civil Appeal No. 7375 of  

2000 (wrongly mentioned in the report as Civil appeal No.  

3375 of 2000) mentioned above.  The Court observed:

 “The situation is no different in case of the present  respondent. He also came to be appointed and/or  promoted way back in the year 1989 on the basis of his  caste certificate which declared him to be Scheduled  Tribe. Ultimately, it was found that since a “Koshti”  does not get the status of a Scheduled Tribe, the Caste  Scrutiny Committee invalidated the said certificate  holding that the respondent was a Koshti and not a  Halba. I must hasten to add that there is no finding in  the order of the Caste Scrutiny Committee that the  petitioner lacked in bona fides in getting the certificate.  I say this to overcome the observations in para 21 in  Sanjay K. Nimje case. But it is not a case where the  respondent pleaded and proved bona fides. Under such  circumstances the High Court was fully justified in  relying on the observations made in Milind case. The  High Court has not referred to the judgment and order  in Civil Appeal No. 3375 of 2000 decided on 12-12- 2000 to which a reference has been made above.  However, it is clear that the High Court was right in  holding that the observations in Milind case apply to  the case of the present respondent and he stands  protected thereby”.

15. Our attention was drawn by counsel for the  

respondents to the decision of this Court in Addnl.  

General Manager/Human Resource BHEL v. Suresh  

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Ramkrishna Burde (2007) 5 SCC 336 in which the  

protection against ouster granted by the decision in  

Milind’s case was not extended to the respondent therein.  

A bare reading of the said decision, however, shows that  

there is a significant difference in the factual matrix in  

which the said case arose for consideration.  In Burde’s  

case, the Scrutiny Committee had found that the caste  

certificate was false and, therefore, invalid. That was not  

the position either in Milind’s case nor is that the position  

in the case at hand.  In Milind’s case, the Scrutiny  

Committee had never alleged any fraud or any fabrication  

or any misrepresentation that could possibly disentitle the  

candidate to get relief from the Court.  In the case at hand  

also there is no such accusation against the appellant that  

the certificate was false, fabricated or manipulated by  

concealment or otherwise. Refusal of a benefit flowing from  

the decision of this Court in Milind’s case may, therefore,  

have been justified in Burde’s case but may not be  

justified in the case at hand where the appellant has not  

been accused of any act or omission or commission of the  

act like the one mentioned above to disentitle her to the  

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relief prayed for.  The reliance upon Burde’s case (supra),  

therefore, if of no assistance to the respondent.  

The decision of this Court in State of Maharashtra v.  

Sanjay K. Nimje (2007) 14 SCC 481 relied upon by  

learned counsel for the respondents was distinguished even  

by V.S. Sirpurkar, J. in Vilas’s case. The distinction is  

primarily in terms whether the candidate seeking  

appointment or admission is found guilty of a conduct that  

would disentitle him/her from claiming any relief under the  

extraordinary powers of the Court.  This Court found that if  

a person secures appointment or admission on the basis of  

false certificate he cannot retain the said benefit obtained  

by him/her.  The Courts will refuse to exercise their  

discretionary jurisdiction depending upon the facts and  

circumstances of each case.   The following passage from  

decision in the Nimje’s case is apposite:

“In a situation of this nature, whether the Court will  refuse to exercise its discretionary jurisdiction under  Article 136 of the Constitution of India or not would  depend upon the facts and circumstances of each case.  This aspect of the matter has been considered recently  by this Court in Sandeep Subhash Parate v. State of  Maharashtra (2006) 7 SCC 501.”

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16. Applying the above to the case at hand we do not see  

any reason to hold that the appellant had fabricated or  

falsified the particulars of being a Scheduled Tribe only with  

a view to obtain an undeserved benefit in the matter of  

appointment as a Teacher. There is, therefore, no reason  

why the benefit of protection against ouster should not be  

extended to her subject to the usual condition that the  

appellant shall not be ousted from service and shall be re-

instated if already ousted, but she would not be entitled to  

any further benefit on the basis of the certificate which she  

has obtained and which was 10 years after its issue  

cancelled by the Scrutiny committee.   

17. In the result, we allow this appeal, set aside the order  

passed by the High Court and direct the reinstatement of  

the appellant in service subject to the condition mentioned  

above.  We further direct that for the period the appellant  

has not served the institution which happens to be an aided  

school shall not be entitled to claim any salary/back wages.  

She will, however, be entitled to continuity of service for all  

other intents and purposes.  The respondent shall do the  

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needful within a month from the date of this order.   The  

parties are left to bear their own costs.   

……………………………………….……….…..…J.         (T.S. Thakur)

     ……………………………..…………………..…..…J.              (Fakkir Mohamed Ibrahim Kalifulla)

New Delhi August 9, 2012

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