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Jaydeo S/O Mahadeo Parate vs State Of Maharashtra And Ors. on 25 October, 2005

Bombay High Court
Jaydeo S/O Mahadeo Parate vs State Of Maharashtra And Ors. on 25 October, 2005
Equivalent citations: 2006 (2) MhLj 497
Author: B Gavai
Bench: P Brahme, B Gavai


JUDGMENT

B.R. Gavai, J.

1. Petitioner has filed Civil Application No. 6661 of 2005 for taking his undertaking on record to the effect that he does not wish to claim any benefit of belonging to Scheduled Tribe in future and for a direction that, since he was appointed on 18-6-1997, his appointment be protected and he be reinstated in service. However, taking into consideration the controversy involved in the present petition, we have taken up the present petition for final hearing.

2. That the petitioner claimed to be belonging to the tribe “Halba”, which is notified as a Scheduled Tribe. The petitioner came to be appointed as a Junior Clerk on temporary basis vide order dated June 18, 1997 by the respondent No. 3. Appointment of the petitioner was against a post reserved for the Scheduled Tribe candidate. Vide another order dated September 5, 2001, the respondent No. 3 held that the petitioner was entitled to be confirmed in service as a Junior clerk.

3. Since appointment of the petitioner was against a post reserved for Scheduled Tribe, the claim of the petitioner, which was based on the basis of the Caste Certificate issued to the petitioner by the Executive Magistrate, Arjuni Morgaon, dated 22-8-1988, came to be referred by his employer to the respondent No. 2. The Scheduled Tribe Caste Scrutiny Committee (hereinafter referred to as “the Committee”). The respondent No. 2-Committee came to the conclusion that the petitioner did not belong to the Tribe ‘Halba’, but he belongs to caste “Koshti” and as such, it invalidated the claim of the petitioner vide order dated September 23, 2002. The petitioner, thereafter approached this Court challenging the order passed by respondent No. 2-Committee. It appears that during pendency of the petition, the petitioner’s services came to be terminated vide order dated December 12, 2002. The petitioner, therefore, amended the petition so as to challenge his termination.

4. Initially, vide order dated January 29, 2003, this Court granted status quo which was continued from time to time. However, vide order dated July 1, 2003, on civil applications moved by respondent No. 3, this Court clarified that since the date on which status quo was granted i.e. 29-1-2003 the petitioner’s services already stood terminated vide order dated 13-12-2002, there was no question of grant of protection to the petitioner and as such, there was no question of reinstatement of the petitioner.

5. By the aforesaid Civil Application, the petitioner has filed an undertaking that he has given up his claim of belonging to the Scheduled Tribe and that he shall hereinafter not claim any of the benefits that are available to the members of the Scheduled Tribe. The petitioner has restricted his claim in the present petition for protection of his services in view of the judgment of the Apex Court in the case of State of Maharashtra v. Milind and Ors. reported in 2001(1) Mh.L.J. page 1.

6. We have heard Mr. R.K. Deshpande, learned Counsel appearing on behalf of the petitioner, Mrs. S.W. Deshpande, Advocate for respondent No. 2 and Mr. Ahirkar, A.G.P. for respondent Nos. 1, 3 and 4.

7. Mr. Deshpande, Advocate appearing on behalf of the petitioner submits that, in view of the judgment of the Division Bench of this Court in the case of Milind Sharad Katware and Ors. v. State of Maharashtra and Ors. reported in 1987 Mh.L.J. 572, the “Halba Kostis” in the Vidharbha region of the State of Maharashtra were being treated as Scheduled Tribe for a considerable passage of time. He submits that the judgment of the Division Bench of this Court was delivered after taking into consideration the judgments of the Apex Court in the case of Dina v. Narayan reported in 38 ELR 212 and Bhaiya Ram Munda v. Anirudh Patar reported in 1970(2) SCC 825. The learned Counsel submits that only on 28-11-2000 i.e. the date on which the judgment was delivered by the Apex Court in the case of State of Maharashtra v. Milind it was held that ‘Halba Koshtis’ are not entitled to the benefits available to the members belonging to the Scheduled Tribes. He submits that by this judgment the judgments of the Apex Court in the case of Dina and Bhaiya Ram Munda (cited supra) were held not to be a good law. Mr. Deshpande, Advocate submits that while holding that “Halba Koshtis” are not entitled for the benefits of the Scheduled Tribe, the Constitution Bench of the Apex Court, having regard to passage of time and circumstances and other related affairs, made it clear that admissions and appointments that have become final shall remain unaffected by the said judgment. He submits that another Bench of the Apex Court in the case of Sanjay Punekar v. State of Maharashtra 2002(1) Mh.L.J. (SC) 300 has also held that taking notice of passage of time the Apex Court in the case of State of Maharashtra v. Milind Katware (cited supra) has made its order prospective keeping unaffected appointments that have become final. He submits that not only this but in several other matters another Bench of the Apex Court has granted protection to the admissions and appointments which have become final in view of the prospective applicability of the judgment and order passed in the case of State of Maharashtra v. Milind (cited supra). The learned Counsel submits that not only this, but in the case of R. Vishwanatha Pillai v. State of Kerala and Ors. reported in (2004)2 SCC 105 itself the Apex Court has protected the admission of the son of R. Vishwanatha Pillai to Engineering Course in view of the law laid down in the case of State v. Milind Katware (cited supra). Mr. R.K. Deshpande, Advocate further submits that the judgment of the Apex Court in the case of Bank of India v. Avinash reported in 2005(4) Mh.L.J. (SC) 409 : 2005(7) SCALE 272 has not taken into consideration the judgment of the Apex Court in the case of Sanjay Punekar (cited supra). The learned Counsel, therefore, submitted that since the judgment in the case of Bank of India was rendered without noticing the judgment in Sanjay Punekar’s case and since the strength of both the Benches was equal, the judgment in the case of Bank of India did not have binding force and that this Court, in view of the judgment in the case of State of Maharashtra v. Milind and in the case of Sanjay Punekar should protect the services of the petitioner since the appointment of the petitioner was in the year 1997 i.e. much prior to 28-11-2000.

8. Mrs. S.W. Deshpande, Advocate appearing on behalf of respondent No. 2- Committee, on the contrary, submits that since the petitioner’s caste claim has been invalidated and he has been held not to be ‘Halba’, it will have to be presumed that the appointment of the petitioner was made on fraudulent basis. She submits that the moment caste claim is invalidated, it automatically results into fraud and as such, such persons who have been appointed against reserved category are not entitled to protection. Mrs. Deshpande relies on the judgment of State of Maharashtra v. Madhuri Patil, reported in AIR 1995 SC 94 and on the case of R. Vishwanatha Pillai (cited supra).

9. The Division Bench of this Court in the case of Milind v. State of Maharashtra (cited supra) after placing reliance on the judgments of the Apex Court in the case of Dina v. Narayan (cited supra) and several other judgments of various High Courts held that it was permissible to enquire whether any subdivision of tribe though not mentioned, is part and parcel of such tribe mentioned therein. This Court further held that ‘Halba Koshti’ is a sub-division of main Tribe ‘Halba/Halbi’ as per entry No. 19 in the Act as applied to Maharashtra. It can further be seen that the Apex Court in the case of Dina (cited supra) applying the Affinity Test has held that ‘Manas’ who are Marathas and not Gonds are not Scheduled Tribes. It can further be seen that the Apex Court in the case of Bhaiya Ram Munda (cited supra) held that it was permissible to enquire as to whether Patars are Mundas or not. The Apex Court on consideration of the evidence took a view that Patars are sub-tribes of Mundas and that they are not different from Mundas. The Apex Court also rejected the contention that since Patars are not specifically mentioned in the List they cannot be included in general heading Munda. The Apex Court in the case of Bhaiya Ram Munda relied on the judgment of the Constitution Bench of the Apex Court in the case of B. Basavalingappa v. D. Munichinappa reported in AIR 1965 SC 1269. In the said case, since in the Presidential Order Bhovi caste was included and that there was no caste in the then Mysore State which was known as Bhovi, the Constitution Bench found that it was necessary to find out as to which caste was meant by the use of name Bhovi and for that purpose, recording of evidence was permissible. The Apex Court in the case of Bhaiya Ram Munda (cited supra) has also referred to the judgment of the Constitution Bench in the case of Bhaiyalal v. Harikishan Singh and Ors. . It can thus be seen that the Apex Court in the case of Bhaiya Ram Munda had sought support from the judgment of the Constitution Bench in the case of B. Basavalingappa (cited supra). The Division Bench of this Court, in turn, seeking support from the judgment of the Apex Court in the case of Bhaiya Ram Munda held that it was permissible to enquire whether any sub-division of a tribe though not mentioned in the Act is a part and parcel of the Tribe. This Court further held that Halba Koshti is a sub-division of main Tribe Halba/Halbi. As already stated hereinabove, the Division Bench had also sought support for the view that it had taken, from various judgments of this Court as well as other High Courts.

10. One more fact that needs to be noted is that the Division Bench of this Court in an earlier matter i.e. Abhay Parate v. State of Maharashtra reported in 1984 Mh.L.J. 289 had held that ‘Halba Koshtis’ were included in the entry of ‘Halba’ Tribe and had, therefore, quashed and set aside the order passed by the authority invalidating the Caste Certificate issued to the petitioner therein of belonging to Tribe ‘Halba’.

11. The State of Maharashtra had filed a Special leave petition challenging the judgment of the Division Bench of this Court in the case of Abhay Parate v. State of Maharashtra (cited supra). Though the Apex Court refused to grant leave in the said matter, it held that the findings recorded by the High Court in the said case would be confined and applicable only to the petitioner before the High Court. However, the Apex Court had kept the larger question open and granted liberty to raise the said issue to the State of Maharashtra.

12. It can thus be seen that, in view of this position, the question as to whether ‘Halba Koshtis’ in the Vidarbha region in the State of Maharashtra are Scheduled Tribe was under a shadow of doubt for a considerable length of time. In the case of Abhay Parate (cited supra), this Court had taken a view that ‘Halba Koshtis’ are entitled to the benefits of Tribe ‘Halba’. Though in a Special Leave Petition filed by the State against the judgment of this Court in the said case, leave was refused by the Apex Court, it had stated that the said judgment shall govern the petitioner only. The Apex Court had also kept the larger issue open. In the case of Milind v. State (cited supra), the Division Bench of this Court seeking support from the judgment of the Apex Court in the case of Bhaiya Ram Munda (cited supra), which had in turn sought support from the judgment of the Constitution Bench in the case of B. Basavalingappa (cited above) had reiterated its earlier view that “Halba Kosthi” is a sub-tribe of ‘Halba/Halbi’ as per entry No. 19″.

13. It can further be seen that this doubt was cleared when the judgment of the Apex Court in the case of State of Maharashtra v. Milind Katware was delivered on 28-11-2000. The Apex Court held that the entry in the Presidential Order has to be read as it is and it is not permissible to say that the tribe, sub-tribe part or a group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribe order, if not so specifically mentioned. The Constitution Bench of the Apex Court found that the view taken by the Division Bench of the Apex Court in the cases of Bhaiya Ram Munda and Dina (cited supra) was not a correct view. The Apex Court also found that reliance placed by the Division Bench of the Apex Court in the case of Bhaiya Ram Munda on the judgment of the Constitution Bench of the Apex Court in the case of B. Basavalingappa was not well placed. As such, the judgments delivered by the Division Bench of the Apex Court in the cases of Bhaiya Ram Munda and Dina were overruled by the Apex Court in the case of State of Maharashtra v. Milind Katware (cited supra). The Apex Court found that the Division Bench of this Court had seriously erred in not following the view of the Constitutional Benches of the Apex Court in the cases of B. Basavalingappa and Bhaiyalal (cited supra). The Apex Court held that the High Court had also erred in not following the judgments of aforementioned two Constitution Benches and preferred to follow the judgment of the Division Bench of the Apex Court in the cases of Bhaiya Ram Munda and Dina and the Full Bench Judgment of the Orissa High Court which did not lay down the law correctly. The Apex Court also held that the High Court was not right in invoking the Doctrine of Stare Decisis. Allowing the said appeals and setting aside the judgments and order of the High Court, the Apex

Court observed thus :

Having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No. 16372/85 and other related affairs, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment.

14. The Division Bench of the Apex Court in the case of Sanjay Punekar v. State of Maharashtra (cited supra) observed thus :

This Court has now decided the question of law against the appellant. At the same time, it has taken notice of the passage of time and, therefore, made its order prospective, keeping unaffected appointments that had become final. This is an appropriate case in which to apply the same principle having regard to the fact that the appointment of the appellant was made long back. Therefore, the only order that needs to be made is to say that the judgment of this Court in State of Maharashtra v. Milind and Ors. 2001(1) Mh.L.J. (SC) 1 : 2001(1) SCC 4 shall not affect the appointment of the appellant.

15. Not only this, but the another Division Bench of the Apex Court vide judgment and order dated December 12, 2002 in Civil Appeal No. 3102 of 1998 in the case of State of Maharashtra and Ors. v. Om Raj along with other 17 matters granted protection to the admissions and appointments which were already made prior to the judgment of the Apex Court in the case of State v. Milind Katware.

16. It can thus be seen that the Apex Court itself in the case of State of Maharashtra v. Milind Katware has made it clear that the admissions and appointments that have become final shall remain unaffected by the said judgment. Not only this, but the Division Bench of the Apex Court in the case of Sanjay Punekar has also made it clear that the order in the case of State v. Milind Katware was prospective keeping unaffected the admission and appointments that had become final. Not only this, but another Division Bench of the Apex Court in about 18 matters has protected admissions and appointments which had become final vide order dated December 12, 2000.

17. Insofar as the judgment of the Apex Court in the case of R. Vishwanatha Pillai (cited supra) is concerned, it can be seen that, in the reported judgment, the Apex Court was considering two appeals; one by R. Vishwanatha Pillai and the other by his son Vimal Ghosh V. In the aforesaid case, R. Vishwanatha Pillai who had obtained the Caste Certificate of belonging to “Vettuvan” community, which was recognized as a Scheduled Caste and as such, obtained appointment to the post of Deputy Superintendent of Police against a seat reserved for the Scheduled Caste candidate. However, in the school record of said R. Vishanatha Pillai, his caste was recorded as “Viduvar Pillai” which was a higher caste. His father’s caste was recorded as “Nair”. His mother’s caste as well as his brothers and sisters castes were recorded as “Viduvar Pillai” and “Nair”. The Government of Kerala, therefore, on the basis of the complaint received, ordered a full-fledged anthropological enquiry into the caste status of the appellant. The Research Committee on the basis of the enquiry found that the appellant did not belong to the Scheduled Caste Community. After the judgment of the Apex Court in the case of Madhuri Patil (cited supra), the Scrutiny Committee rejected the claim of said R. Vishwanatha Pillai of belonging to the Scheduled Caste. The order of Scrutiny Committee was upheld by the High Court as well as the Apex Court. Apprehending his termination, said Pillai had approached the Central Administrative Tribunal seeking direction that he should not be terminated from the services on the basis of the proceedings of the Scrutiny Committee. The Central Administrative Tribunal directed that the services of the appellant shall not be terminated without following due procedure laid down under Article 311 and under the Rules. The High Court accepted the Writ Petition and reversed the order of the Central Administrative Tribunal. Being aggrieved thereby, the petitioner approached the Apex Court. The Apex Court in the aforesaid case found that the misconduct alleged against the appellant was that he entered the service against a reserved post meant for Scheduled Caste/Scheduled Tribe on the basis of false Caste Certificate. The Apex Court also found that Rule 6 and Rule 7 of the All India Services (Discipline and Appeal) Rules, 1969 i.e. the Rules governing the service conditions, permitted termination of services for an Act or omission on the part of the appellant pertaining to the period prior to his joining services. In the facts of the said case, it was clearly proved that the appellant R. Vishwanatha Pillai had usurped a post meant for a Scheduled Caste candidate by playing fraud and producing a false Caste Certificate. Admittedly, in the said case, the appellant was a person belonging to the higher caste and had obtained a certificate of belonging to a Scheduled Caste and had further obtained appointment on the basis of the said Caste Certificate.

18. However, the Apex Court in the case of R. Vishwanatha Pillai (cited supra) itself, while considering the appeal filed by his son who had joined the Regional Engineering College, has observed thus :

In terms of the orders passed by the Constitution Bench of this Court in State of Maharashtra v. Milind we direct that his result be declared and he be allowed to take his degree with the condition that he will not be treated as a Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing from the caste certificate obtained by him. His caste certificate has been ordered to be cancelled. Henceforth, he will be treated as a person belonging to the general category for all purposes.

19. It can thus be seen that though the Apex Court found that the said R. Vishwanath Pillai had obtained appointment in service by playing fraud and it did not protect his service, the Apex Court protected admission of said R. Vishwanath Pillai’s son in the Engineering Course by applying the principle laid down by the Constitution Bench of the Apex Court in the case of State of Maharashtra v. Milind (cited supra).

20. In the case of Bank of India (cited supra), it is not clear as to whether the employee concerned therein also belongs to ‘Halba Koshti’ Tribe, Though we had requested the learned Counsel appearing for respondent No. 2-Committee to find out as to whether the respondent in the said case i.e. Avinash D. Mandivikar also belongs to ‘Halba Koshti’ Tribe or not and had granted sufficient time, the learned Counsel could not get information as to – to which Tribe he claimed to belong. However, it can be seen that the principle applied by the Apex Court in the said case is that when action is founded on fraud the question of unreasonable period for initiation of action is immaterial. Dealing with the contention of the respondent therein that the respondent was entitled to protection as granted in the case of State v. Milind Katware the Apex Court observed in para 10 thus :

The protection under the Milind’s case (supra) cannot be extended to the respondent No. 1 employee as the protection was given under the peculiar factual background of that case. The employee concerned was a doctor and had rendered long years of service. This Court noted that on a doctor public money has been spent and, therefore, it will not be desirable to deprive the society of a doctor’s service. Respondent No. 1-employee in the present case is a bank employee and the factor which weighed with this Court cannot be applied to him.

21. With great respect to the observations made in the aforesaid para, reference to the last paragraph of the judgment in the case of State v. Milind (cited supra) would show that the Apex Court has made clear that the admissions and appointments that have become final shall remain unaffected by the judgment. It appears to us that the Constitution Bench in the case of State v. Milind having regard to the passage of time and in the given circumstances and other related affairs, made it clear that the admissions and appointments that have become final shall remain unaffected by the said judgment. Reading of the said part in the last paragraph, in our respectful opinion, would not restrict protection only to the petitioner in the said case. The Constitution Bench has used the words “admissions and appointments that have become final”. Not only this, but the Division Bench of the Apex Court in the case of Sanjay Punekar (cited supra) has also clearly observed that the Constitution Bench in the case of State v. Milind Katware has made its order prospective keeping the appointments that had become final unaffected. Not only this, but another Division Bench of the Apex Court in Civil Appeal No. 3102 of 1998 has also protected various admissions and appointments on the basis of the observations made by the Constitution Bench in the case of State v. Milind Katware. The Division Bench consisting of three Hon’ble Judges in the case of R. Vishwanatha Pillai have also protected the admission of the son of R. Vishwanatha Pillai to the Engineering Course on the basis of observations made by the Apex Court in the case of State of Maharashtra v. Milind.

22. We are, therefore, of the view that the judgment of the Apex Court in the case of R. Vishwanatha Pillai (cited supra) would not be applicable in the facts of the present case. In the case of R. Vishwanatha Pillai, it was proved beyond doubt that R. Vishwanatha Pillai who was belonging to the higher caste had obtained a false Certificate of belonging to the Scheduled Caste and as such, obtained appointment by playing fraud. However, in the said case, the Apex Court, on the basis of the observations of the Constitution Bench in the case of Milind Katware, has protected admission of his son to the Engineering Course. Insofar as the judgment of the Apex Court in the case of Bank of India (cited supra) is concerned, firstly we are not aware as to whether the respondent therein also belongs to “Halba Koshti” Tribe. In any case, the said judgment does not notice the judgment of the Apex Court in the case of Sanjay Punekar (cited supra).

23. We do not find any conflict in the judgment of the Apex Court of the Hon’ble three judges in the case of R. Vishwanatha Pillai and the Division Bench of the Apex Court in the case of Sanjay Punekar (cited supra). As a matter of fact, in the case of R. Vishwanatha Pillai itself, the Apex Court has granted protection to R. Vishwanatha Pillai relying on the judgment of the Constitution Bench in the case of State of Maharashtra v. Milind Katware (cited supra). The conflict therefore, if any, is between the two Division Benches of the Apex Court in the case of Sanjay Punekar and the Bank of India (cited supra). As already stated hereinabove, the Division Bench deciding the case of Bank of India has not noticed the Division Bench judgment in the case of Sanjay Punekar, which holds that the Constitution Bench in the case of State of Maharashtra v. Milind Katware has made its judgment and order prospectively applicable.

24. The Full Bench of this Court in the case of Kamleshwar Ishwardas Patel v. Union of India and Ors. reported in 1994 Mh.L.J. 1669 dealing with a question as to what course has to be followed by the High Court when confronted with contrary decisions of the Supreme Court emanating from Benches of coequal strength, has held that the High Court is not necessarily bound to follow the decision later in point of time, but must follow the one which in its view is better in point of law. For coming at such a conclusion, the Full Bench of this Court has relied on the judgment of the Constitution Bench of the Apex Court in the case of Atma Ram v. State of Punjab . We are of the considered view that the Division Bench in the case of Sanjay Punekar has correctly considered the observations of the Constitution Bench of the Apex Court in the last paragraph of the judgment in the case of State v. Milind Katware.

25. We are, therefore, of the view that, in view of the judgment of the Constitution Bench in the case of State v. Milind Katware the Division Bench of the Apex Court in the case of Sanjay Punekar and the orders passed by the Apex Court in the bunch of matters bearing Civil Appeal No. 3102 of 1998 with other matters, the judgment and order in the case of State v. Milind Katware has been made prospectively operational and the Apex Court has protected all such admissions and appointments that have become final. We reiterate that “Halba Koshtis” in the Vidarbha region of the State of Maharashtra stand on different pedestal in view of the position that we have discussed hereinabove.

26. It is not the case of the respondents herein that the petitioner had obtained false Caste Certificate on the basis of fraudulent claim. At the cost of reiteration, we state that there was a doubt regarding the position of Halba Koshtis in the Vidarbha region which was made clear by the Apex Court in the case of State v. Milind on 28-11-2000. It is also not the case of the respondents that the petitioner herein had obtained the appointment on the basis of fraudulent claim. We, therefore, find that the petitioner’s appointment, which was much prior to 28-11-2000 i.e. the date on which the judgment of the Apex Court was delivered in the case of State v. Milind (cited supra), is entitled to be protected in view of the observations of the Apex Court in the last paragraph of the said case. The petition is, therefore, partly allowed.

Respondent No. 3 is directed to reinstate the services of the petitioner with continuity in service. It is, however, made clear that the petitioner shall not be entitled to any backwages.

It is further made clear that neither the petitioner nor his legal representatives would claim any of the benefits as are available to the members belonging to Scheduled Tribe in future. The petitioner is directed to file an undertaking to his employer to that effect.

The petitioner is further directed to deposit his original Caste Certificate with the Issuing Authority.

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