The Supreme Court dismissed the appeal of a provisional Chemical Examiner terminated for not belonging to the claimed Scheduled Tribe. The Court held that the appointment was provisional and subject to caste verification, thus not final, distinguishing precedents protecting confirmed appointments.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[2016] 3 S.C.R. 773
B. H. KHAWAS
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V.
UNION OF !NOIA & OTHERS
(Civil Appeal No. 9182of2012)
AUGUST 12, 2016
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[ADARSH KUMAR GOEL AND A.M. KHANWILKAR, JJ.)
Service Lm1' - Termination of provisional appoinlment prior lo confirmation - Validily - Appellant provisionally appointed against post reserved for Scheduled Tribe, subject to verification of caste cert!fica/e - Caste Cert!flcate Scruliny Committee opined /hat appellant did not belong to "Halba" Scheduled Tribe as claimed by him, but belonged lo cas/e "Koshti" which was not a Scheduled Tribe - Accordingly, department terminated the appointment of appellant on ground /hat he did no/ belong lo Scheduled Tribe - Held: Appointment of appellant was provisional and subject to verification of his caste claim of Halba, through proper channel - Appoinlment in terms of lhe appointment let/er, was to a temporary {'Ost and was so treated by the department and thus was not final - Nothing brought on record by the appellant to show that his post 1vas treated as c011firmed by the department before issuance of termination order -High Court right in restoring the termination orde1:
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Dismissing the appeal, the Court
HELD: 1.1 The moot question in the present case is: whether the subject appointment of the appellant to the post of "Chemical Examiner" in Customs and Central Excise Department has in fact become final? Unlike the confirmed appointment of the appellant to the post of Assistant Chemist, in the Geological Survey of India, his appointment to the post of "Chemical Examiner" in the Customs and Central Excise Department was provisional and subject to verification of his caste claim of "Halba". It was not treated as final by the Department till the impugned termination order was issued. Nothing has been brought on record by the appellant to show that his appointment on that post was in fact treated as confirmed
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[2016] 3 S.C.R ..
SUPREME COURT REPORTS
A by the con<;.erned Department, before issuing the impugned order of termination. [Para 9) [780-D-F)
1.3 Appellant not entitled for any relief on the finding that his appointment as Chemical Examiner in the Customs and Central Excise Department had not attained finality. The Scrutiny G Committee had. unambiguously held that the appellant does n,ot belo.Pg to ."Halba" community, a notified Scheduled Tribe in Maharashtra. High Court was right in allowing the writ petition filed by the Department restoring the termination order. (Para 13) (782-E, GJ
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B.H.KHAWAS v. UNION OF INDIA & OTHERS
775
| Case | LawReference | A | |
|---|---|---|---|
| 2000 (S)Suppl.SCR6S | distinguished | Paras | |
| 2008 (2)SCR1096 | referred to | Paras | |
| 2012 (7)SCR2Sl | held inapplica hie | Para6 | |
| 2013 (12 )SCR807 | held inapplicable | Para6 | B |
| 2014(1)SCR350 | held inapplicable | Para6 |
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9182 of 2012.
From the Judgment and Order dated 08.02.2012 of the High Court of Judicature at Bombay in the Writ Petition No. 7101 of2005.
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Rakesh K. Khanna, Sr. Adv., Aseem Mehrotra, Mrs. (Dr.) Rashmi Khanna, Ms. Shefali Jain, Ms. Anandita, Ms. Preeja Nair, Rajesh Prasad Singh, Ad vs. for the Appellants.
Yashank Adhiyaru, Sr. Adv., Raj iv Nanda, Ms. Rekha Pandey, B. K. Prasad, Advs. for the Respondents.
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The Judgment of the Cou11 was delivered by
A.M. KHANWILKAR, J. 1. This appeal .challenges the judgment of the Division Bench of the High Court of Judicature at Bombay in Writ Petition No. 7101 of 1005 dated B'" February 2012. The High Court reversed the decision of the Central Administrative Tribunal, Bombay Bench at Mumbai in OA No. 419 of2004, dated 3rct March, 2005. The Tribunal had allowed the original application filed by the appellant whilst setting aside the termination order dated 81 " June, 2004 and instead had directed the respondents to re-instate the appellant in service.
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"(vii). In case you belong to Scheduled Caste/Tribe, the appointment is provisional and is subject to verification of Scheduled Caste/Tribe certificate through proper channels
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[2016) 3 S.C.R.
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and if on verification, your claim to belong to Scheduled Caste or Scheduled Tribe, as the case may be, is found to be false. vour services will be terminated forthwith without assigning anv reason and without prejudice to such .fiirther action that may be taken under the lndian penal Code for production of false cert(ficate."
(emphasis supplied)
B.H.KHAWAS v. UNION OF INDIA & OTHERS
777
[A.M. KHANWILKAR, J.]
B
commended to the High Court, as a result of which the decision of the Scrutiny Committee was quashed and set aside and the matter was remanded to the Scrutiny Committee for redetermination of the claim afresh. After fresh enquiry in terms of the High Court decision, vide order dated I O•h February, 2003, the Scrutiny Committee finally opined as follows:-
" After considering all the documents and.facts & in exercise of the powers vested vide Government Resolution, Corrigendum and Maharashtra Act quoted in the preamble at Sr. No. I to 3 above. the Caste Scrutiny Committee has come to the conclusion that Shri Bhojraj Haribahu Khawas does not belong to the Halba. Scheduled Tribe and as such his claim towards the same is held invalid. And hLv caste Certificate of his belonging to "Halba ", Scheduled Tribe granted by the Executive Magistrate, Nagpur Vide R.C. No.181/MRC-81181/ 82, dated 14.9.81 is hereby cancelled."
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1 r2001) 1 sec .1
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SUPREME COURT REPORTS
[2016] 3 S,C.R.
"On the whole, Jlle think that applicant has to he given similar benefit as has been given by the Hon 'hie High Court of Bombay in a number of cases. We direct the respondems to D reinstate the applicant as his services were terminated only on the limited ground of his not belonging to' Halba SIT Community. The order dated 8.6.2004 is quashed and set aside. We, however. make it clear that neither the applicant nor his children ll'ill claim any fitrther benefit available to a SIT candidate and they shall he treated as belonging to Open E Category It is also clarified that the respondents are free to take any action against the applicant regarding his service for any other reasons than his not belonging to Ha/ha SIT community. "
Against this decision, the Department filed a writ petition before F the High t:ourt, being Writ Petition No. 7101 of2005. The Division Bench of the Bombay High Court, relying on the decision of three Judges' Bench of this Collli in the case of Union of India vis. Dattatray s/o Namdco Mendhekar and Ors2, allowed the writ petition and restored the termination order dated 8'h June, 2004. The appellant has, therefore, G approached this Court by way of present appeal. 6. The principal argument of the appellaM is that the decision of the Constitution Bench in Milind's case itself protects all appointments which have become final. The decision of the three Judges' Bench relied by
779
B.H.KHAWAS v. UNION OF INDIA & OTHERS [A.M. KHANWILKAR, J.]
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the High Court in the impugned judgment has been considered and explained in the subsequent decisions in the case ofKavita Solunke v/ s State of Maharashtra and Ors.3, Shalini v/s New English High School Association and Others' and in R. Unnikrishnan and Another v/s V.K. Kahanudevan and Others5 • According to the appellant, following the consistent view of this Court, the appointment, even in the case of the appellant, should be protected. For, the claim of the appellant was not a false claim, but a bona fide claim founded on the entries in the school record and the certificate issued by the Executive Magistrate. It is not a case of false or dishonest claim set up by the appellant; or for that matter fa~rication of records or reliance placed on fraudulent caste certificate.
"38. Respondent 1 joined (he medical course for the year 1985-86. Almost 15 years have passed by, now. We are told he has already completed the course and maybe he is practicing as a doctor. In this view and at this length of time it is for nobody s benefit to annual his admission. Huge amount is spent on each candidate for completion of medical course. No doubt, one Scheduled Tribe candidate was deprived of joining medical course by the admission given to Respondent 1. If any action is taken against Respondent 1, it may lead to d~priving the service of a doctor to the society on whom public money has already been spent. In these
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780
SUPREME COURT REPORTS
[20 I 6) 3 S.C.R.
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(emphasis supplied)
The last sentence in this paragraph is crucial. The Court made it clear that the admissions and appointments that have "become final" shall remain unaffected, by its judgment.
D 9. The moot question in the present case is: whether the subject appointment of the appellant to the post of "Chemical Examiner" in Customs and Central Excise Department has in fact become final? Unlike the appointment of the appellant to the post of Assistant Chemist, in the Geological Survey oflndia, was confirmed in terms ofNotification No. I 225 B/ A-31013/ Asstt. Chemist/95-19C, dated 5.5.1995 with effect ·E from 151 h May, 1988, his appointment to the post of"Chemical Examiner" in the Customs and Central Excise Department with which we are concerned was provisional and subject to verification of his caste claim of"Halba". It was nottreated as final by the Department till the impugned termination order was issued. Nothing has been brought to our notice by F the appellant to show that his appointment on that post was in fact treated · as confirmed by the concerned Department, before issuing the impugned order oftennination. Had it been a case of termination from the post of "Assistant Chemist", on which the appellant was confirmed by the concerned Department, the argument canvassed by the appellant would have assumed some significance and could be tested with reference to G the recent decisions of this Court pressed into service by the appellant.
B.H.KHAWAS v. UNION OF INDIA & OTHERS
781
[A.M. KHANWILKAR, J.]
appellant was against the post reserved for Scheduled Tribes, it was provisional and subject to verification of his caste certificate through a proper channel. The caste certificate of the appellant was already under scrutiny in terms of reference made by the Controller General, of the Indian Bureau of Mines, Nagpur, where the appellant was appointed in similar manner on the post reserved for Scheduled Tribes. The mere fact that the Scrutiny Committee was not able to complete the enquiry on the question of validity of caste certificate, before the appellant resigned from the services of the Indian Bureau of Mines and joined another Department of Government of India, that would not extricate the appellant from the requirement of verification of his caste claim of "Halba", a notified Scheduled Tribe in Maharashtra. For, the appointment of the appellant as Chemical Examiner Grade-I in Customs and Central Excise Department in terms of Appointment Letter Dated I 61 h June, 1995 (Annexure Pl 0), was to a temporary post, on provisional basis and subject to verification of his caste certificate through a proper channel. In such a case, the principle expounded in the decisions relied by the appellant will have no application.
I I.In the case of Kavita Solunke (supra), it was not in dispute that the appellant had satisfactorily completed the period of probation and was confirmed in service as an Assistant Teacher in due course. Enquiry in respect of her caste claim was insisted upon "after a decade" from her initial appointment, obviously after the decision in Milind's case. The Court held that the appointment of the appellant having attained finality could not be disturbed. Indeed, the Court noted that there was nothing to indicate that the caste certificate of the appellant was false, fabricated or manipulated by concealment or otherwise. That observation is in the context of the matter in issue before the Court, for passing an order in equity. Even in the next case, in Shalini (supra) which follo,vs the dictum in Kavita's case, it is seen that the appointment of the appellant as an Assistant Teacher had attained finality as she was in service since 61 h November, 1981 and confirmed w.e.f. 1" January, 1984, for which the Court held that the same should not be disturbed. Similarly, in the case of Unnikrishnan and Another (supra), the Court was dealing with the matter where the ca~te claim was already made subject matter of challenge before the Court and was upheld. It was a case where a judicial order passed inter partes had become final on that issue. In that case, the caste claim enquiry was insisted because of the subsequent Presidential Order excluding the concerned caste from the entry notified
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782
SUPREME COURT REPORTS
[2016] 3 S.C.R.
A under notification dated 31"August2007. The Court, inter alia, opined that it was not open to reconsider the settled judicial pronouncement on the caste claim inter partes.
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Divya Pandey
Appeal dismissed.
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2 issues framed by the court
Whether the provisional appointment of the appellant to the post of Chemical Examiner became final prior to termination?
Whether the protection in State of Maharashtra v. Milind applies to appointments subject to verification of caste certificate?
Colour shows how this judgement treated each authority
State of Maharashtra vs. Milind and OthersDistinguished¶29
State of Maharashtra vs. Milind and Others (2001) 1 SCC 4: 2000 (5) Suppl. SCR 65 · Who else cites this
Kavita Solunke v. State of Maharashtra and Ors.Distinguished¶31
Kavita Solunke v. State of Maharashtra and Ors. (2012) 8 SCC 430 : 2012 (7) SCR 251 · Who else cites this
Shalini v. New English High School Association and OthersDistinguished¶31
Shalini v. New English High School Association and Others (2013) 16 SCC 526 : 2013 (12) SCR 807 · Who else cites this
R. Unnikrishnan and Another v. V.K. Kahanudevan and OthersDistinguished¶31
R. Unnikrishnan and Another v. V.K. Kahanudevan and Others (2014) 4 SCC 434 : 2014 (1) SCR 350 · Who else cites this
Union of India v. Dattatray s/o Namdeo Mendhekar & Ors.Referred¶33
Union of India v. Dattatray s/o Namdeo Mendhekar & Ors. (2008) 4 SCC 612 : 2008 (2) SCR 1096 · Who else cites this
B. H. Khawas
Union of India
Others
Adar Kumar Goel
A.M. Khanwilkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
