SHALINI Vs NEW ENGLISH HIGH SCL.ASSN..
Bench: T.S. THAKUR,VIKRAMAJIT SEN
Case number: C.A. No.-010997-010997 / 2013
Diary number: 39644 / 2009
Advocates: ANAGHA S. DESAI Vs
ASHA GOPALAN NAIR
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10997 OF 2013 [Arising out of S.L.P.(C)No.2680 of 2010]
Shalini …..Appellant
Versus
New English High Sch. Assn. & Ors. …..Respondents
J U D G M E N T
VIKRAMAJIT SEN, J.
1. Leave granted. This Appeal challenges the Order of the Division
Bench of the High Court of Judicature at Bombay, Nagpur Bench
passed on 25.11.2009 in L.P.A. No.527 of 2009 affirming the Order
of the learned Single Judge who had dismissed the Appellant’s Writ
Petition essentially on the opinion of the Three-Judge Bench in
Union of India v. Dattatray (2008) 4 SCC 612. The Order
impugned before the learned Single Judge was that of the School
Tribunal, Nagpur which had granted reinstatement of the Appellant
with continuity of service and full back wages. The Appellant had
been employed as an Assistant Teacher against a vacancy earmarked
for Scheduled Tribe candidate, she having filed a Caste Certificate
dated 8.7.1974 issued by the Competent Authority testifying her to
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belong to the “Halba Scheduled Tribe Category”. The question
before us is indeed a vexed one, as are all conundrums arising out of
claims for Scheduled Caste or Scheduled Tribe status and resultant
benefits. The confusion is made worst confounded because of
exclusions or inclusions of certain castes or classes of people
keeping only electoral advantages in mind. Retrospectivity is
inherent in subsequent enumerations under Articles 341 and 342
since those selection are immutable or unalterable; all change
therefore, is only clarificatory in content, because the endeavour of
Parliament is to make the enumerations more detailed by mentioning
sub-castes or the synonyms of the selected castes and tribes. The
inclusion of new castes/tribes was intended by the framers of the
Constitution to be impermissible, in order “to eliminate any kind of
political factors having a play in the matter of the disturbance in the
Schedule so published by the President” as per the Constituent
Assembly oration of Dr. Ambedkar, which stands accepted by the
Apex Court at least twice, as in State of Maharashtra v. Milind
(2001) 1 SCC 4 and E.V. Chinnaiah v. State of A.P. (2005) 1 SCC
394. We have to decide whether the Appellant’s employment was
justifiably terminated because a Caste Scrutiny Committee after a
passage of several decades, found her disentitled to claim the
benefits enuring to Halbas.
2. In R. Vishwanatha Pillai v. State of Kerala (2004) 2 SCC 105, this
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Court found that the caste certificate procured by the Appellant was
false ab initio. It repelled the argument that a fresh notice should
have been issued in compliance with Article 311 of the Constitution
of India as a prelude to the imposition of any punishment postulated
by that provision, on the premise that the appointment itself was
illegal and void, thereby disentitling the Appellant from
Constitutional protection. This Court also rejected the plea that
since the Appellant had put in 27 years of service the order of
dismissal should be converted to compulsory retirement or removal
from service so that pensionary benefits could be availed of. The
question which immediately begs to be cogitated upon is whether
these harsh consequences should nevertheless ensue and obtain even
if no fraud, mendacity or manipulation is ascribable to the person
who has claimed and enjoyed Scheduled Caste advantages.
3. This slant in the situation arose in State of Maharashtra v. Om Raj
(2007) 14 SCC 488 whereby several appeals came to be decided
simply on the basis of Milind, the gist of which was that protection
so far as the benefit then claimed on the strength of being Koshtis
would be preserved, but the incumbent would not be entitled to any
further benefit in the future. To remove confusion, State of
Maharashtra v. Viswanath [C.A.No.7375 of 2000] has also been
decided in Om Raj with other appeals. In Punjab National Bank v.
Vilas (2008) 14 SCC 545, the employee had provided a Halba
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Scheduled Tribe Certificate and gained employment in 1989 which
was invalidated by the Scheduled Tribe Scrutiny Committee leading
to the termination of the Respondent’s service by an order dated
4.2.2002. Drawing from the previous decision in Milind this Court
reiterated that Scheduled Tribe status had not been conferred either
on Halba Koshti or Koshti but on ‘Halba’ alone. This Court, thus,
once again protected the employment of the Respondent but
clarified that he would not be entitled to claim further promotion in
the Scheduled Tribe category. It was also declared that the
Government Resolution dated 30.6.2004 would apply to all
employment with the “government/semi-government and Boards,
Municipalities, Municipal Corporations, District Councils,
Cooperative Banks, government undertakings, etc.”
4. Almost one year later this very question, which has led to a deluge
of litigation already, received the attention of a Three-Judge Bench
in Dattatray. The Respondent, claiming to belong to the Scheduled
Tribe ‘Halba’, was appointed as Assistant Professor of Psychiatry in
G.B. Pant Hospital, New Delhi against a post reserved for
Scheduled Tribes. A verification of the Certificate of Scheduled
Tribe disclosed that he did not belong to the Halba Tribe. The
second challenge to this finding, before the High Court, also proved
to be futile. However, on what has been held to be a misinformed
reading of the Constitution Bench decision in Milind, the High
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Court thought it fit to protect his service. The Three-Judge Bench
referred to two other decisions of this Court namely Bank of India v.
Avinash D. Mandivikar (2005) 7 SCC 690 and BHEL v. Suresh
Ramkrishna Burde (2007) 5 SCC 336 and noting that the employee
had falsely claimed that he belonged to the Scheduled Tribe/Halba,
set aside the judgment of the High Court. Whilst it permitted
settlement of employee-Doctor’s terminal benefits it placed an
embargo on his receiving any pensionary benefits. This conclusion
was arrived at by the Three-Judge Bench without noting State of
Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481 where the
impugned Order passed by the Division Bench of the High Court of
Judicature at Bombay directing the reinstatement of a person
belonging to the ‘Koshti’ Tribe, (not even ‘Koshti-Halbas’) was set
aside.
5. It is evident that there is a plethora of precedents on this aspect of
the law, and perhaps for this reason Counsel for the parties were
remiss in drawing our attention in the present proceedings to the
detailed judgment in Kavita Solunke v. State of Maharashtra (2012)
8 SCC 430, in which one of us, Thakur J, had analysed as many as
eleven precedents including those discussed above. After reviewing
all the judgments it was held, in the facts and circumstances of that
case, that since that party had not intentionally or with dishonest
intent fabricated particulars of a scheduled tribe with a view to
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obtain an undeserved benefit in the matter of appointment, she was
entitled to protection against ouster from service, but no other
benefit. In view of the comprehensive yet concise consideration of
case law in Solunke, any further analysis would make the present
determination avoidably prolix, and therefore our endeavour will be
to cull out the principles which would be relevant for deciding
suchlike conundrums. These are - (a) If any person has fraudulently
claimed to belong to a Scheduled Caste or Scheduled Tribe and has
thereby obtained employment, he would be disentitled from
continuing in employment. The rigour of this conclusion has been
diluted only in instances where the Court is confronted with the case
of students who have already completed their studies or are on the
verge of doing so, towards whom sympathy is understandably
extended; (b) Where there is some confusion concerning the
eligibility to the benefits flowing from Scheduled Caste or
Scheduled Tribe status, such as issuance of relevant certificates to
persons claiming to be ‘Koshtis’ or ‘Halba Koshtis’ under the
broadband of ‘Halbas’, protection of employment will be available
with the rider that these persons will thereafter be adjusted in the
general category thereby rendering them ineligible to further benefits
in the category of Scheduled Caste or Scheduled Tribe as the case
may be; (c) this benefit accrues from the decision of this Court inter
alia in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008)
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9 SCC 54 which was rendered under Article 142 of the Constitution
of India. Realising the likely confusion in the minds of even honest
persons the Resolutions/Legislation passed by the State
Governments should spare some succour to this section of persons.
This can be best illustrated by the fact that it was in Milind that the
Constitution Bench clarified that ‘Koshtis’ or ‘Halba-Koshtis’ were
not entitled to claim benefits as Scheduled Tribes and it was the
‘Halbas’ alone who were so entitled. A perusal of the judgment in
Vilas by Sirpurkar J, as well as Solunke makes it clear that this
protection is available by virtue of the decisions of this Court; it is
not exclusively or necessarily predicated on any Resolution or
Legislation of the State Legislature; (d) Where a Resolution or
Legislation exists, its raison d’etre is that protection is justified in
presenti (embargo on removal from service or from reversion) but
not in futuro (embargo on promotions in the category of Scheduled
Caste or Scheduled Tribe).
6. A reading of the impugned Judgment requires us to clarify an
important aspect of the doctrine of precedence. Dattatray is the
only Three-Judge Bench decision, and therefore indisputably holds
pre-eminence. However, by that time several decisions had already
been rendered by Two-Judge Benches some of which have already
been discussed above. It was within the competence of Dattatray
Bench to overrule the other Two-Judge Benches. Despite the fact
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that it has not done so the per incuriam principle would not apply to
the decision because it was a larger Bench. However, no
presumption can be drawn that the Dattatray Three-Judge Bench
decision was of the opinion that the earlier Two-Judge Bench
decisions had articulated an incorrect interpretation of the law. That
being so, the Two-Judge Bench views may still be relied upon so
long as the ratio of Dattatray is not directly in conflict with their
ratios. It is therefore imperative to distill the ratio of Dattatray,
which we have already discussed in some detail. We need only
reiterate therefore that the Three-Judge Bench was perceptibly
incensed with the falsity of the claim of the employee to Scheduled
Caste/Scheduled Tribe status. That was not a case where a
legitimate claim of consanguinity to a ‘Halba Koshti’, ‘Koshti’ or
‘Gadwal Koshti’ etc. had been made, which was at the inception
point considered to be eligible to beneficial treatment admissible to
Scheduled Tribes, later to be reversed by the Constitution Bench
decision in Milind and declared to be the entitlement of Halbas only.
It is not the intent of law to punish an innocent person and subject
him to extremely harsh treatment. That is why this Court has
devised and consistently followed that taxation statutes, which
almost always work to the pecuniary detriment of the assessee, must
be interpreted in favour of the assessee. Therefore, as we see it, on
one bank of the Rubicon are the cases of dishonest and mendacious
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persons who have deliberately claimed consanguinity with
Scheduled Castes or Scheduled Tribes etc. whereas on the other
bank are those marooned persons who honestly and correctly
claimed to belong to a particular Scheduled Caste/Scheduled Tribe
but were later on found by the relevant Authority not to fall within
the particular group envisaged for protected treatment. In the
former group, persons would justifiably deserve the immediate
cessation of all benefits, including termination of services. In the
latter, after the removal of the nebulousness and uncertainty, while
the services or benefits already enjoyed would not be negated, they
would be disentitled to claim any further or continuing benefit on the
predication of belonging to the said Scheduled Caste/Scheduled
Tribe.
7. We must now reflect upon the Government Resolution dated
15.6.1995 passed by the Government of Maharashtra. Virtually it
grants status quo as regards employment inasmuch as it states that
those persons who, on the basis of Caste Certificates, already stand
appointed or promoted in the Government or Semi-Government,
shall not be demoted or removed from service. Thereafter, the
Maharashtra Scheduled Castes, Scheduled Tribes, De-notified
Tribes, (Vimukta Jatis) Nomadic Tribes, Other Backward Classes
and Special Backward Category (Regulation of Issuance and
Verification of) Caste Certificate Act, 2000 (for short, ‘2000 Act’)
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was passed by the Legislature and received the assent of the
President. Section 10 thereof reads thus :
“10. Benefits secured on the basis of false Caste Certificate
to be withdrawn.
(1) Whoever not being a person belonging to any of the
Scheduled Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward Classes of
Special Backward Category secures admission in any education
institution against a seat reserved for such Castes, Tribes or
Classes, or secures any appointment in the Government, local
authority or in any other company or corporation, owned or
controlled by the Government or in any Government aided
institution or co-operative society against a post reserved for
such Castes, Tribes or Classes by producing a false Caste
Certificate shall, on cancellation of the Caste Certificate by the
Scrutiny Committee, be liable to be debarred from the concerned
educational institution, or as the case may be, discharged from
the said employment forthwith and any other benefits enjoyed or
derived by virtue of such admission or appointment by such
person as aforesaid shall be withdrawn forthwith.
(2) Any amount paid to such person by the Government or
any other agency by way of scholarship, grant, allowance or
other financial benefit shall be recovered from such person as an
arrears of land revenue.
(3) Notwithstanding anything contained in any Act for the
time being in force, any Degree, Dilploma or any other
educational qualification acquired by such person after securing
admission in any educational institution on the basis of a Caste
Certificate which is subsequently proved to be false shall also
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stand cancelled, on cancellation of such Caste Certificate by the
Scrutiny Committee.
(4) Notwithstanding anything contained in any law for the
time being in force, a person shall be disqualified for being a
member of any statutory body if he has contested the election for
local authority, co-operative society or any statutory body on the
seat reserved for any of Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other
Backward Classes or Special Backaward Category by procuring
a false Caste Certificate as belonging to such Caste, Tribe or
Class on such false Caste Certificate being cancelled by the
Scrutiny Committee, and any benefits obtained by such person
shall be recoverable as arrears of land revenue and the election
of such person shall be deemed to have been terminated
retrospectively.”
In essence, the Section cancels with pre-emptive effect any benefit that
may have been derived by a person based on a false caste certificate.
Whilst “Caste Certificate” has been defined in Section 2(a) of the 2000
Act, “False Caste Certificate” has not been dealt with in the Definitions
clause. There is always an element of deceitfulness, in order to derive
unfair or undeserved benefit whenever a false statement or representation
or stand is adopted by the person concerned. An innocent statement which
later transpires to be incorrect may be seen as false in general sense would
normally not attract punitive or detrimental consequences on the person
making it, as it is one made by error. An untruth coupled with a dishonest
intent however requires legal retribution. It appears to us that Section 10
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applies in the Dattatray mould only. It was obviously for this reason that
in Vilas, Sema J, was of the opinion that the 2000 Act did not apply to the
facts before it whereas Sirpurkar J, after concurring with Sema J, granted
protection albeit under Article 142 of the Constitution of India. In Nimje
another Two-Judge Bench held that Government Resolution dated
15.6.1995 would continue to apply even after the passing of the 2000 Act
so long as the appointment had taken place prior to 1995. There is,
therefore, palpable wisdom in the Office Memorandum dated 10.8.2010 of
the Government of India, Ministry of Personnel, Public Grievances and
Pensions, Department of Personnel & Training to the effect that “it has
been decided that the persons belonging to the ‘Halba Koshti/Koshti’ caste
who got appointment against vacancies reserved for the Scheduled Tribes
on the basis of Scheduled Tribe certificates, issued to them by the
competent authority, under the Constitution (Scheduled Tribes) Order,
1950 (as amended from time to time) relating to the State of Maharashtra
and whose appointments had become final on or before 28.11.2000, shall
not be affected. However, they shall not get any benefit of reservation
after 28.11.2000.”
8. The Appellant before us has been in service since 6.11.1981 on the
strength of her claim of consanguinity to ‘Halba Scheduled Tribe’ duly
predicated on a Certificate dated 8.7.1974 issued by the Competent
Authority. Avowedly she was appointed in a vacancy earmarked
against the Scheduled Tribe category. She was confirmed as Assistant
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Teacher with effect from 1.1.1984. Respondent nos.1 and 2, by order
dated 17.9.1989 appointed the Appellant as Assistant Head Mistress.
Thereafter on 28.4.1994 she was promoted as Head Mistress by an
order of even date, subject to production of Caste Validity Certificate.
It is not clear when the certificate produced by the Appellant was
referred to the Caste Scrutiny Committee, Nagpur for verification, but
the said Committee by Order dated 20.8.2003 held it to be invalid. The
learned Single Judge of the High Court of Judicature at Bombay,
Nagpur Bench granted protection in service on the basis of
Government Resolution dated 15.6.1995 by his order dated 2.9.2003 in
Writ Petition No.3500 of 2003. Protracted litigation thereafter ensued
eventually resulting in the filing of another Writ Petition No.4532 of
2004 in which a learned Single Judge by order dated 11.11.2009 set
aside the reinstatement order passed by the School Tribunal, Nagpur
which came to be affirmed by the Division Bench in the impugned
Order which was of the opinion that Dattatray prohibited the extension
of any protection to the Appellant. Having come to that conclusion, the
Division Bench did not think it necessary to consider the plethora of
precedents, albeit of Two-Judge Benches where protection had in fact
been granted. Be that as it may, we think that since there was no falsity
in the claim of the Appellant and therefore that she cannot be viewed as
having filed a ‘false’ Caste Certificate, the rigours of Section 10 of the
2000 Act would not apply to her case. A perusal of the Order of the
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Scheduled Tribe Caste Certificate Committee, Nagpur shows that the
Committee was satisfied that her claim to the caste of ‘Gadwal Koshti’
was correct but that she did not belong to ‘Halba’ Scheduled Tribe.
Government Resolution dated 15.6.1995 specifically declares that the
following were basically backward in social, economic and educational
viewpoint and were therefore “special backward class” vide
Government Resolution dated 7.12.1994 :
“Sr. No. Name of the Caste
1. …. …. …. ….
2. …. …. …. ….
3. (1) Koshti (2) Halba Koshti (3) Halba Caste (4) Sali
(5) Ladkoshti (6) Gadwal Koshti (7) Deshkar (8)
Salewar (9) Padmashali (10) Dwang (11) Kachi
Dhande (Glass occupation) (12) Patwos (13) Satpal
(14) Sade (15) Dhankoshti.”
[Emphasis supplied]
9. It requires specialised bodies such as Caste Scrutiny Committees,
specialised lawyers, seasoned bureaucrats etc. to decipher which
category a relatively backward, or ostracized or tribal person falls in.
Can it therefore seriously be contended that a person who has honestly,
in contradistinction with falsely, claimed consanguinity with a certain
group which was later on found not to belong to an envisaged
Scheduled Tribe but to a special backward class be visited with
termination of her employment? We think that that is not the intent of
the law, and certainly was not what the Three-Judge Bench was
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confronted with in Dattatray. In our opinion, therefore, the Appellant
should have been debarred from any further advantage that would
enure to persons belonging to the ‘Halba’ Tribe.
10.Accordingly, we direct reinstatement of the Appellant in service but
without any back wages. With the passage of time it is possible that
there may be another incumbent as Head Mistress of the Respondent
No.1-School and we think that it would not be equitable to remove
such person. However, if this post falls vacant before the Appellant
reaches the age of retirement or superannuation she shall be re-
appointed to that post but with no further promotion as a Scheduled
Tribe candidate unless she is otherwise entitled as a special backward
class candidate. The Appeal stands disposed of accordingly. The
parties shall bear their respective costs.
............................................J. [T.S. THAKUR]
............................................J. [VIKRAMAJIT SEN]
New Delhi December 12, 2013.
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