JUDGMENT:

O R D E R

K.G.BALAKRISHNAN, CJI. -- Leave granted. Heard learned counsel for both sides.

2. The first respondent, who claimed that he belonged to a Scheduled Tribe Halba, was appointed as an Assistant Professor of Psychiatry in G. B. Pant Hospital, New Delhi, in a post reserved for Schedule Tribes, vide O.M dated 21.6.1990 of the Ministry of Health & Family Welfare, subject to caste status verification. He joined duty on 20.9.1990. One of the conditions subject to which he was offered appointment was that if any declaration given or information furnished by him was proved to be false, he will be liable for removal from service and other action which the government may deem appropriate. His claim that he belonged to a Scheduled Tribe was referred for verification. The Tehsildar Mohadi, on verification, sent a communication on 9.5.1991 that first respondent did not belong to Halba community. As first respondent questioned the report of the Tehsildar and asserted that he belonged to Halba tribe, his claim was referred to the Tribal Research & Training Institute, Pune for verification on 16.10.1992. On 6.3.1999, the Scrutiny Committee for verification of certificates of Schedule Tribes, informed the Ministry that the respondent did not belong to the Halba Tribe (ST). The Ministry, therefore, issued an OM dated 15.3.1999 calling upon the first respondent to show cause why his services should not be terminated for falsely claiming to belong to Halba Tribe. The first respondent challenged the decision of the Screening Committee in W.P. No.1176/1999. The High Court by judgment dated 6.4.2005 upheld the order dated 6.3.1999 of the Scrutiny Committee invalidating the first respondent's claim that he belonged to 'Halba' tribe, and directed that the first respondent will not be entitled to any of the benefits as a member of the Scheduled Tribe, from the date of its decision. The High Court however directed that the first respondent's services shall not be disturbed on the ground that he did not belong to a Scheduled Tribe. The said benefit of continuation in service, despite invalidation of claim regarding tribe, was extended by the High Court, purporting to follow the decision of this Court in State of Maharashtra vs. Milind - 2001 (1) SCC 4.

3. In the meanwhile on 27.8.2004, first respondent is stated to have tendered his resignation with effect from 25.9.2004. It is also stated that the first respondent has not attended to duty from 13.10.2004. The resignation was not accepted by the Ministry, as the matter was then sub-judice. The first Respondent made an application dated 25.3.2005 before the High Court stating that as he had resigned from the post, his writ petition may be disposed of without considering the matter on merits. The said application was not taken note of, by the High Court, while disposing the writ petition.

4. Feeling aggrieved by the direction of the High Court to continue the first respondent in service, the appellant has filed this appeal by special leave. The appellant contended that the High Court has erred in assuming that Milind (supra) protected the appointments made on the basis of wrong claim of caste/tribe, if the employee gave up his claim to scheduled tribe status and accepted the order of the Scrutiny Committee.

5. Milind (supra) related to a Medical College admission. The question that arose for consideration in that case was whether it was open to the State Government or Courts or other authorities to modify, amend or alter the list of Scheduled Tribes and in particular whether the "Halba-Koshti" was a sub-division of 'Halba' Tribe. This Court held that it was not permissible to amend or alter the list of Schedule Tribes by including any sub-divisions or otherwise. On facts, this court found that the respondent therein had been ad