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2013 Supreme(UK) 558
SUPREME COURT OF INDIA
Hon’ble Mr. Justice T.S. Thakur and Hon’ble Mr. Justice Vikramajit Sen
Civil Appeal No. 10997 of 2013
SHALINI – Appellant
Versus
NEW ENGLISH HIGH SCH. ASSN. & ORS. – Respondents
Decided on : 12.12.2013
Case referred :
1. Union of India v. Dattatray (2008) 4 SCC 612.
2. State of Maharashtra v. Milind (2001) 1 SCC 4.
3. E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394.
4. R. Vishwanatha Pillai v. State of Kerala (2004) 2 SCC 105.
5. State of Maharashtra v. Om Raj (2007) 14 SCC 488.
6. State of Maharashtra v. Viswanath [C.A.No.7375 of 2000].
7. Punjab National Bank v. Vilas (2008) 14 SCC 545.
8. Bank of India v. Avinash D. Mandivikar (2005) 7 SCC 690.
9. BHEL v. Suresh Ramkrishna Burde (2007) 5 SCC 336.
10. State of Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481.
11. Kavita Solunke v. State of Maharashtra (2012) 8 SCC 430.
12. Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54.
Headnote: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, Sec. 10 — 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 — The appellant had been in service since 6.11.1981 on the strength of her claim of consanguinity to ‘Halba Scheduled Tribe’ — She was appointed in a vacancy earmarked against the Scheduled Tribe category — Thereafter, on 28.4.1994 she was promoted as Head Mistress subject to production of Caste Validity Certificate — But, Caste Scrutiny Committee, Nagpur held her caste certificate to be invalid — Held that since there was no falsity in the claim of the Appellant and therefore she cannot be viewed as having filed a ‘false’ Caste Certificate — Thus, rigors of Sec. 10, 2000 Act would not apply to her case — Accordingly, directions for reinstatement of the Appellant in service but without any back wages.
(Paras 7, 8, 10)
egkjk”Vª vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa] vf/klwfpr gS & tkfr;ka (Vimukta Jatis) [kkukcnks’k tkfr;ka vU; fiNMs+ oxks± vkSj fo’ks”k ds vkSj fiNM+s oxZ ¼fofu;eu½ tkfr izek.k i= dh vuqfyfi tkjh djus vkSj lR;kiu fn, tkus vf/kfu;e] 2000] /kkjk 10 & Hkkjr ljdkj ds fnukad 10-8-2010 ds dk;kZy;&Kkiu] dkfeZd] yksd f’kdk;r vkSj isa’ku ea=ky;] dkfeZd vkSj izf’k{k.k foHkkx & izHkko & ;g fu.kZ; fy;k x;k fd O;fDr tks ßgYok dks’rh ;k dks’rhÞ tkfr ds Fks vkSj mudh fu;qfDr gqbZ Fkh mu inksa ij tks fd vuqlwfpr tkfr ds fy, vkjf{kr Fks vkSj egkjk”Vª jkT; ls lacaf/kr lafoèkku ¼vuqlwfpr tutkfr;ka½ vkns’k] 1950 ¼tks fd le;≤ ij la’kksf/kr gqvk½ ds vUrxZr l{ke izf/kdkjh }kjk ikfjr tkfr izek.k i= ds vk/kkj ij fd;k x;k Fkk ;k ftudh fu;qfDr 28-11-2000 dks ;k mlls igys iDdh dj nh xbZ Fkh] dks izHkkfor ugha fd;k tk,xk & vihykFkhZ gYok vuqlwfpr tkfr dh laxks=rk ds vius nkos ds cy ij lsok esa 6-11-1981 ls fu;qDr Fkh] ml in ij tks vuqlwfpr tkfr oxZ ds fy, vkjf{kr Fkk & ftlds ckn 28-4-1994 dks tkfr oS/krk izek.k i= ds vk/kkj ij mls Head Mistress izksUur fd;k x;k & ijUrq tkfr laoh{kk desVh] ukxiqj }kjk mldk tkfr izek.k i= voS/k ik;k x;k & /kkfjr pw¡fd vihykFkhZ ds nkos esa dksbZ >wB ugha Fkk blfy, ;g ugha dgk tk ldrk fd mlds }kjk >wBk tkfr izek.k i= nk;j fd;k x;k Fkk & bl izdkj /kkjk 10] vfèkfu;e 2000 dh fof/k n`<+rk dfFkr okn esa iz;ksT; ugha & rn~uqlkj vihykFkhZ dks cxSj fiNyk osru iznku fd, lsok esa iqu% LFkkfir djus ds vkns’kA ¼izLrj 7] 8] 10½
VIKRAMAJIT SEN, J. — 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 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 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 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 d
