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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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