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IN THE HIGH COURT OF BOMBAY at Nagpur
MOHIT S. SHAH, VASANTI A. NAIK & R.K. DESHPANDE, JJ.
Arun – Petitioner
Versus
State of Maharashtra through its Secretary, Department of Education – Respondent
Writ Petition Nos. 5297 of 2013, 3890 & 4363 of 2013
Decided On : 22-12-2014
The decision of the Division Bench of the High Court in the case of Pradip Koli to the extent it holds in para 26 that "the case of A.P. Ramtekkar does not notice that the decision in the case of Kavita Solunke is confined to those who were claiming to be Halbas and therefore, it is not a binding principle" does not lay down a correct legal position and hence it is partly overruled, making it further clear that Court concurred with rest of the judgment as laying down a correct position of law in respect of "Koshti" and "Halba Koshti". Similarly, in Rakesh Dafade’s case, the Division Bench has granted protection to the persons belonging to "Koli" caste falling in the Special Backward Class category. Court does not find that the grant of such protection is contrary to any of the decisions of the Apex Court.
Constitution of India - Articles 15, 16, 142, 226 and 227 Protection to caste claim in service. High Court can grant protection to create claim in service in exercise of its jurisdiction under Articles 226 and 227 of Constitution. Chapter III under the Constitution of India does not provide a fundamental right of being appointed or promoted to any post either to a member of any backward class community or to a person belonging to open category. Merely because a post is reserved for any of the Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category or Classes, and a person belonging to such backward class category becomes eligible to compete for the post, it would not follow that he gets a right of being appointed or promoted to the said post. If a person really belonging to any of the backward class categories for which a post is reserved is not selected or appointed to such post, there would be no violation of any right, muchless a fundamental right of being appointed or promoted to such post. No doubt that if someone, who does not belong to any such category of backward class for which the post is reserved, is appointed to the post, then it necessarily deprives the genuine candidates of their position in the zone of consideration of eligible candidates. If such deprivation or detriment is by the spurious persons, who gain entry in the public employment by fraudulent means as is understood in law and retain or improve it by adopting dilatory tactics and creating hurdles in completing the enquiry by the Scrutiny Committee, then the question of protecting such person in service by the High Court in exercise of its equity jurisdiction under Articles 226 and 227 of the Constitution of India, would not arise. There is no fundamental right or even a statutory right to seek protection in service upon invalidation of a caste claim, but it is a question of exercise of the equity jurisdiction under Article 226 or 227 of the Constitution of India.
There cannot be any strait-jacket formula laid down either to refuse or grant protection in the employment either at the initial stage or at the promotional stage. The approach has to be practical and pragmatic rather than technical and pedantic keeping in view the object and purpose of the Constitution in providing the benefits and concessions to a particular category of backward class. The Court has to strike the balance between the conflicting claims of genuine candidates, who are denied the benefits meant for them and all other persons, who honestly and genuinely believe and claim themselves to be belonging to a particular category for whom the concessions and benefits were meant. The Court will have to consider the facts and circumstances of each case to decide whether the protection is to be granted or refused, and if it is to be granted, up to what stage and extent.
Constitution of India - Articles 15, 16, 226 and 227 Protection to caste claim in service. - Claim of protection to caste claim in service is not a fundamental right but only a question of exercise of equity jurisdiction under Articles 226 and 227 of Constitution. In the absence of such a direction, the judgment would have operated retrospectively affecting all admissions and appointments that had become final, creating uncertainty, instability and chaotic situation. Such direction is, therefore, binding on all the Courts and accordingly it is expected to decide the cases. The doctrine of prospective overruling can also be considered to be a part of judicial legislation and has, therefore a binding effect under Article 141 of the Constitution of India so as to take care of the transitory situation like the laws made by the Parliament or the State Legislatures to save the past transactions and to prohibit their reopening of the concluded issues on the basis of new enactment.
Constitution of India - Articles 136 and 141 Precedent. Since dismissal of SLP in limine by Apex Court would not constitute a ratio of decision hence said dismissal not prevents High Court from examining said decision on merits.
Constitution of India - Articles 226 and 227 Writ jurisdiction. - High Court exercising writ jurisdiction under Articles 226 and 227 of Constitution acts as a Court of law as well as Court of Equity. High Court exercising its jurisdiction under Article 226 or 227 of the Constitution of India not only acts as a Court of law, but also as a Court of equity. There are no limits, fetters or restrictions placed on this power of superintendence. The purpose of it is to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that the justice is meted out fairly and property. The power is to be exercised to advance the ends of justice. While granting relief, the Court must take into account the balancing interests and equities and granting or withholding of relief, would depend upon the considerations of justice, equity and good conscience.
Maharashtra Scheduled Castes, Scheduled Tribes Denotified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 - Sections 6(2) and 11 Maharashtra Scheduled Castes, Scheduled Tribes Denotified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2003, Rule 12(qa) Scope of enquiry by Scrutiny Committee. - Since enquiry by Scrutiny Committee is of summary nature hence its scope is merely to ascertain genuineness or validity of claim. - The enquiry by the Scrutiny Committee is of a summary nature and merely to ascertain the genuineness or validity of the claim or an eligibility of a person to make such claim based upon the correctness of the information furnished and the material placed on record. This is the scope of enquiry or scrutiny laid down under sub-section (2) of Section 6 of the said Act read with sub Rule 9(a) of Rule 12 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003. It is not the scope of the scrutiny or the object and purpose of the enquiry by the Scrutiny Committee to satisfy itself or find out whether a Caste Certificate produced is false, in the sense that it is fraudulent or to hold a person guilty of the offences under Section 11 of the said Act and/or to punish the claimant either for producing a false Caste Certificate or for securing an employment on the basis of such certificate.
Maharashtra Scheduled Castes, Scheduled Tribes Denotified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 - Sections 7 and 10 Withdrawal of benefit and discharge from employment. Since mere failure to establish a caste claim, not means it is a false claim hence withdrawal of benefit and discharge from employment is not an automatic consequence at invalidation of caste certificate. - 1. Mere invalidation of the cast claim by the Scrutiny Committee would not entail the consequences of withdrawal of benefits or discharge from the employment or cancellation of appointments that have become final prior to the decision in Milind’s case on 28.11.2000.
2. Upon invalidation of the caste claim by the Scrutiny Committee, the benefits obtained or appointments secured from 28.11.2000 upto 18.10.2001 can be withdrawn or cancelled, depending upon the terms of the employment, if any, in writing.
3. The benefits obtained or appointments secured after coming into force of the said Act on 18.10.2001 can be withdrawn or cancelled immediately upon invalidation of the caste claim by the Scrutiny Committee.
4. The benefit of protection in service upon invalidation of the caste claim is available not only to the persons belonging to "Koshti" and "Halba Koshti", but it is also available to the persons belonging to Special Backward Class category on the same terms as is available to "Koshti" and "Halba Koshti", and
5. The claim of the persons belonging to Nomadic Tribes, Vimukta Jatis and Other Backward Class category shall be decided on the lines of the decision of the Apex Court in the case of R. Unnikrishnan and another v. V.K. Mahanudevan and others, reported in 2014 (2) All MR 468 (SC).
Maharashtra Scheduled Castes, Scheduled Tribes Denotified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 - Sections 7 and 10(1) Withdrawal of benefit under Section 10(1). - Provisions of Section 10(1) of Act, shall came into operation only on cancellation of caste certificate by Scrutiny Committee under Section 7 of Act. - In case of appointment secured in public employment after coming into force of the said Act by producing a false Caste Certificate, the provision of sub-section (1) of Section 10 shall come into operation only on cancellation of the Caste Certificate by the Scrutiny Committee. Under Section 7 of the said Act, the Scrutiny Committee is empowered to enquire into the correctness of the Caste Certificate obtained before or after coming into force of the said Act. The Scrutiny Committee is empowered to cancel the Caste Certificate after recording the specific findings (i) that a person has obtained a false caste certificate claiming to be belonging to such Castes, Tribes or Classes, and (ii) that such certificate was obtained fraudulently.
In the absence of such findings, there cannot be a cancellation of false Caste Certificate, though no benefits or appointment can be obtained and secured upon mere invalidation of the Caste Claim by the Scrutiny Committee. Thus, the provision of Section 7 of the said Act is an integral part of sub-section (1) of Section 10 and it will have to be read accordingly.
Maharashtra Scheduled Castes, Scheduled Tribes Denotified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 - Section 10 Withdrawal of benefit. - Provisions of Section 10 of Act would not operate in respect of benefit or appointment secured prior to Act coming into force. - The cases of dishonest and mendacious persons who have deliberately claimed consanguinity with Scheduled Castes or Scheduled Tribes, are not entitled to protection. One of the objects of the said Act, as it appears from the objects and reasons, is to provide for deterrent punishment for those, who indulge in fraudulent activities. Such objects cannot be defeated by dispensing with the enquiry and scrutiny by the Scrutiny Committee. On the contrary, it will be in furtherance of the objects of providing constitutional reservation to genuine tribals.
Maharashtra Scheduled Castes, Scheduled Tribes Denotified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 - Sections 10 and 11 Constitution of India, Articles 15 and 16 Grant of protection in service on basis of caste claim.Protection in service based on caste claim, can be granted only after verification of caste claim by Scrutiny Committee.
R.K. DESHPANDE, J.
1. All these matters are placed before this Full Bench by a common order of reference dated 1-10-2013 passed by the Division Bench of this Court (Smt. Vasanti A. Naik and Shri A.S. Chandurkar, JJ.) to consider and decide the following questions:
"1) Whether the relief of protection of service after invalidation of the caste claim can be granted by the High Court on the basis of the judgment of the Hon'ble Supreme Court in Kavita Solunke Vs. State of Maharashtra and others 2012(8) SCC 430?
2) If the answer to question No.1 is in the affirmative, can such relief of protection of service be granted by the High Court in a case where the same relief has been earlier refused by the High Court?"
2. The reason for framing question No.1 is that there is conflict of views taken by the different Division Benches of this Court upon consideration of the decision of the Apex Court in the case of Kavita Solunke v. State of Maharashtra and others, reported in (2012) 8 SCC 430. One line of the decisions taking the view that the protection in service granted in Kavita Solunke's case is an exercise of jurisdiction under Article 142 of the Constitution of India and other line of the decisions holding that it is a law declared by the Apex Court under Article 141 of the Constitution of India, which is binding.
3. So far as the question No.2, which falls for consideration of the Full Bench, is concerned, it does not arise out of any conflict between the views taken by the Division Benches of this Court, but the referring Bench thought it fit to refer the said question for decision by the Larger Bench, because it found that repeatedly the matters are coming before the Division Bench of this Court, wherein the relief of protection of service has been claimed inspite of the fact that the petitions claiming the same reliefs were already rejected or that no such relief was claimed, though the petitions were filed challenging the order of the Scrutiny Committee, which were rejected. The question of bar of res judicata, including that of constructive res judicata, therefore, falls for consideration.
4. Heard Shri Anil Mardikar, the learned Senior Advocate, assisted by Shri Narayan Phadnis, Advocate; Shri Rajeev Madkholkar, Shri Ram Parsodkar, Shri S.R. Narnaware, and Shri V.G. Wankhede, the learned counsels appearing for the petitioners in all these petitions; Smt. Bharti Dangre, the learned Government Pleader for the State and the Caste Scrutiny Committee; Shri Rohit Deo, the learned Assistant Solicitor General for Union of India, and Shri R.E. Moharir, the learned counsel for the respondent No.2 in Writ Petition No.3890 of 2013. In order to curtail the volume of this judgment, the rival contentions are not reproduced in this judgment, but we must appreciate the assistance provided by all the learned counsels and this judgment is the outcome of it and we believe that the answers to the rival contentions shall find place in it.
5. To trace out the history of litigation, the State Government found in the year 1980 that the concessions and benefits in various forms made available to the persons belonging to Scheduled Tribe category, including those of admissions in educational institutions and reservations in Government service were largely being availed by the persons, who do not really belong to Scheduled Tribe category by producing false Caste Certificates and such percentage was found as high as 60 per cent. Hence, a Committee was constituted by the Government Resolution dated 29-10-1980 to enquire into the procedure for issuance of Caste Certificates, which laid down the revised instructions and prescribed the authorities for issuance of Caste Certificates. By the same resolution, the Divisional Commissioner was empowered to enquire into the appeals in respect of the complaints and allegations about issuance of Caste Certificates to
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