Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9182 OF 2012

B.H.KHAWAS       ………… APPELLANT VERSUS

UNION OF INDIA & OTHERS         ………RESPONDENTS

J U D G M E N T

A.M. KHANWILKAR, J.

This appeal challenges the judgment of the Division Bench of the

High Court of Judicature at Bombay in Writ Petition No. 7101 of 2005

dated 8th February 2012.  The High Court reversed the decision of the

Central Administrative Tribunal, Bombay Bench at Mumbai in OA No.

419 of 2004, dated 3rd March, 2005.  The Tribunal had allowed the

original  application  filed  by  the  appellant  whilst  setting  aside  the

termination order dated 8th June, 2004 and instead had directed the

respondents to re-instate the appellant in service.

Page 2

2

2. Briefly  stated,  the  appellant  was  appointed  as  “Chemical

Examiner Grade–I” in the Customs and Central Excise Department in

the  pay  scale  of  Rs.  3000-100-3500-125-4500,  vide  appointment

letter dated 16th June, 1995, subject to fulfilling terms and conditions

mentioned  herein.  As  the  appellant  was  appointed  against  the

vacancy  reserved  for  Scheduled  Tribe,  Condition  (vii)  of  the  said

Appointment Letter is of some relevance.  It reads thus:-

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

                                              (emphasis supplied)

3. Before joining the post of Chemical Examiner in the Customs and

Central Excise Department on 21st November, 1995, the appellant had

worked in other Departments of  the Government of India; on being

selected through the Union Public Service Commission, to the post of

“Senior  Technical  Assistant”  in  the  Indian  Bureau  of  Mines  from

14.02.1985  to  12.05.1986;  as  an  “Assistant  Chemist  (Group  B

Gazetted)”  in the Geological  Survey of  India between 15.05.1986 to

31.05.1989; as “Chemist (Groups A Gazetted)” in the Indian Bureau of

Page 3

3

Mines between 05.06.1989 up to 12.04.1994; and as “Deputy Director

(Ind. Hygiene)” in the Directorate General Factory Advice Services and

Labour Institutes from 13.04.1994 to 10.11.1995. The appellant was

declared  confirmed  in  the  grade  of  “Assistant  Chemist”  w.e.f.

15.05.1988  vide  notification  dated  05.05.1995.   All  these

appointments  were  made  against  the  Scheduled  Tribe  reserved

category.   However,  lastly,  the  appellant  joined  the  Customs  and

Central Excise Department as “Chemical Examiner Grade I”, from 21st

November,  1995  pursuant  to  appointment  order  dated  16th June,

1995.  He was working on that post till his services were terminated

vide order dated 8th June,  2004, consequent to the decision of  the

Caste Certificate Scrutiny Committee – that the appellant belonged to

caste  “Koshti”,  which  is  not  a  Scheduled  Tribe  in  the  State  of

Maharashtra.

4. When  the  appellant  was  appointed  in  the  Indian  Bureau  of

Mines, as Chemist in Group A, the said Department vide letter dated

13th January, 1989 had referred his case for Caste Certificate scrutiny

to the Caste Certificate Scrutiny Committee, Nagpur.  The Scrutiny

Committee after due enquiry answered the reference vide order dated

16th January,  2001.   It  found  that  the  appellant  belongs  to  Caste

“Koshti”,  which  is  not  a  Scheduled  Tribe.   That  decision  of  the

Page 4

4

Scrutiny Committee was challenged by the appellant by way of a Writ

Petition  No.  376  of  2001,  before  the  High  Court  of  Judicature  at

Bombay, Nagpur Bench at Nagpur, as having been passed in violation

of procedural compliances. That contention commended to the High

Court, as a result of which the decision of the Scrutiny Committee was

quashed and set aside and the matter was remanded to the Scrutiny

Committee for redetermination of the claim afresh. After fresh enquiry

in terms of the High Court decision, vide order dated 10th February,

2003, the Scrutiny Committee finally opined as follows:-  

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

5. On receipt  of  the  said  order  of  the  Caste  Certificate  Scrutiny

Committee,  the  appellant  made  representations  to  the  Chairman,

Central Board of Excise and Customs on 20.01.2004 and 21.01.2004.

The  substance  of  the  representations  was  founded  on  the  caste

Page 5

5

certificate issued by the Executive Magistrate, dated 14th September,

1986, which, the appellant asserted was obtained bona- fide and in

good  faith  on  the  basis  of  the  school  record  indicating  that  the

appellant  belongs  to  Caste  “Halba”,  a  notified  Scheduled  Tribe  in

Maharashtra.  The appellant further asserted that he did not furnish

false information of his caste; and more so the question whether or not

“Koshti” caste belongs to “Halba” Scheduled Tribe was subject matter

of immense debate and was conclusively answered by the Constitution

Bench of the Supreme Court in the case of State of Maharashtra vs.

Milind and Others1,  decided on November 28, 2000. The appellant

thus contended that his appointment already made on the basis of the

caste certificate issued prior to that decision was protected even in

terms of the dictum of the Constitution Bench in Milind’s case.  This

stand  of  the  appellant,  however,  did  not  find  favour  with  the

Department.   The  Government  of  India,  Ministry  of  Finance,

Department of Revenue, New Delhi instead issued an Office Order No.

F.No.A-12026/7/91-Ad.II-B,  dated  8th June,  2004,  cancelling  the

appointment of the appellant on the ground that the appellant does

not belong to Scheduled Tribe. This decision was the subject matter of

challenge  before  the  Central  Administrative  Tribunal  by  way  of

Original Application No. 491 of 2004.  The Tribunal acceded to the

1 (2001) 1 SCC 4

Page 6

6

contention of the appellant that the appointment made prior to the

decision in Milind’s case will have to be protected.  The objection of the

respondents that the observation of the Constitution Bench in Milind’s

case was not applicable to “appointments” was rejected.  The Tribunal

noted that, in a large number of cases, the Bombay High Court has

protected  the  appointments  of  persons  belonging  to  caste  “Koshti”

following  the  dictum  of  the  Constitution  Bench  in  Milind’s  case.

Accordingly, the Tribunal allowed the original application and directed

re-instatement of the appellant in service by setting aside the order of

termination.  The operative order of the Tribunal reads thus:  

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

Against this decision, the Department filed a writ petition before the

Page 7

7

High Court, being Writ Petition No. 7101 of 2005. The Division Bench

of the Bombay High Court, relying on the decision of three Judges’

Bench of this Court in the case of Union of India v/s. Dattatray s/o

Namdeo Mendhekar and Ors2, allowed the writ petition and restored

the  termination  order  dated  8th June,  2004.  The  appellant  has,

therefore, approached this Court by way of present appeal.

6. The principal argument of the appellant is that the decision of

the  Constitution  Bench  in  Milind’s  case  itself  protects  all

appointments  which have  become final.   The  decision of  the  three

Judges’ Bench relied by the High Court in the impugned judgment has

been considered  and  explained  in  the  subsequent  decisions  in  the

case of Kavita Solunke v/s State of Maharashtra and Ors.3,  Shalini

v/s New English High School Association and Others4 and in  R.

Unnikrishnan and Another v/s V.K. Kahanudevan and Others  5.

According to the appellant, following the consistent view of this Court,

the  appointment,  even  in  the  case  of  the  appellant,  should  be

protected.  For, the claim of the appellant was not a false claim, but a

bona fide claim founded on the entries in the school record and the

certificate issued by the Executive Magistrate. It is not a case of false

2  (2008) 4 SCC 612  3  (2012) 8 SCC 430  4  (2013) 16 SCC 526 5  (2014) 4 SCC 434

Page 8

8

or  dishonest  claim  set  up  by  the  appellant;  or  for  that  matter

fabrication of records or reliance placed on fraudulent caste certificate.

7. Per contra, the respondents contend that the principle stated in

the  subsequent  decisions  of  this  Court  will  be  of  no  avail  to  the

appellant.  In that, the appellant was appointed on a provisional basis

and subject  to  verification of  his  caste  certificate  through a proper

channel.   The  Caste  Certificate  Scrutiny  Committee  having  finally

considered the factual position and opined that the appellant does not

belong to caste “ Halba”,  a notified Scheduled Tribe but belongs to

caste “Koshti”, was not entitled to continue on the post reserved for

Scheduled Tribes.

8. Before we proceed further, it would be apposite to reproduce the

relevant  portion  from  the  decision  of  the  Constitution  Bench,  in

Milind’s  case  which  is  the  fulcrum  for  claiming  protection  by  the

appellant. In paragraph 38, in that decision, the Court observed thus:-

“38. Respondent 1 joined the medical course for the year 1985-86.  Almost 15 years have passed by now.  We are told he has already completed  the  course  and  maybe  he  is practicing as a doctor.  In this view and at this length of time it is for nobody’s benefit to annual his admission.  Huge amount is spent on each candidate for completion of medical course.   No  doubt,  one  Scheduled  Tribe candidate  was  deprived  of  joining  medical course by the admission given to Respondent 1.  If any action is taken against Respondent

Page 9

9

1, it  may lead to depriving the service of a doctor to the society on whom public money has  already  been  spent.   In  these circumstances, this judgment shall not affect the  degree  obtained  by  him  and  his practicing as a doctor.  But we make it clear that  he  cannot  claim  to  belong  to  the Scheduled  Tribe  covered  by  the  Scheduled Tribes Order.  In other words, he cannot take advantage  of  the  Scheduled  Tribes  Order any  further  or  for  any  other  constitutional purpose.   Having regard to  the passage of time,  in  the  given  circumstances,  including interim orders passed by this Court in SLP (C)  No.  16372  of  1985  and  other  related matters,  we  make  it  clear  that  the admissions  and  appointments  that  have become final, shall remain unaffected by this judgment.”    

(emphasis supplied)

The last sentence in this paragraph is crucial.  The Court made it clear

that the admissions and appointments that have “become final” shall

remain unaffected, by its judgment.  

9. The moot question in the present case is: whether the subject

appointment of the appellant to the post of “Chemical Examiner” in

Customs and Central  Excise Department has in fact become final?

Unlike  the  appointment  of  the  appellant  to  the  post  of  Assistant

Chemist, in the Geological Survey of India, was confirmed in terms of

Notification  No.  1225  B/  A-31013/Asstt.  Chemist/95-19C,  dated

5.5.1995 with effect from 15th May, 1988, his appointment to the post

Page 10

10

of  “Chemical  Examiner”  in  the  Customs  and  Central  Excise

Department with which we are concerned was provisional and subject

to verification of his caste claim of “Halba”. It was not treated as final

by the Department till  the impugned termination order was issued.

Nothing has been brought to our notice by the appellant to show that

his appointment on that post was in fact treated as confirmed by the

concerned  Department,  before  issuing  the  impugned  order  of

termination.  Had  it  been  a  case  of  termination  from  the  post  of

“Assistant  Chemist”,  on  which the  appellant  was  confirmed by  the

concerned  Department,  the  argument  canvassed  by  the  appellant

would  have  assumed  some  significance  and  could  be  tested  with

reference to the recent decisions of this Court pressed into service by

the appellant.

10. Admittedly, the appellant was appointed to the post of Chemical

Examiner in the Customs and Central Excise Department, where he

joined on 24th November, 1995, pursuant to the appointment letter

bearing  No.  F.No.A-12026/7/91-AD.II-B,  dated  16th June,  1995.

Condition  No.  (vii)  therein  unambiguously  mentions  that  as  the

appointment  of  the  appellant  was  against  the  post  reserved  for

Scheduled Tribes, it was provisional and subject to verification of his

caste certificate through a proper channel.  The caste certificate of the

Page 11

11

appellant was already under scrutiny in terms of reference made by

the Controller General, of the Indian Bureau of Mines, Nagpur, where

the appellant was appointed in similar manner on the post reserved

for Scheduled Tribes.  The mere fact that the Scrutiny Committee was

not able to complete the enquiry on the question of validity of caste

certificate,  before  the  appellant  resigned  from  the  services  of  the

Indian  Bureau  of  Mines  and  joined  another  Department  of

Government of India, that would not extricate the appellant from the

requirement  of  verification of  his  caste  claim of  “Halba”,  a  notified

Scheduled  Tribe  in  Maharashtra.   For,  the  appointment  of  the

appellant  as  Chemical  Examiner  Grade-I  in  Customs  and  Central

Excise Department in terms of Appointment Letter Dated 16th June,

1995 (Annexure P10), was to a temporary post, on provisional basis

and subject  to  verification of  his  caste  certificate  through a proper

channel.   In such a case, the principle expounded in the decisions

relied by the appellant will have no application.  

11. In the case of Kavita Solunke (supra), it was not in dispute that

the appellant had satisfactorily completed the period of probation and

was  confirmed  in  service  as  an  Assistant  Teacher  in  due  course.

Enquiry  in  respect  of  her  caste  claim  was  insisted  upon  “after  a

decade” from her initial appointment, obviously after the decision in

Page 12

12

Milind’s case. The Court held that the appointment of the appellant

having  attained  finality  could  not  be  disturbed.  Indeed,  the  Court

noted that there was nothing to indicate that the caste certificate of

the appellant was false, fabricated or manipulated by concealment or

otherwise. That observation is in the context of the matter in issue

before the Court, for passing an order in equity. Even in the next case,

in Shalini (supra) which follows the dictum in Kavita’s case, it is seen

that the appointment of  the appellant as an Assistant Teacher had

attained finality as she was in service since 6th November, 1981 and

confirmed w.e.f. 1st January, 1984, for which the Court held that the

same should not be disturbed. Similarly, in the case of Unnikrishnan

and Another  (supra), the Court was dealing with the matter where

the caste claim was already made subject matter of challenge before

the Court and was upheld. It was a case where a judicial order passed

inter partes had become final on that issue. In that case, the caste

claim enquiry  was  insisted  because  of  the  subsequent  Presidential

Order  excluding  the  concerned caste  from the entry  notified  under

notification dated 31st August 2007.  The Court, inter alia, opined that

it was not open to reconsider the settled judicial pronouncement on

the caste claim inter partes.    

12. In none of the cases pressed into service by the appellant, the

Page 13

13

appointment, as in this case, was on provisional basis and subject to

verification of caste certificate through proper channel.  It necessarily

follows that the principle expounded in the three decisions referred to

above, can have no application to the case on hand.  Indubitably, if

the argument of the appellant was accepted, it would inevitably mean

that all appointments made before 28.11.2000 must be protected even

though it had not become final. That would also mean that all caste

certificates  issued  to  persons  belonging  to  “Koshti”  community,  as

being “Halba” Scheduled Tribe in Maharashtra, prior to November 28,

2000 (the day on which Milind’s case was decided by the Constitution

Bench), have been validated irrespective of the opinion of the Scrutiny

Committee qua those certificates. That cannot be countenanced. For,

caste “Koshti” is neither a synonym nor part of a notified Scheduled

Tribe “Halba” in Maharashtra.

13. Considering the above, the appellant is not entitled for any relief

on the  finding  that  his  appointment  as  Chemical  Examiner  in  the

Customs  and  Central  Excise  Department  vide  appointment  letter

dated 16th June, 1995 had not attained finality.  Notably,  the Caste

Certificate  Scrutiny  Committee  has  finally  answered  the  factum of

caste claim of the appellant on the basis of relevant material, which is

indicative of the fact that in the relevant official record pertaining to

Page 14

14

even the close relatives of the appellant (grandfather and uncle), the

caste  recorded  is  “Koshti”  and  occupation  shown  as  weaving

separately.  The  appellant  has  allowed  that  decision  of  the  Caste

Certificate Scrutiny Committee dated 10th February, 2003/22nd April,

2004 to attain finality. The Scrutiny Committee has unambiguously

held  that  the  appellant  does  not  belong  to  “Halba”  Community,  a

notified  Scheduled  Tribe  in  Maharashtra.  The  High  Court  was,

therefore, right in allowing the writ petition filed by the Department

and to restore the termination order dated 8th June, 2004.   

14. Accordingly,  we  find  no  merit  in  this  appeal;  the  same  is

dismissed with no order as to costs.   

………..…………………….J. (ADARSH KUMAR GOEL)

…..………………………..J. (A.M. KHANWILKAR)

New Delhi; August 12, 2016.

Page 15

15

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

Civil Appeal  No(s).9182/2012 B.H. KHAWAS                                        Appellant(s)                                 VERSUS UNION OF INDIA & ORS.                              Respondent(s) (with office report) Date : 12/08/2016 This appeal was called on for pronouncement of                   Judgment today.

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

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

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

    (ASHOK RAJ SINGH)        (VEENA KHERA)       Court Master         Court Master

(Signed reportable judgment is placed in the file)