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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 742  of 2020 (Arising out of SLP(C) No 21619 of 2017)

The Chief Regional Officer The Oriental Insurance Co Ltd                  .... Appellant(s)

      Versus

Pradip and Anr                  ....Respondent(s)

J U D G M E N T  

Dr Dhananjaya Y Chandrachud, J

1 Delay condoned.

2 Leave granted.

3 The first respondent was appointed as an Assistant by the appellant on the basis

of a claim that he belonged to a Scheduled Tribe, namely, the Dhangad community.  As

the record shows, he belongs to the Dhangar community (a nomadic tribe) and not to

the  Dhangad  community  (listed  as  a  Scheduled  Tribe  for  Maharashtra).   The  first

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respondent claimed the benefit of belonging to a Schedule Tribe on the basis of a caste

certificate  dated 17 August  1984 issued by the Executive Magistrate,  Hingna.   The

appellant called upon the first  respondent to submit  the caste certificate by a letter

dated 15 February 2011.  The appellant then addressed a communication on 14 July

2011 to the issuing authority which, by a communication dated 9 May 2014, informed

the appellant that the caste certificate was not registered in its records.  In August 2014,

the  first  respondent  was  called  upon to  submit  a  fresh  caste  certificate.   The  first

respondent did not submit a fresh caste certificate, but approached the issuing authority

and then submitted a letter dated 14 August 2014 to the appellant whereby the issuing

authority had stated that the caste certificate had been issued from the office of the

Executive Magistrate.  On 3 August 2015, the first respondent applied for verification of

his  caste  certificate  to  the  Scrutiny  Committee.  The  first  respondent  submitted  an

application before the Scrutiny Committee on 15 February 2016.  By an order dated 25

April  2016,  the Scrutiny  Committee invalidated the claim.   The  Scrutiny  Committee

noted, in the course of its order, that the first respondent had submitted an application

on 15 February 2016 merely seeking protection of his service.  The Scrutiny Committee

observed that the first respondent was well aware of the fact that he did not belong to

the Dhangad Scheduled Tribe, but belonged to the Dhangar Community,  which is a

nomadic  tribe.   It  noted that  the documents  which had been submitted by the first

respondent  pertained  only  to  the  Dhangar  Community  and  not  to  the  Dhangad

Scheduled Tribe.  The documents pertaining to the first respondent and his father were

scrutinized by the Committee which came to the conclusion that there was no merit in

the claim of the first respondent of belonging to the Dhangad Scheduled Tribe.  

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4 Aggrieved by the order of the Scrutiny Committee, the first respondent instituted

a writ petition1 before the High Court of Judicature at Bombay Bench at Nagpur.  The

relief which was sought in the writ petition was for the protection of his services in view

of a Full Bench decision of the High Court in Arun Sonone v State of Maharashtra2

(Arun  Sonone).   The  first  respondent  also  challenged  the  order  of  the  Scrutiny

Committee.

5 The High Court, by its judgment and order dated 11 July 2016, issued a direction

to the effect that the services of the first respondent were liable to be protected, in view

of the judgment of its Full Bench in Arun Sonone.

6 Assailing the judgment of the High Court, it has been submitted on behalf of the

appellant by Mr Dinesh Mathur, learned counsel, that the judgment of the Full Bench of

the Bombay High Court in Arun Sonone has been overruled in a decision of a three-

Judge Bench of this Court in Chairman and Managing Director, Food Corporation of

India v Jagdish Balaram Bahira3 (FCI).

7 In its judgment in FCI, this Court has held:

“48…Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the  group  for  which  the  reservation  is  intended,  the invalidation of the claim to belong to that group would, as a necessary  consequence,  render  the  appointment  void  ab initio.  The rationale  for  this  is  that  a  candidate  who would otherwise have to compete for a post in the general pool of unreserved  seats  had  secured  appointment  in  a  more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class. Once it was found that the candidate had obtained admission upon  a  false  representation  to  belong  to  the  reserved category,  the  appointment  would  be  vitiated  by  fraud  and would  be  void  ab  initio.  The  falsity  of  the  claim  lies  in  a

1 Writ Petition No 2846 of 2016 2 2015 (1) Mh LJ 457 3 (2017) 8 SCC 670

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representation  that  the candidate  belongs to  a category  of persons for whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained…  

A candidate  who  does  so  causes  detriment  to  a  genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter, a detriment is caused to  the  entire  class  of  persons  for  whom  reservations  are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary  corollary  of  the  invalidation of  the claim on the basis of which the appointment or admission was obtained.  The withdrawal  of  the  benefit  was  not  based on mens  rea  or  the  intent  underlying  the  assertion  of  a  false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed  as  a  logical  result  of  the  invalidation  of  a  claim to belong to a group or  category for  whom the reservation is intended.”  

8 We may note at this stage that in paragraph 59 of the judgment, this Court has

observed thus:

“59. The  Full  Bench  judgment  of  the  Bombay  High  Court in Arun [Arun v. State  of  Maharashtra,  2014  SCC OnLine  Bom 4595  :  (2015)  1  Mah  LJ  457]  has  essentially  construed  the judgments  in Kavita  Solunke [Kavita  Solunke v. State  of Maharashtra, (2012) 8 SCC 430 : (2012) 2 SCC (L&S) 609] and in Shalini [Shalini v. New English High School  Assn.,  (2013)  16 SCC  526  :  (2014)  3  SCC  (L&S)  265]  as  having  impliedly overruled the earlier Full Bench judgments in Ganesh Rambhau Khalale [Ganesh Rambhau Khalale v. State of Maharashtra, 2009 SCC  OnLine  Bom  20  :  (2009)  2  Mah  LJ  788]  and Ramesh Suresh  Kamble [Ramesh  Suresh  Kamble v. State  of Maharashtra, 2006 SCC OnLine Bom 1078 : (2007) 1 Mah LJ 423]  .  In  view of  the  conclusion  which  we have arrived  at  in regard  to  the  earlier  decisions  rendered  by  the  two-Judge Benches  in Kavita  Solunke [Kavita  Solunke v. State  of Maharashtra,  (2012)  8  SCC  430  :  (2012)  2  SCC  (L&S)  609] and Shalini[Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S) 265] , we are unable to subscribe

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to the view expressed by the Full Bench in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] . The judgment of the Full Bench of the Bombay High Court in Arun [Arun v. State  of  Maharashtra,  2014  SCC OnLine  Bom 4595 : (2015) 1 Mah LJ 457] holds that: (SCC OnLine Bom para 75)

(i) mere invalidation of the caste claim by the Scrutiny Committee would not entail the consequences of withdrawal of benefits or discharge from employment or cancellation of appointments that have  become  final  prior  to  the  decision  in Milind [State  of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] on 28-11-2000;

(ii)  the benefit  of  protection in  service upon invalidation of  the caste claim is available not only to persons belonging to Koshti and Halba Koshti but is also available to persons belonging to the special backward category on the same terms.

The High Court has even gone to the extent of holding that the decision in Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 :  2001  SCC  (L&S)  117]  was  in  the  nature  of  prospective overruling of the law which was laid down by the Bombay High Court.  The  above  view  of  the  Bombay  High  Court  is  clearly unsustainable.  Neither  the  judgment  in Milind [State  of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] nor any of the judgments of this Court which have construed it have  held  that Milind [State  of  Maharashtra v. Milind,  (2001)  1 SCC 4 : 2001 SCC (L&S) 117] was an exercise in prospective overruling.  The  High  Court  was  in  error  in  holding  so.  The decision of the Full Bench in Arun [Arun v. State of Maharashtra, 2014  SCC  OnLine  Bom  4595  :  (2015)  1  Mah  LJ  457]  is unsustainable. The Full Bench had evidently failed to notice that cases where the protection was granted by this Court following the invalidation of  a caste claim was in exercise of  the power conferred by Article 142 of the Constitution, depending upon the facts  and  circumstances  of  each  case.  The  jurisdiction  under Article  142  is  clearly  not  available  to  the  High  Court  in  the exercise of its jurisdiction under Article 226. The High Court erred in arrogating that jurisdiction to itself.”

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9 Hence, the basis of the judgment of the High Court is unsustainable as a result of

the law which has been laid down in the judgment in FCI. The decision of the Bombay

High Court in Arun Sonone has been disapproved.  

10 Faced  with  this  difficulty,  Mr  Soumya  Chakraborty,  learned  senior  counsel

appearing on behalf of the respondent, has relied upon an Office Memorandum dated 8

April  2019  issued  by  the  Ministry  of  Personnel,  Public  Grievances  and  Pensions,

Department of Personnel and Training.  The Office Memorandum is extracted below:

“OFFICE MEMORANDUM

Subject: Orders of Hon’ble Supreme Court in Civil Appeal No 10396/2018  arising  out  of  SLP  No.  13011/2018  Gajanan Marotrao Nimje & Others Vs RBI & Others and Civil Appeals Nos  10387-10388/2018  arising  out  of  SLP  Nos  18555- 18556/2018 SG Barapatre & Others Vs Shri Ananta Gajanan Gaiki  &  Others  regarding  Appointment  of  candidates belonging  to  Halba/Halba  Koshti/Koshti  caste/community against  vacancies  reserved  for  the  Scheduled  Tribes; representations received – Regarding  

****

With reference to the subject cited above, attention is drawn to the Hon’ble Supreme Court judgment dated 11.10.2018 in Civil  Appeal  No  10396/2018  arising  out  of  SLP  No. 13011/2018  Gajanan  Marotrao  Nimje  &  Others  Vs  RBI  & Others In which the Apex Court  has,  inter-alia,  passed the following order:-

“,…all  appellants  (who  are  from  Ha/ba Koshti/Koshti/Halba  communities)  shall  be placed  below  the  list  of  the  general  category candidates  as  on  28.11.2000  and  will  be continued  as  such  till  their  superannuation.  All the  benefits  which  the  appellants  earned  as reserved  category  candidates  after  28.11.2000 will  be surrendered/recovered. After  28.11.2000 the benefits  available  to  the  reserved category candidates will  be given to the members of the reserved category  regarding  whom there  is  no dispute.  There  shall  be  no  recovery  of  any benefits  from  the  employees  who  are  already

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superannuated…”

2. A  similar  stand  has  been  taken  by  the  Hon’ble Supreme  Court  in  Civil  Appeals  Nos  10387-10388/2018 arising out of SLP Nos 18555-18556/2018 SG Barapatre & Others  Vs  Shri  Ananta  Gajanan  Gaiki  &  Others  dated 10.10.2018 as under:-

“For  all  purposes,  those  people  will  get themselves  arrayed in  the general  category as on 28.11.2000 and placed below the last of the general category candidate as on that date.”

3. All  Ministries/Departments  are  requested  to  furnish action taken in the light of the above judgments. Copies of the aforesaid  judgments  are  annexed  herewith  for  ready reference.”   

Reliance has also been placed on another circular dated 20 June 2019 issued by the

Government of  India,  Department  of  Revenue,  Central  Board of  Direct  Taxes.   Both

circulars have relied upon the judgments of a two-Judge Bench of this Court in  S G

Barapatre v Shri Ananta Gajanan Gaiki4 (Barapatre) and Gajanan Marotrao Nimje v

The Reserve Bank of India5 (Nimje).

11 In order to consider the background in which the above circulars are issued, it

would be necessary to advert to certain significant facets having a bearing on the above

two decisions of this Court.   

12 In Barapatre, the appellants were in appeal before this Court against the orders

passed by the Nagpur Bench of the Bombay High Court.  The High Court noted that the

appellants had declined to subject themselves to a scrutiny of their caste certificate, as a

consequence of which their services were directed to be discontinued.  When the matter

4 Civil Appeal Nos 10387-10388 of 2018 5 Civil Appeal Nos 10396 of 2018

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travelled in appeal before this Court, a two judge Bench of this Court, by its judgment

dated 10 October 2018, noted that the same issue had earlier been considered by the

High Court, leading to a judgment dated 1 November 2012 in Writ Petition No 5198 of

2009 and connected matters.  The High Court, in the course of its earlier judgment, had

issued the following directions:

“18. In that view of the matter, we find that the petitioners are entitled to limited relief, that they are praying for. In the result, the impugned show cause notices are quashed and set aside. It  is  declared  that  the  petitioners  would  be  entitled  to protection of their appointments. It is further declared that if any benefits are granted after 28.11.2000 on the basis that they belong to Scheduled Tribes, the respondent Authorities are at liberty to  withdraw the said benefits and restore the position as on 28.11.2000. The respondents to take further necessary steps in accordance therewith.”

This Court noted in its decision in Barapatre that Food Corporation of India challenged

the order of the High Court dated 1 November 2012 before this Court in Special Leave

Petitions under Article 136 of the Constitution which were dismissed on 12 April 2013.

Review petitions were also dismissed on 26 February 2014.  In this background, the

Bench of two judges in the judgment dated 10 October 2018 in Barapatre observed as

follows:

“8.  Therefore,  the  said  judgment  qua  the  employees,  who were parties to those writ  petitions have become final.  The benefits  which  have  been  granted,  as  per  the  judgment specifically referred to in paragraph 18 of the judgment, which is  extracted  above,  cannot  be  taken  away  in  collateral proceedings.  

9. We make it clear that the employees covered by the said judgment  shall  only  be  entitled to  the benefits  which  have been granted specifically  in  paragraph 18 of  the  judgment referred  to  above.  For  all  purposes,  those  people  will  get themselves arrayed in the general category as on 28.11.2000 and placed below the last of the general category candidate as on that date.”

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13 The above observations make it abundantly clear that the challenge by the Food

Corporation of India to the order of the Bombay High Court had been rejected on 12

April 2013 and as a result of the decision inter partes, the order of the High Court had

attained finality.  Consequently, this Court clarified in paragraph 9 of the above order

that only the employees covered by the earlier judgment shall be entitled to the benefits

which have been granted specifically by the High Court in paragraph 18 of its judgment,

which has been extracted above.

14 The decision of the two judge Bench of this Court in Nimje was delivered on 11

October 2018, a day after Barapatre.  The judgment, which pertained to the Reserve

Bank  of  India,  again  adverted  to  the  earlier  decision  of  the  High  Court  dated  1

November 2012.  The judgment of this Court extracted paragraph 18 of the judgment of

the High Court (quoted above) based on which the Reserve Bank of India had issued a

circular dated 1 July 2013.  It was in this background that this Court, in its judgment

dated 11 October 2018, observed as follows:

“7. Apparently, there was some confusion with regard to the implementation  of  the  judgment  dated  01.11.2012  in  the judgment  in  Writ  Petition  No.1512/2004  and  connected matters.

8.  Based  on  the  recent  judgment  of  this  Court  passed  in Chairman and Managing Director, Food Corporation of India and Others Vs. Jagdish Balaram Bahira and Others, reported in (2017) 8 SCC 670, the High Court passed the impugned order directing the termination and recovery of the benefits.

9. We are afraid, in the peculiar background of the appellants and the history of the previous litigation of the same issue, the High Court is not justified in passing such an omnibus order. There is no case for anybody leave alone the writ petitioners that at the time of entry in service, the appellants played any fraud.  There  was  no  case  that  the  petitioners  therein  had played any fraud in obtaining the certificate or employment. In any case the appellants, it is pointed out that, even assuming that  they  do not  belong to  Scheduled Caste  or  Scheduled

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Tribe,  fall  either  under  the  most  backward  or  under  the backward  category,  who  were  also  entitled  to  some reservation at the time of recruitment. In order to avoid any litigation on this  aspect  only,  the High Court  in  its  wisdom passed the judgment dated 1.11.2012, that all the petitioners therein will be put in the general category.

10. It will be relevant to note that the common judgment dated 01.11.2012 was challenged before this Court and the special leave  petition(s)  and  the  review  petition(s)  were  also dismissed.

11. Having regard to the background, as above, we are of the view that the appellants are entitled to the protection granted by the same High Court in the judgment dated 1.11.2012 in Writ Petition No.1512/2004. In any case the parties to the writ petition  cannot  be  disturbed  collaterally  and  the  judgment operated as a judgment in rem in view of the circular dated 1.7.2013 issued by the Reserve Bank of India and since the litigations were pursued by the respective associations.”

15 The above observations indicate that it was in the peculiar background, which

was  noted  by  this  Court,  that  the  protection  of  services  was  granted.   Again,  it  is

necessary to note that in paragraph 10 of the observations which have been extracted

above,  this  Court  has noted that  the common judgment of  the High Court  dated 1

November 2012 had been challenged before this Court and both the Special Leave

Petitions and the Review Petitions were also dismissed.

16 The above narration would indicate that the decisions in  Barapatre dated 10

October 2018 and  Nimje dated 11 October 2018 were rendered in a context where,

prior to the decision of the three judge Bench in FCI, the order of the High Court dated 1

November 2012 had attained finality. Since the order of the High Court inter partes had

attained finality before the decision in FCI, the matter had to rest there. Both Barapatre

and Nimje are decisions of a two judge Bench and do not lay down any principle of law

contrary to the binding three judge Bench decision in FCI.  Neither the DOPT circular

dated 8 April 2019 nor the circular dated 20 June 2019 of the Department of Revenue

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can depart from the principles laid down in FCI.  The circulars must hence be construed

to  apply  only  to  the  peculiar  facts  noted  in  Barapatre and  Nimje which  we  have

explained earlier. Any other construction of the circulars will render them ultra vires. The

government by an executive act cannot possibly over-ride the binding decision of the

three judge Bench of this Court in FCI. In the decision in FCI, this Court held :

“65. Administrative circulars and government resolutions are subservient  to  legislative  mandate  and  cannot  be  contrary either to constitutional norms or statutory principles. Where a candidate  has  obtained  an  appointment  to  a  post  on  the solemn basis that he or she belongs to a designated caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the  services  of  such  an individual  cannot  be  protected  by taking  recourse  to  administrative  circulars  or  resolutions. Protection of claims of a usurper is an act of deviance to the constitutional  scheme as  well  as  to  statutory  mandate.  No government resolution or circular can override constitutional or  statutory  norms.  The  principle  that  the  Government  is bound by its own circulars is well settled but it cannot apply in a situation such as the present. Protecting the services of a candidate who is found not  to belong to the community  or tribe  for  whom  the  reservation  is  intended  substantially encroaches  upon  legal  rights  of  genuine  members  of  the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved groups or communities  are  liable  to  be  affected  detrimentally, government  circulars  or  resolutions  cannot  operate to  their detriment.”

17 The present case is governed by the judgment in  FCI.   Admittedly,  the issue

pertaining to  the protection of  the services of  the first  respondent  had not  attained

finality prior to the decision of the three judge Bench in FCI to which we have made a

reference earlier. The High Court has granted protection to the first respondent purely

on the basis of the Full Bench judgment in  Arun Sonone, which has specifically been

overruled by this Court.  

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18 In the circumstances, we allow the appeal and set aside the impugned judgment

and order of the High Court dated 11 July 2016.  In consequence, the Writ Petition filed

by the first respondent shall stand dismissed.  There shall be no order as to costs.

  …………...…...….......………………........J.

                                                                   [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.                              [K M Joseph]

 New Delhi;  January 27, 2020