Allowed

Sharad Hanmant Beske v. State of Maharashtra, through Secretary, Urban Development Dept and Anr.

Bombay HC4 Apr 2014WP/7974/2013

Case brief

AI extract

What is this about?

Employees whose caste certificates were invalidated sought service protection without retaining their earlier caste privileges. Finding no fraud or misrepresentation, the court protected continuity of service, preserved benefits under their existing SBC caste, and permitted withdrawal of later benefits attributable to the invalidated Scheduled Tribe claims.

What did the court decide?

Service protected with continuity; existing SBC benefits preserved, earlier caste benefits barred, and employers permitted to withdraw Scheduled Tribe benefits granted after 28.11.2000.

Sharad Hanmant Beske Vs State of Maharashtra, through… — Service and Employment | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 3014 OF 2004

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Rakesh Sukanuji Dafade, aged adult, C/o. Office of the Regional Officer, Maharashtra Pollution Control Board, Sub Regional Office, Shah Chambers, 2^nd Floor, Valipir Road, Bail Bazaar, Kalyan (West), Dist. Thane421 301 .... Petitioner

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1 State of Maharashtra, through its Secretary, Environment Department,

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Mantralaya, Mumbai 400 032

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2 Chairman and MemberSecretary, Maharashtra Pollution Control Board, SubRegional Office, Shah Chambers, 2^nd Floor, Valipir Road, Bail Bazaar, Kalyan (West), Dist. Thane.

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.... Respondents.

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WITH

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WRIT PETITION NO. 7973 OF 2013

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Dattatray Chandrakant Vasolkar, aged 38 years, residing at At post Baleghar, Tal. Wai, Dist. Satara. .... Petitioner

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1 State of Maharashtra, through its Secretary, Urban Development Dept., Mantralaya, Mumbai 400 032

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2 Satara Municipal Council, Through its Administrative Officer, Satara, Dist. Satara. .... Respondents. WITH WRIT PETITION NO. 7974 OF 2013

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Shar	ad Hanumant Beske,
aged	37 years, residing at
At po Dist.	st Nandwal, Tal. Koregaon, Satara. ....	Petitioner
	Vs
1	State of Maharashtra, through its Secretary, Urban Development Dept., Mantralaya, Mumbai 400 032
2	Satara Municipal Council, Through its Administrative Officer, Satara, Dist. Satara. ....	Respondents.
	WITH WRIT PETITION NO. 7975 OF 2013
Kisho aged	r Tukaram Shinde, 35 years, residing at
At po	st Banwadi, Tal. Koregaon,
Dist.	Satara. ....	Petitioner
	Vs
1	State of Maharashtra, through its Secretary, Urban Development Dept., Mantralaya, Mumbai 400 032
2	Satara Municipal Council, Through its Administrative Officer,
	Satara, Dist. Satara. ....	Respondents.

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WITH

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WRIT PETITION NO. 10286 OF 2013

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Ajit Baliram Koli, aged 42 years, residing at At post Banwadi, Tal. Koregaon, Dist. Satara. .... Petitioner

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1 State of Maharashtra, through its Secretary, Urban Development Dept., Mantralaya, Mumbai 400 032 2 Satara Municipal Council, Through its Administrative Officer, Satara, Dist. Satara. .... Respondents.

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WITH

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WRIT PETITION NO. 1702 OF 2013

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Pralhad Keshao Wankhede, Aged about 41 years, Occu Service, R/o. Shirke Building, Block No.4, Yamuna Nagar, Cherpoli, At post and Tal. Shahapur, Dist. Thane. .... Petitioner Vs 1 State of Maharashtra, through its Secretary, Rural Development Department, Mantralaya, Mumbai 400 032 2 Zilla Parishad, Through its Chief Executive Officer, Dist. Satara. .... Respondents.

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WITH

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WRIT PETITION NO. 3187 OF 2013

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Prakash Mahadu Shirsat, Aged 43 years, Residing at At post, Aarai, Tal. Baglan, Nashik, Dist. Nashik. ….Petitioner

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Vs.

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1 State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai32. 2 Scheduled Tribe Certificate Scrutiny Committee, Nasik Division, Nasik, through its MemberSecretary, having its office at Adivasi Vikas Bhavan, Old Agra Road, Nasik, District Nasik. 3 Maharashtra State Electricity Board, Through its Executive Engineer, (City) Nashik, having its office at Wani House, Maulana Azad Rd, Near National High School, Dist. Nashik. ….Respondents.

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WITH WRIT PETITION NO. 10569 OF 2013 Sanjay Waman Dhumal, Aged 40 years, residing at At post, Mahur, Tal. Purandar, Dist. Pune. ….Petitioner Vs.

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1 State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai32.

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2 Scheduled Tribe Certificate Scrutiny Committee, Pune Division, Pune, through its Deputy Director ® and Member Secretary having its office at 28, Queen's Garden Dist. Pune.

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3 Chief Executive Officer, Zilla Parishad Pune, Yashwantrao Chavan Bhavan, Education Department, Dist. Pune. ….Respondents.

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WITH

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WRIT PETITION NO. 8104 OF 2013

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Suresh Balkrishna Bhurkud, Aged 47 years, Residing at 1 Ashlesha, Flat No.13, Ekta Nagar, Kishor Suryavanshi Marg, Behind Ashram School, Mhasrul, Dist. Nashik4. ….Petitioner

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Vs.

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1 State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai32.

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2 Scheduled Tribe Certificate Scrutiny Committee, Nasik Division, Nasik, through its

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MemberSecretary, having its office at Adivasi Vikas Bhavan, Old Agra Road, Nasik, District Nasik.

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3 Chief Engineer, Irrigation Department, North Maharashtra Division Office, Sinchan Bhavan, Tryambakroad, Nashik2. ….Respondents.

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WITH

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WRIT PETITION NO. 2120 OF 2013

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Urmila Pandurang Chinchay @ Urmila Jeetendra Kombade, Aged 40 years, Residing at Kombade House, Gomagalli, Varsova, Andheri (W), Mumbai61. ….Petitioner Vs.

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3 Municipal Corporation of Greater Bombay through its

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Chief Accounts Officer, Head Office, Mahapalika Marg, General Administration Dept., Mumbai1. ….Respondents.

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WITH

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WRIT PETITION NO. 7976 OF 2013

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Suresh Bhanji Patil, Aged 42 years, Residing at Siddhi Sankalp Coop. Housing, Society, Plot No. 117/120, Sector23, Flat No. 302, Juinagar (W), Navi Mumbai.

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….Petitioner

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Vs.

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1 State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai32. 2 Scheduled Tribe Certificate Scrutiny Committee, Konkan Division, Thane, through its Member Secretary, having its office at Vartak Nagar, Ward Committee Office, Vedant Complex, Opposite Kores Company, Vartak Nagar, Thane (W), Dist. Thane. 3 The Sr. Manager, (EmployeeReins) West, Bharat Petroleum Corporation Ltd., Shiwadi, Mumbai15. 4 The Executive Magistrate, Mangaon, Dist. Raigad. ….Respondents.

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WITH

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WRIT PETITION NO. 8787 OF 2013

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Raju Laxman Kurunde, Aged 40 years, Residing at 329 B, Koli Lane, Mahabaleshwar, Tal. Mahabaleshwar, Dist. Satara. ….Petitioner

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Vs.

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1 State of Maharashtra, through its Secretary, Urban Development Dept., Mantralaya, Mumbai32.

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2 Giristhan Municipal Council, through its Administrative Officer, Mahabaleshwar, Dist. Satara.

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WITH

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WRIT PETITION NO. 2043 OF 2014

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Ashok Vithal Bidkar, Aged 46 years, Residing at Room No. 15, Flat No. 15, 3^rd Floor, Indranagari C.H.S. Ltd., Warje Octroi Naka, Pune410 058.

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….Petitioner

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Vs.

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1 State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai32.

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2 Scheduled Tribe Certificate Scrutiny Committee, Nasik Division, Nasik, through its

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MemberSecretary, having its office at Adivasi Vikas Bhavan, Old Agra Road, Nasik,

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3 Head of Education, Education Board, Pune Municipal Corporation, Dist. Pune. ….Respondents.

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	WITH WRIT PETITION NO. 1198 OF 2014
Kum. Aged resid Post Distr	Savita Pandurang Patil, 36 years, ing at At post Pandavadevi, Pynad, Tal. Alibag, ict Raigad. .... Petitioner
	Vs
1	State of Maharashtra, through its Secretary, Rural Development Department, Mantralaya, Mumbai 400 032.
2	Zilla Parishad, Raigad, through its Chief Executive Officer, Alibag District Raigad. .... Respondents.
	WITH WRIT PETITION NO. 9540 OF 2013
Anil	Madhavrao Parate,
Aged “Sam Socie	45 years, pada” Nav Mangal Housing ty, Kathe Lane, Pune Road,
Nash	ik422 011. ….Petitioner Vs.

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1 State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai32. 2 Scheduled Tribe Certificate Scrutiny Committee, Nashik Division, through its Member Secretary, having its office at Adivasi Vikas Bhavan, Old Agra Road, Nashik. 3 Maharashtra State Electricity Transmission Co. Ltd., Through its Chief Engineer (HR) having Its office at Prakash Ganga, Plot No. C19, EBlock, Ground Floor, Bandra Kurla Complex, Bandra (East), Mumbai400 051. ….Respondents. WITH

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WRIT PETITION NO. 11154 OF 2011

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Ashwini Achyut Patil, Aged ____ years, residing at Ghaswad, Post Poynad, Tal. Alibag, Dist. Raigad. ….Petitioner

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Vs.

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1 State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai32.

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2 Scheduled Tribe Certificate Scrutiny Committee, through its Member Secretary, having its office at Vartak Nagar

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Ward Office, Vedant Complex, Opposite Kores Company, Vartak Nagar, Thane, Dist. Thane.

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3 Education Board of Municipal Council, Panvel Dist. Raigad, through its Administrative Officer, having its office at Panvel, Dist. Raigad. ….Respondents.

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Mr. R.K. Mendadkar, with Ms. Helen KoliMandlik and Chintamani K. Bhangoji for the Petitioners in all the matters.

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Ms. S.S.Bhende, AGP with Ms. M.S. Bane, “B” Panel Counsel with Mr. A.I. Patel, AGP for the State in all the matters.

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Mr. R.S. Pai, a/w Ms.Radha Ved i/by M/s. Sanjay Udeshi & Co. for Respondent No.3 in Writ Petition No. 7976 of 2013.

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Mr. Sanjeev J. Rairkar for Respondent No.3 in Writ Petition No. 2043 of 2014.

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CORAM : ANOOP V. MOHTA AND A. A. SAYED, JJ.

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CLOSED FOR JUDGMENT ON : 28 FEBRUARY 2014 PRONOUNCED ON : 4 APRIL 2014.

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JUDGMENT (PER ANOOP V. MOHTA, J.):

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Rule returnable forthwith. Heard finally by consent of all

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the parties along with other connected matters. Therefore, this common judgment as the issues are similar, so also referred judgments and the law.

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2 In the present matters, the caste in question does not fall

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within the ambit of “Scheduled Tribe” and/or “Scheduled Tribe”, but it does fall within the ambit of “Special Backward Class (SBC)/OBC” i.e. “Mahadeo Koli”, “Koli” and “Koli M” . In all the matters, the Petitioners were appointed and confirmed prior to 28.11.2000, based upon the Caste Certificates. The Petitioners got all the benefits as belonging to the class “Mahadeo Koli”/ Koshti SBC/ Koli SBC. The respective caste claim/certificate was rejected by the concerned Scrutiny Committees, based upon the then prevailing procedures/circulars and thereby invalidated their caste certificates. The 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 (Maharashtra Act No. XXIII of 2001) (for short, the Act) w.e.f. 18 October 2001, provides the statutory procedure and mechanism to deal with such cases.

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3 In all the matters, the learned counsel appearing for the Petitioners, based upon the averments and/or on instructions, made a statement that they are restricting their claim and praying only for protection of their service/employment/career. They want to accept

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the decision so given by the Scrutiny Committee declaring their castes. The submission, therefore, is made to continue their services/employment and as they are entitled for the protection of services/employment. They are also willing to give up their caste benefits on the basis of original certificates except the continuity of service. They have also expressed their willingness to give up all the benefits, privileges granted after 28.11.2000. By accepting these statements, we are proceeding to pass this common order in the interest of justice.

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4 The claims revolving around the word/s “Koli”/”Hindu Koli”/ “Mahadeo Koli”/”Koli M.”. The confusion and the situation prevailing for many years and so also admission and the appointment based upon it. They tried, but were unable to prove the caste that itself does not mean that they have committed any illegality in claiming the same. In view of above nomenclatures, it cannot be stated that the Petitioners have committed any fraud and/or mis representation. Their services, cannot be disturbed because of the impugned orders. The Petitioners, however, are required to get the certificate of their existing caste to submit the same for the service

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record and/or for future purposes. Therefore, in view of the Supreme Court decisions as referred above and as the Petitioners are similarly placed, though caste is different, but the principle as laid down are quite applicable, the protection in service and/or continuity in service and/or reinstatement, without providing them benefits and/or in a given case, permitting the employer to withdraw the benefits would strike the balance.

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5 The various Courts, based upon the Supreme Court judgments and the judgments of the High Courts, granted the protection but not further privileges in view of following directions in State of Maharashtra Vs. Milind & Ors.¹ :

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“..... But we make it clear he cannot claim to belong to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words, he cannot take advantage of the Scheduled Tribes Order any further or for any other constitutional purpose. 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.”

(emphasis added).

1 (2001) 1 SCC 4

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6 There are judgments of the Supreme Court as well as High

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Courts where no such protections are extended as of right. The respective Courts have considered the facts and circumstances of each case and refused and/or granted the protection. The Petitioners and similarly placed persons now, based upon the Supreme Court judgments in (i) Kavita Soluanke vs. State of Maharashtra and ors.,² (ii) Deepak vs. Union of India and ors.,³ (iii) Shalini Vs. New English High Sch. Assn. & Ors.⁴ , (Decided on 12 December, 2013), (iv) R. Unnikrishnan & Anr. Vs. V.K. Mahanudevan & Ors.⁵ (Dated 10.01.2014) (v) Assistant G.M. And District Authority, Syndicate Bank & Anr. Vs. Ashok & Ors.⁶ (decided on 2212010), (vi) Exe. E. Ehv. C. Div. No.1, MSETCL, Nagpur & Anr. Vs. Jyotsna Bhondelal Shriwas & Ors.⁷ (decided on 432014) submitted to grant the similar protection and/or the reinstatement even by recalling the earlier orders rejecting their claims.

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2 2012 (5) Mh. L. J. 92

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3 Civil Appeal No.1298/2010

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4 2013(15) SCALE 273

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5 2014(1) SCALE 305

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6 Civil Appeal No. 8412 of 2009, Supreme Court, dated 20 February 2014.

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7 Special Leave to Appeal (Civil) No (s). 12905/2013 dated 4 March 2014.

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7 Considering the above trend this Court has also granted

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the protection by taking note of judgments of the Supreme Court and the High Courts including [ Vijaya Deorao Nandanwar (KU) v. Chief Officer, Municipal Council, Wardha]⁸ and many others. The statement is made that only directions so issued in Vijaya (supra) are stayed by the Supreme Court and not the judgment and the matter is likely to be heard at any time as pleadings are ready.

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8 The Supreme Court observations in Shalini (Supra) are as

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under:

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“5 It is evident that there is a plethora of precedents on this aspect of the law, and perhaps for this reason Counsel for the parties were remiss in drawing our attention in the present proceedings to the detailed judgment in Kavita Solunke v. State of Maharashtra (2012) 8 SCC 430, in which one of us, Thakur J, had analysed as many as eleven precedents including those discussed above. After reviewing all the judgments it was held, in the facts and circumstances of that case, that since that party had not intentionally or with dishonest intent fabricated particulars of a scheduled tribe with a view to obtain an undeserved benefit in the matter of appointment, she was entitled to protection against ouster from service, but no other benefit. In view of the comprehensive yet concise consideration of case law in Solunke, any further analysis would make the present determination avoidably prolix, and therefore our endeavour will be to cull out the principles which would

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8 2013 (5) Mh. L.J. 153.

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be relevant for deciding such like conundrums. These are – (a) If any person has fraudulently claimed to belong to a Scheduled Caste or Scheduled Tribe and has thereby obtained employment, he would be disentitled from continuing in employment. The rigour of this conclusion has been diluted only in instances where the Court is confronted with the case of students who have already completed their studies or are on the verge of doing so, towards whom sympathy is understandably extended; (b) Where there is some confusion concerning the eligibility to the benefits flowing from Scheduled Caste or Scheduled Tribe status, such as issuance of relevant certificates to persons claiming to be Koshtis' or Halba Koshtis' under the broadband of Halbas', protection of employment will be available with the rider that these persons will thereafter be adjusted in the general category thereby rendering them ineligible to further benefits in the category of Scheduled Caste or Scheduled Tribe as the case may be; (c ) this benefit accrues from the decision of this Court inter alia in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54 which was rendered under Article 142 of the Constitution of India. Realising the likely confusion in the minds of even honest persons the Resolutions/Legislation passed by the State Governments should spare some succour to this section of persons. This can be best illustrated by the fact that it was in_ **_Milind_** _that the Constitution Bench clarified that Koshtis' or HalbaKoshtis' were not entitled to claim benefits as Scheduled Tribes and it was the Halbas' alone who were so entitled. A perusal of the judgment in Vilas by Sirpurkar J, as well as Solunke makes it clear that this protection is available by virtue of the decisions of this Court; it is not exclusively or necessarily predicated on any Resolution or Legislation of the State Legislature; (d) Where a Resolution or Legislation exists, its raison d'etre is that protection is justified in presenti (embargo on removal from service or from reversion) but not in futuro (embaro on promotions in the category of Scheduled Caste or Scheduled Tribe).

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6 …........

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7 ….............. There is, therefore, palpable wisdom in the 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. However, they shall not get any benefit of reservation after 28.11.2000.”

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8 ….......... Be that as it may, we think that since there was no falsity in the claim of the Appellant and therefore that she cannot be viewed as having filed a false Caste Certificate, the rigours of Section 10 of the 2000 Act would not apply to her case. A perusal of the Order of the Scheduled Tribe Caste Certificate Committee, Nagpur shows that the Committee was satisfied that her claim to the caste of Gadwal Koshti' was correct but that she did not belong to `Halba' Scheduled Tribe. Government Resolution dated 15.6.1995 specifically declares that the following were basically backward in social, economic and educational viewpoint and were therefore “special backward class” vide government Resolution dated 7.12.1994 :

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“Sr. No. Name of the Caste 1 …................ 2 …............... 3 (1) Koshti (2) Halba Koshti (3) Halba Caste

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(4) Sali (5) Ladkoshti (6) Gadwal Koshti (7) Deshkar (8) Salewar (9) Padmashali (10) Dwang (11) Kachi Dhande (Glass occupation) (12) Patwos (13) Satpal (14) Sade (15) Dhankoshiti.”

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[ Emphasis supplied ]

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9 It requires specialised bodies such as Caste Scrutiny Committees, specialised lawyers, seasoned bureaucrats etc to decipher which category a relatively backward, or ostracized or tribal person falls in. Can it therefore seriously be contended that a person who has honestly, in contradistinction with falsely, claimed consanguinity with a certain group which was later on found not to belong to an envisaged Scheduled Tribe but to a special backward class be visited with termination of her employment? We thinks that that is not the intent of the law, and certainly was not what the ThreeJudge Bench was confronted with an Dattatray. In our opinion, therefore, the Appellant should have been debarred from any further advantage that would enure to persons belonging to the `Halba' Tribe.

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10 Accordingly, we direct reinstatement of the Appellant in service but without any back wages. With the passage of time it is possible that there may be another incumbent as Head Mistress of the Respondent No.1School and we think that it would not be equitable to remove such person. However, if this post falls vacant before the Appellant reaches the age of retirement or superannuation she shall be reappointed to that post but with no further promotion as a Scheduled Tribe candidate unless she is otherwise entitled as a special backward class candidate. The Appeal stands disposed of accordingly. The parties shall bear their respective costs.”

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Another judgment read and referred by the counsel

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appearing for the parties in support of their claim of protection of service/education is R. Unnikrishnan & Anr. (Supra ) not “Halba” “Koshti” Scheduled Tribe case, thereby also referring to Kavita Salunke (Supra), ultimately protection has been extended though not accepted the claim of Petitioners based upon the caste, based upon again the decision of Milind (supra) and Kavita Solunke (supra) by observing as under:

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“30 Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430, was also a similar case where the question was whether the appellant who was a Halbakoshti' could be treated as Halba' for purposes of reservation and employment as a Scheduled Tribe candidate. This Court traced the history of the long drawn confusion whether a Halba' was the same as HalbaKoshti' and concluded that while Halba' and HalbaKoshti' could not be treated to be one and the same, the principle stated in Milind's case (supra) was attracted to protect even appointments that were granted by treating Halba Koshti' as Halba Scheduled Tribe although such extension of the expression Halba' appearing in the Presidential Constitution (Scheduled Castes) Order 1950 was not permissible.

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31 In Sandeep Subhash Parate v. State of Maharashtra and others, (2006) 7 SCC 501, also dealing with a similar confusion between Halba' and HalbaKoshti' and applying the principle underlying in Milind's case (supra) this Court held that ouster of candidates who have obtained undeserved benefit will be justified only where the Court finds the claim to be bona fide. In State of Maharashtra v. Sanjay K. Nimje, (2007) 14 SCC 481 this Court held that the grant of

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relief would depend upon the bona fides of the person who has obtained the appointment and upon the facts and circumstances of each case.

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32 In the instant case there is no evidence of lack of bona fide by the respondent. The protection available under the decision of Milind's case (supra) could, therefore, be admissible even to the respondent. It follows that even if on a true and correct construction of the expression Thandan' appearing in The Constitution (Scheduled Castes) Order 2007 did not include Ezhuvas' and Thiyyas' known as Thandan' and assuming that the two were different at all relevant points of time, the fact that the position was not clear till the Amendment Act of 2007 made a clear distinction between the two would entitle all those appointed to serve the State upto the date of the Amending Act came into force to continue in service.

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33 …..

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34 In the result these appeals fail and are, hereby, dismissed. We, however, make it clear that while the benefit granted to the respondent V. K. Mahanudeven as a Scheduled Caste candidate till 30^th August, 2007 shall remain undisturbed, any advantage in terms of promotion or otherwise which the respondent may have been granted after the said date solely on the basis of his being treated as a Scheduled Caste candidate may if so advised be withdrawn by the Competent Authority. It is axiomatic that the respondentV.K. Mahanudeven shall not be entitled to claim any benefit in the future as a Scheduled Caste candidate but no benefit admissible to him as an OBC candidate shall be denied. Parties are directed to bear their own costs.”

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10 The Supreme Court very recently by another judgment

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Assistant G.M. And District Authority, Syndicate Bank (Supra), again protected the services by referring again to the judgment of Shalini (Supra) and earlier Supreme Court judgments, while granting the protection on similar line, recorded as under :

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“....... Insofar as the instant aspect of the matter is concerned, it is essential to point out, that a similar issue came to be examined by this Court in Shalini vs. New English High School Association and ors., (Civil Appeal No.10997 of 2013 @ SLP © No.2680 of 2010 decided on 12.12.2013).

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In the background of the conclusion drawn by this Court in Shalini's case, we find that the operative part of the order contained in the impugned order of the High Court dated 27.09.2005 calls for no interference. Our view is based on the fact, that herein also the respondent's appointment ( as in Shalini's case), had become final on 21.03.1985/18,.11.1985 i.e. well before 28.11.2000.

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For the reasons recorded hereinabove, the instant appeal is dismissed.”

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11 The learned counsel appearing for the Respondent contended that those judgments cannot be made applicable to each and every caste claim matter. There were confusion and/or doubts, the Supreme Court as well as the High Court, extended the protections as recorded above. Therefore, in every such other caste

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matter, such reliefs cannot be granted. Those cases are distinguishable on facts and as relating to and referred to `Halba Koshti' caste and/or “ThakurScheduled Tribe”, not of “KoliMahadeo”, “KoliHindu” (SBC). The protection of continuity of service/employment therefore cannot be granted in the present cases of “Mahadeo Koli”/”Koli”/”M. Koli” merely because it fall within the ambit of “Special Backward class” (SBC) in Maharashtra. But unable to distinguish the Supreme Court's orders granting protection even after the invalidation of caste by the Scrutiny Committee or otherwise except different caste involvements.

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12 It is relevant to note that there are cases where the Supreme Court as well as the High Courts granted the similar protections to the persons like the Petitioners who belong to different castes than “Halba”, in view of Constitution Bench judgment in Milind (Supra). The other Supreme Court judgments are Dattu Namdeo Thakur vs. State of Maharashtra and ors⁹ ,, as referred in A. P. Ramtekkar vs. State of Maharshtra¹⁰ , which is confirmed by a Three Judge Bench of the Supreme Court, apart from Vijaya (Supra). The

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9 2012 (3) Mh. L.J. (SC) 179

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10 2013 (2) Mh. L.J. 415

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Supreme Court, (i) Kavita (Supra), (ii) Shalini (Supra), (iii) R. Unnikrishnan (Supra), (iv) Assistant G. M. & District Authority, Syndicate Bank (supra) (v) Jyotsna (Supra) are recent cases, where the protections have been granted in such matters specially who are appointed and confirmed prior to 28.11.2000.

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13 However, we are restricting to the date of Constitution Bench Judgment in State of Maharashtra vs. Milind & Ors.¹¹ i.e. 28.11.2000 as followed in other matters, even by the Supreme Court. The Petitioners, in these matters, also submitted to restrict the date as 28.11.2000.

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14 The question, therefore, before this Bench is again to follow the Constitution Bench Judgment in Milind and other judgments of Supreme Court distinguishing the judgments supporting the opposite views, where no reliefs were granted. The principles also read and mean not to deny justice to those who are/were in service for long, when there is/was no case of fraud and/or mis representation by the Petitioners to claim the benefits, based upon the

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11 (2001) 1 SCC 4

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validly obtained certificates. To discontinue such persons from service is another issue which just cannot be overlooked while granting/extending the protections. However, there cannot be any doubt that only the eligible persons are entitled for the privileges and/or protection and not by all. To grant such protection to non eligible persons is nothing but injustice to all others. However, in view of above, consistent trend of Supreme Court, till the recent judgment dated 4/3/2014 (Jyotsna) (Supra) , as referred above, the submission that to overlook these recent judgments of Supreme Courts, merely because the caste involved are different is unacceptable. All are bound by the judgments and even the directions/orders issued by the Supreme Court of India.

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15 The Apex Court while dealing with the aspect of direction under Articles 141/142 of the Constitution of India has also considered the “doctrine of binding effect”, observed in Subhashchandra and Anr. v. Delhi Subordinate Services Selection Board and ors. ,¹² as under :

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“110 Should we consider Pushpa [S. Pushpa vs. Shivachamugavelu, (2005) SCC (L and S) 327 ] to be

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12 (2009) 15 SCC 548

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an obiter following the said decision is the question which arises herein. We think we should. The decision referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. …....”

¶199

16 The Apex Court while dealing with similar caste matter in Dayaram v. Sudhir Batham and others¹³ referring to Articles 141, 142 of the Constitution again observed as under :

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“15 In Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) 3 SCC 284, this Court held that : (SCC p.295, para 33):

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33 Article 142 is an important constitutional power granted to this Court to protect the citizens. In a given situation when laws are found to be inadequate for the purpose of grant of relief, the court can exercise its jurisdiction under Article 142 of the Constitution.”

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This Court reiterated that directions issued by this Court under Article 142 form the law of the land in the absence of any substantive law covering the field and such directions “fill the vaccum” until the legislature enacts substantive law. This Court has issued guidelines and directions in several cases for safeguarding, implementing and promoting the fundamental rights, in the absence of legislative enactments. By way of illustrations,w e may refer to Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244 (regulating inter country adoptions), Common Cause v. Union of India (1996) 1 SCC 753 (regulating collection, storage and supply of blood for blood transfusions) and M. C. Mehta v. State of T. N. (1996) 6 SCC 756 (enforcing prohibition on child labour).”.

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13(2012) 1 SCC 333

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(Emphasis added)

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17 The Apex Court again reiterated the scope and purpose of

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Article 142 including the orders and/or directions issued by the Supreme Court with an intent to ensure that rights of citizens are duly protected. This covers the constitutional power, functions/role of High Court under Articles 14, 226 and 227 of the Constitution of India.

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18 In Dayaram (Supra) , the case of “Dhobi” Scheduled Caste of Madhya Pradesh is involved. As an order of invalidation upheld by all, the matter reached to the Supreme Court of India. By the Judgment, referring to Article 14, 15, 16, 32, 46, 136, 141, 142, 226, 341, 342 and 366(25) most of the directions issued in Madhuri Patil Vs. Commissioner, Tribal Development¹⁴ , have been accepted as binding to all, treating it as nothing but for enforcement of fundamental rights in area with legislative vacuum. It is also held no judicial review would curtail the power of the High Court under Article 226 relating to the Caste certificates. With these directions, the Supreme Court has exercised the Judicial power to enforce the fundamental rights flowing

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14 (1994) 6 SCC 241

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from the Constitution of India, specifically in view of no statute expressly dealt with the subject at the relevant time. The directions so issued in Shalini (Supra) based upon the Madhuri (Supra) so far as the Maharashtra is concerned, further endorsed that it binds everyone. No question of any interpretation and/or giving any justification not to follow the directions/orders, given by the Constitution Bench and others.

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19 The Supreme Court itself in various matters including (i) Milind (Supra), (ii) Dattu (Supra), (iii) Anand (Supra), (iv) Shalini (Supra), (v) R. Unnikrishnan (Supra) and (vi) Assistant G.M. & District Authority, Syndicate Bank (Supra), (v) Jyotsna (Supra) consistently followed the same directions, while deciding the caste issue and extended the protections. In Dayaram (Supra) the caste involved is “Dhobi” of Madhya Pradesh”. In Dattu (Supra), the caste involved is of “Thakur” of Maharashtra. In other matters, R. Unnikrishnan (Supra) the caste involved is “Thandan” of Kerala. In Assistant G.M. & District Authority, Syndicate Bank (Supra), the caste involved is “Halba” of Maharashtra. Therefore to say that the directions so issued in Milind (Supra) need not be followed for other

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caste, except “HalbaKoshit”, is unacceptable basically when the Supreme Court, till this date, consistently has been following the same and granting the protections.

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20 In Vijaya (Supra), the Division Bench of this Court dealt with the Full Bench Judgment of this Court of Ganesh Kahale Vs. State of Maharashtra and others¹⁵ in paragraph Nos. 11 to 15, as it is again reiterated that the directions issued by the Supreme Court and basically by the Constitution Bench need to be followed by all. No question of giving any interpretation to the same, when the Supreme Court consistently, by following the same, has been granting the relief and protecting the services of other caste.

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21 In Pradip Gajanan Koli & Ors. Vs. State of Maharashtra & Ors.¹⁶ (decided on 22112013) Division Bench of this Court, in our view, did not consider the consistency of the above referred Judgments and particularly and obviously had no occasion to consider the latest Supreme Court Judgments rendered after the Division Bench Judgment, granting the protection to similarly situated person who

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15 2009(2) Mh.L.J.788 16 2014(1) Bom. C.R. 175

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belongs to the different class/tribe.

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22 The Supreme Court in Dattu (Supra), in case of Thakur caste granted the protection on certain conditions. The same is followed in A.P. Ramtekkar (Supra) . The Apex Court recently on 4 March 2014 in Jyotsna (Supra), again in the matter of Thakur caste, protected the employment but not permitted to claim benefit. The Apex Court specifically read and referred R. Vishwanath Pillai vs. State of Kerala & Ors.¹⁷ and Bank of India & Anr. Vs. Avinash D. Mandivikar & ors.¹⁸ again and based upon Dattu (Supra) protected even the educational qualifications attained by the Petitioner and thereby rejected the contention of other side that once the caste claim certificate is cancelled, that should have resulted into loss of job and long years of service, should not be the reason to protect such persons' services and recorded as under:

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“(4) On the other hand, we have a judgment of another bench of this Court in the case of Dattu S/o Namdev Thakur Vs. State of Maharashtra reported in 2012 (1) SCC 549 wherein this Court had passed an order that in view of the cancellation of the caste certificate, the petitioner will not be entitled to take any future advantages of reservation for future purposes, the

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17 2004(2) SCC 105

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18 2005(7) SCC 690

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educational qualifications attained by the petitioner were not to be disturbed.

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(5) We record the statement of Ms. Desai learned counsel appearing for the respondent that the respondent will not claim any benefit as belonging to the 'Thakur' Scheduled Tribe in view of the cancellation of her claim as belonging to that particular community. The employment of the respondent in the petitioner organization will however not be disturbed.”

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23 We are again inclined to observe on fact situation of present cases that there is no question of treating “equals unequally” by not providing them same reliefs as provided above. Therefore, we are inclined to exercise the writ jurisdiction in favour of granting protection on certain conditions, on the basis of above binding judgments.

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24 The Apex Court reiterated the power and position of Article 142 in the following words in J. Jayalalithaa and others v. State of Karnataka and ors¹⁹ :

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“32 …...The constitutional provision has been couched in a very wide compass that it prevents “clogging or obstruction of the stream of justice”. However, such powers are used in consonance with the statutory provisions. (See also Teri Oat Estates (P) Ltd. v. UT, Chandigarh, (2004) 2 SCC 130; Manish Goel v. Rohit

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19(2014) 2 SCC 401

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Goel, (2010) 4 SCC 393 and State of U.P. v. Sanjay Kumar, (2012) 8 SCC 537)”.

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25 The situation, therefore, in view of the consistent view

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taken by the Supreme Court whereby extension has been granted and as there was no specific policy and/or Act to deal with the situation like this at the relevant time and specially to grant and/or not to grant the protection, after invocation of such caste certificates after so many years and specifically when there is no case of fraud and/or misrepresentation made out and/or proved. The direction, therefore, so issued by the Supreme Court from time to time irrespective of caste and/or a particular caste, in our view, just cannot be overlooked. Though in some cases no such reliefs were granted, but those matters are distinct and distinguished in recent judgments and clear directions have been issued to grant protection subject to the terms and conditions so referred.

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26 It is relevant to note that even the Act and the Rules made thereunder itself specifically provide that the benefits secured on the basis of false caste certificate belonging to any of the Scheduled Tribe/Scheduled Castes denotified tribes, nomadic tribes, other

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backward classes of special category, secured admission in any educational institution and/or any appointment in the Government and/or any local Authority, only on cancellation of caste certificate by the Scrutiny Committee liable to be debarred from the concerned educational institution and any benefits enjoyed or deprived should be withdrawn forthwith. Therefore, the basic requirement is that there should be clear finding that benefits secured by such Applicants/candidates is on the basis of “false certificate”. The relevant observation made in Shalini (Supra) in this regard is as under:

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“In essence, the Section cancels with preemptive effect any benefit that may have been derived by a person based on a false caste certificate. Whilst “Caste Certificate” has been defined in Section 2(a) of the 2000 Act, “False Caste Certificate” has not been dealt with in the Definitions clause. There is always an element of deceitfulness, in order to derive unfair or undeserved benefits whenever a false statement or representation or stand is adopted by the person concerned. An innocent statement which later transpires to be incorrect may be seen as false in general sense would normally not attract punitive or detrimental consequences on the person making it, as it is one made by error. An untruth coupled with a dishonest intent however requires legal retribution.”

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Maharashtra/Respondent/employer tried to distinguish the law laid

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27 The learned counsel appearing for the State of

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down by the Supreme Court including the Constitution Bench by adverting to the respective caste/tribe, but unable to justify the time period and/or service which they have entered into and/or the education which they have completed, based upon the caste certificate which came to be invalidated by the respective Scrutiny Committee after so many years. The submission of learned counsel appearing for the Respondent/State, based upon Memorandum dated 10.08.2010 as it is pertaining to Scheduled Tribe is also unacceptable. The particular caste is not the issue in these matters as most of the Petitioners belong to Koli (SBC) and Writ Petition Nos. 3014/14 and 9540/2013 (Koshti (SBC).

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28 The following is the chart which shows the respective Petitioners joining of service, caste, the continuity of service and interim protection granted by the Court, including termination of

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services.

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Sr. No.	Writ Petition No.	Name of the Petitioner	Working Since	Respondent No.	Caste now claimed	Interim protection granted.
1	WP/3014/20 04	R.S. Dafade	16.3.1998	WITH RESPONDEN T NO. 2	KOSHTI, SBC.	Interim order is in force
2	WP/7973/20 13	D.C. Vasolkar	10.5.2000	WITH RESPONDEN T NO. 2	KOLI, SBC.	Interim order is in force

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3	WP/7974/20 13	S.H. Beske	10. 5.2000	WITH RESPONDEN T NO. 2	KOLI, SBC.	Interim order is in force
4	WP/7975/20 13	K.T. Shinde	10. 5.2000	WITH RESPONDEN T NO. 2	KOLI, SBC.	Interim order is in force
5	WP/10286/2 013	Ajit.B.Koli	10. 5.2000	WITH RESPONDEN T NO. 2	KOLI, SBC.	Interim order is in force
6	WP/1702/20 13	P.K. Wankhede	12.1.1997	WITH RESPONDEN T NO. 2	KOLI, SBC.	Interim order is in force
7	WP/3187/20 13	P.M. Shirsat	1999	WITH RESPONDEN T NO. 3	KOLI, SBC.	Interim order is in force
8	WP/10569/2 013	S.W. Dhumal	9.3.2000	WITH RESPONDEN T NO. 3	KOLI, SBC.	Interim order is in force
9	WP/8104/20 13	S.B. Bhurkud	24.1.1986	WITH RESPONDEN T NO. 3	KOLI, SBC.	Interim order is in force
10	WP/2120/20 13	U.P. Chinchay	4.12.1995	WITH RESPONDEN T NO. 3	KOLI, SBC.	Interim order is in force
11	WP/7976/20 13	S.B. Patil	3.7.1997	WITH RESPONDEN T NO. 3	KOLI, SBC.	Interim order is in force
12	WP/8787/20 13	R.L. Kurunde	10.5.2000	WITH RESPONDEN T NO. 3	KOLI, SBC.	Interim order is in force
13	WP/2043/20 14	A.V. Bidkar	1988	WITH RESPONDEN T NO. 3	KOLI, SBC.	Interim order is in force
14	WP/1198/20 14	S. P. Patil	25.6.1998	WITH RESPONDEN T NO.2	KOLI, SBC.	Interim order is in force
15	WP/9540/20 13	Anil Parate	23.9. 1996	WITH RESPONDEN T NO.3	KOSHTI, SBC	Interim order is in force
16	WP/11154/2 011	A.A. Patil	25.6.1998	WITH RESPONDEN T NO.3.	KOLI, SBC	Interim order is in force.

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29 It is relevant to note that Articles 15(4) and 16(1) and (4) apart from Articles 341 and 342 of Constitution of India which deals with various aspects of “Scheduled Castes” and “Scheduled Tribes” and “Backward class (BC). Article 15 is silent with regard to the words “Backward class” of a citizen. The same is mentioned in Article 16 of the Constitution of India. The grant of protection and/or reservation by the respective States and/or Union Territories again is a matter which revolve around these Articles. The notified castes/tribes and/or backward classes are entitled for reservation and/or protection in service and/or in the education field. Therefore, it is necessary to consider that in education and/or even in service, this peculiar reservations are part and parcel of every year admission and/or service/employment. The socioeconomic and/or enlarged concept of “backwardness”, social and/or financial, all are again required to be considered by keeping in mind the constitutional provisions.

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30 We have also recently in Madhuri Nitin Jadhav v. State of Maharashtra and ors.²⁰ ,(Decided on 26/02/2014) along with

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20 Writ Petition No. 7343 of 2013, dated 26 February 2014.

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connected matters, reiterated this issue of fraud in the following words :

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“48 All the parties including Authorities are required to follow the provisions of the Act and the Rules made thereunder apart from the principle of natural justice as elaborated and discussed in Anand (Supra) and Shilpa (Supra).

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49 The caste certificates and/or orders validating the caste/tribe, based upon the procedure as followed prior to the Act are also required to be considered by the Authorities, unless case of fraud and/or misrepresentation is made out. Those certificates, therefore, cannot be overlooked while passing the order for or against in the matters relating to the caste/tribe.

¶267

50 ….

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51 As basic purpose is to give benefits/privileges to the declared scheduled Tribe/caste in the State and/or in the area as per the existing provisions of the Constitution Orders and also for the reason that merely because claimant/Applicant shifted and/or migrated in other part of Maharashtra, he does not cease to be a class and/or Scheduled Tribe and a person belongs to the community. (Palghat (Supra), Milind (Supra) and Unnikrishnan (Supra). The Scrutiny Committee therefore required to consider the whole material available on record, oral as well as documentary, judiciously, fairly and with unbiased and unprejudiced mind.

¶269

52 The affinity test is very important element. (Anand) (Supra) and Shilpa (Supra) and so also Vigilance Cell Report and/or inquiry (Dayaram Vs. Sudhiram Batham) and (Madhuri Patil) (Supra). But that is not the sole criteria either to grant and/or refuse caste claim/benefits.......

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53 …. 54 ….

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55 Therefore, all these elements are necessary to be tested and considered by the Scrutiny Committee before passing any order for and/or against validating the certificate and/or grant of certificates on merits.”

¶274

31 The learned counsel appearing for the Respondent/State

¶275

has made strong reliance on certain judgments, including R. Vishwanath Pillai (Supra) . In that case, the Supreme Court has ultimately granted protection, by following and distinguishing Milind (Supra). The Apex Court in Yogesh Ramchandra Naikwadi Vs. State of Maharashtra & Ors. 21; Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar & Ors22, while accepting the Scrutiny Committee's finding invalidating the claim of tribe, but granted the protection to the employee's service and refused to disturb the appointment and further directed to treat the same as of a general category with further direction not permitting him to get any benefit in future.

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32 In Raiwad Manoj Kumar Vs. State of Maharashtra²³ the

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21 (2008) 5 SCC 652 22 (2008)9 SCC 54

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23 (2011) 9 SCC 798

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Apex Court also in “Mahadeo Koli” and “Koli” caste, relied upon the Judgment of Raju Vasave (Supra) and by accepting the principle of

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Article 142 of the Constitution of India observed as under:

¶283

“6. ….......Invoking our jurisdiction under Article 142 of the Constitution, we order that the initial appointment of the appellant in the service of NABARD will not be disturbed, but the appellant will not be granted any benefit as a member of the Scheduled Tribe including any promotional benefit and promotional benefit, if any, granted to the appellant as a member of the Scheduled Tribe shall be cancelled. We make it clear that the relief extended is not intended to be a precedent and shall not be relied upon to grant similar relief.

¶284

33 The point is there is no bar if such protection is extended to such SBC/OBC caste.

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34 Therefore, we are inclined to observe that in a case where there is no question of fraud and/or misrepresentation, based on each facts the jurisdiction under Article 226 of the Constitution of India read with Articles 14, 15, 16, 19, 21 and read with Articles 341 and 342 and 141 and 142 of Constitution of India and specially on the basis of Supreme Court judgments, need to be extended to protect the service of the Petitioners/employees/students who are in service for so many years and/or completed the education, based upon the

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certificates ”Mahadeo Koli”/ “Koli M.”/ “Koli”.

¶289

35 It is not the case that these Petitioners do not belong to any Special Backwards class (SBC). Now they are willing to give up their further challenge and accept their caste as declared and now also willing to give up their rights whatsoever, if based upon the caste which they had claimed benefits. They have made such statement accordingly as recorded in the Judgment. The candidates and/or employee, for various reasons, unable to prove the case and/or ultimately have accepted the decision given by the Scrutiny Committee. The service and/or education, therefore, in our view, cannot be taken away. This is also specially when there is no material and/or details to provide any lack of bonafide on the part of the candidates/employee/petitioners.

¶290

36 In Vijaya (Supra), we have noted this aspect in the following words:

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“Articles 142 and 226 of Constitution of India – complete justice

¶292

“53 The power of Supreme Court and High Court of judicial review is to issue such directions/orders against any person including any authority or any Government

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to enforce the legal and the fundamental rights and for “any other purpose” to do complete justice. Therefore, it is the duty of a Court to ensure enforcement of fundamental and legal rights, if curtailed and/or abridged by any one by any act.

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Enforcement of Fundamental and Legal Rights.

¶297

54 The poor or financially weak litigants cannot be denied these reliefs/protection only because of their inability to approach the higher courts including the Supreme Court. The directive principles of State Policy are always important to consider and to interpret fundamental rights and the statutory rights of a citizen. We have to broaden our approach while dealing with the fundamental rights of similarly situated individual/class by diluting the technicality of delay and res judicata, specially in view of the binding directions/orders of the Supreme Court. There is no question of disrespect to the opinions already given by the learned Judges, but definitely the question and obligations to respect the binding Supreme Court judgments/orders.”

¶298

37 We are inclined to pass the following orders in view of

¶299

above Supreme Court Judgments and also for the reasons given in Vijaya (supra) on following issues:

¶300

“The Constitution Bench granted protection/but not further caste privileges”, “The Courts granted protection/not granted protection”, “Facts based decision”, “The Full Bench interpreted the operative part of the Constitution Bench decision (Milind)(Supra), “The reinforcement and enforcement of Supreme Court Constitutional

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Bench decision”, “Facts do not change because they were ignored”, “Similar Facts Similar Reliefs”, “The Caste invalidation no Reservation/Protection to continue”, “Reasoned Supreme Court's JudgmentSecure all”, “No case for reference to a Larger Bench”, “The requirement of a caste certificate”, “The protection to continue except caste privileges”, “Such Employee/Student cannot be treated as belonging to open category even for any other purpose”, “No reservation privilege to other family members” “The delay no reason to refuse equal protection and relief”, “The cases of fraud and misrepresentation need different treatment”, “The reinstatement without Scheduled Caste benefits and no backwages”, “Now difficult to discriminate similarly situated persons”.

¶304

38 In view of above Supreme Court judgments, on facts we are inclined to exercise the Judicial discretion in favour of granting protection rather than taking it away, on conditions as expressed by the Supreme Court in (i) Kavita (Supra), (ii) Shalini (Supra), (iii) R. Unnikrishnan (Supra), (iv) Assistant G. M. & District Authority, Syndicate Bank (Supra) and (v) Jyotsna (Supra) . The other Judgments of the Supreme Court referred above are on similar lines, we have no

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option but to follow it.

¶308

39 In the result, the following Order:

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O R D E R

¶310

a) The Petitioners/candidates/employees are entitled for protection in service with continuity of service. b) The Petitioners would not be entitled to any caste benefits on the basis of earlier caste/tribe which

¶311

they had claimed. However, the Petitioners/candidates are entitled for the benefits, if any, based upon the concluded/existing caste/ tribe in question (Koli SBC) (Koshti SBC).

¶312

c) The benefits, if any, granted after 28.11.2000 being belonging to “Mahadeo Koli”, “Halba” (ST), the Respondents/employer/management are at liberty to withdraw the same.

¶313

d) The Petitioners/employees/candidates to submit the present caste certificates to complete the formality of service record as soon as possible and

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preferably within six months.

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e) All the parties to cooperate accordingly.

¶318