Bombay High Court
Apoorva D/O Vinay Nichale vs Divisional Caste Certificate Scrutiny ... on 27 July, 2010
Author: S.A. Bobde
Bench: S.A. Bobde, A. B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : N A G P U R.
WRIT PETITION No. 1504 OF 2010
Apoorva d/o Vinay Nichale,
aged 20 years, Occupation : Student,
r/o c/o Avinash Bhuyar,
SBI Colony, Bhagwan Nagar,
Nagpur. ig ... PETITIONER.
-VERSUS -
1. Divisional Caste Certificate Scrutiny Committee No.1,
Mount Road, Sadar, Nagpur.
2. The Director,
Medican Education & Research,
Govt. of Maharashtra, CET Cell,
Opp.: Govt. Dental College Building,
St. George Hospital Compound,
Near Chhatrapati Shivaji Terminus (CST),
Mumbai- 400 001.
3. The Dean,
Govt. Medical College & Hospital, Nagpur.
4. The Registrar,
Maharashtra University of Health Sciences,
Mhasrul, Nashik. ... RESPONDENTS.
....
Mr. R.S. Parsodkar & A.M. Balpande Advocates for the Petitioner.
Mr. A.G. Mujumdar, A.G.P., for Respondents 1 to 3.
Mr. A.L. Deshpande Advocate for Respondent no.4.
Mr. Sunil V. Manohar Amicus curiae.
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CORAM : S.A. BOBDE &A.B. CHAUDHARI, JJ.
DATED : 27 th JULY, 2010.
ORAL JUDGMENT (Per S.A. Bobde, J.) :
Leave to amend. Amendment be carried out forthwith.
Amended slip be served on the respondents.
2. Rule. Rule returnable forthwith. Heard finally with the consent of learned counsel for parties.
3. The petitioner has challenged the order dated 22.1.2010 passed by the Caste Scrutiny Committee invalidating the caste certificate to the effect that she belongs to Kanjar Bhat- Nomadic Tribe. The main grievance of the petitioner is that the caste certificate to the effect that she belongs to Kanjar Bhat-Nomadic Tribe ought not to have been invalidated in view of the undisputed fact that the certificate of petitioner's sister to the same effect has been validated by the Caste Scrutiny committee. According to learned counsel the sister is blood related from the paternal side and there was no reason for invalidating the caste certificate of the petitioner. .
The learned counsel relied on the Govt. Resolution dated 22.8.2007 issued by the Principal Secretary, Social Welfare Department, Govt. of Maharashtra, which provides that where during the course of enquiry or scrutiny of a caste claim it is seen that the caste claim of a blood relative, ::: Downloaded on - 09/06/2013 16:12:33 ::: 3 such as father, son, daughter, brother and sister has been scrutinized and accepted, the caste claim of the applicant should be allowed without insisting on any other proof.
4. We have considered the matter and we are of the view that the petitioner's caste claim that she belongs to Kanjar Bhat- Nomadic Tribe ought to have been accepted by the Committee merely on the basis that identical caste claim of her sister that she belongs to Kanjar Bhat has been allowed by the Committee, even apart from the Government Resolution.
We are of the opinion that the guidelines provided by the said Govt.
Resolution are sound and based on sound principles. It would indeed be chaotic otherwise. If the relationship by blood is established or not doubted, and one such relative has been confirmed as belonging to a particular caste, there is no reason why public time or money should be spent in the committee testing the same evidence and making the same conclusion unless of course the Committee finds on the evidence that the validity of the certificate of such relation has been obtained by fraud.
5. The Division Bench of this Court in Mahesh Pralhadrao Lad v. State of Maharashtra - 2009(2) Mh.L.J. 90 has observed that in the absence of any power under the Rules conferred on the Government to issue a Govt. Resolution, the Govt. Resolution cannot be said to be binding on the committee nor the committee in exercise of its jurisdiction is bound ::: Downloaded on - 09/06/2013 16:12:33 ::: 4 to follow the same. The Division Bench further observed that the Government Resolution may be considered in the context of Rule 12 of the Rules and if the committee while exercising jurisdiction is satisfied that the caste validity certificate issued to a blood relative is genuine then instead of calling the Vigilance Cell Report it may proceed to issue the caste validity certificate. We are in respectful agreement with the view taken by the Division Bench. We would further add that the committee would be entitled to refuse to follow the caste validity certificate granted to a blood relative if it appears to the committee that the earlier caste certificate has been scrutinized by a Committee without jurisdiction or the validity order is obtained by committing fraud on the Committee.
6. The Supreme Court has laid down this position in the judgment in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar & ors. - (2008) 9 SCC 54. Para 30 to 38 of the said judgment reads as follows :
"30. The principle of res judicata is undoubtedly a salutary principle. Even a wrong decision would attract the principle of res judicata. The said principle, however, amongst others, has some exceptions e.g. when a judgment is passed without jurisdiction, when the matter involves a pure question of law or when the judgment has been obtained by committing ::: Downloaded on - 09/06/2013 16:12:33 ::: 5 fraud on the court.
31. In Williams v. Lourdusamy this Court stated the law, thus : (SCC p.650, para 11) "11. The principles of res judicata although provide for a salutary principle that no person shall be harassed again and again, have its own limitations. In OS No.402 of 1987, Respondent no.2 was not impleaded as a party.
In his absence therefore the issue as to whether respondent 2 had entered into an oral agreement of sale or not could not have been adjudicated upon. The said court had no jurisdiction in that behalf. If that was decided in the said suit, the findings would have been nullities."
32. Two legal principles which would govern a case of this nature are :
(i) A decision rendered without jurisdiction being a nullity, the principle of res judicata shall not apply.
(ii) If a fraud has been committed on the court, no benefit therefrom can be claimed on the basis thereof or otherwise.
33. In support of the first principle, we may at the ::: Downloaded on - 09/06/2013 16:12:33 ::: 6 outset refer to Chief Justice of A.P. v. L.V.A. Dixitulu wherein this Court, while discussing the effect of Section 11 CPC on a pure question of law or a decision given by a court without jurisdiction, opined : (SCC p. 42, para 24) "24.... Moreover, this is a pure question of law depending upon the interpretation of Article 371-D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case."
34. A three-Judge Bench of this Court in Ashok Leyland Ltd. v.
State of T.N. held : (SCC p. 44, para 118) "118. The principle of res judicata is a procedural provision. A jurisdictional question, if wrongly decided, would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like estoppel, waivers or res judicata. (See also Dwarka ::: Downloaded on - 09/06/2013 16:12:33 ::: 7 Prasad Agarwal v. B.D. Agarwal; Union of India v.
Pramod Gupta and National Institute of Technology v.
Niraj Kumar Singh).
35. So far as the second principle, noticed by us, is concerned, there is no dearth of authority. Fraud vitiates all solemn acts. When an order has been obtained by practising fraud on the court, it would be a nullity.
36. In Ganpatbhai Mahijibhai Solanki v. State of Gujarat this Court held:
"It is now a well-settled principle that fraud vitiates all solemn acts. If an order is obtained by reason of commission of fraud, even the principles of natural justice are not required to be complied with for setting aside the same."
It was further observed :
"In T. Vijendradas v. M. Subramanian this Court held: (SCC p. 766, paras 27-28) "27. .... When a fraud is practised on a court, the same is rendered a nullity. In a case of nullity, even the principles of natural justice are not required to be complied with. (Kendriya Vidyalaya Sangathan v. Ajay Kumar Das ::: Downloaded on - 09/06/2013 16:12:33 ::: 8 and A. Umarani v. Registrar, Coop. Socities).
28. Once it is held that by reason of commission of a fraud, a decree is rendered to be void rendering all subsequent proceedings taken pursuant thereto also nullity, in our opinion, it would be wholly inequitable to confer a benefit on a party who is a beneficiary thereunder."
37. In K.D. Sharam v. Steel Authority of India Ltd. this Court opined:
"Reference was also made to a recent decision of this Court in A.V. Papayya Sastry v. Government of A.P. Considering English and Indian cases, one of us (C.K. Thakkar, J.) stated : (SCC p. 231, para 22) `22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order- by the first court or by the final court- has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.' The Court defined fraud as an act of deliberate deception with the design of securing something by taking unfair advantage ::: Downloaded on - 09/06/2013 16:12:33 ::: 9 of another. In fraud one gains at the loss and cost of another.
Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fruad is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam."
7. We thus come to the conclusion that when during the course of enquiry the candidate submits a caste validity certificate granted earlier certifying that a blood relation of the candidate belongs to the same caste as that claimed by the applicant, the committee may grant such certificate without calling for Vigilance Cell Report. However, if the committee finds that the earlier caste certificate is tainted by fraud or is granted without jurisdiction, the Committee may refuse to follow and may refuse to grant certificate to the applicant before it.
8. Mr.Manohar, amicus curiae who assisted in the matter, submitted that the decision on the caste claim does not affect that person alone but has an impact on the future generation where the caste claim has been wrongly accepted or rejected. He, therefore, submitted that the committee must in all cases issue notice to the blood relatives who have wrongly or fraudulently obtained the caste certificate or obtained the certificate without jurisdiction in the committee to grant it and initiate proceedings to cancel that certificate. Referring to the decision in Indian Bank v. Satyam Fibres (India) Pvt. Ltd. - (1996) 5 SCC 550 where the ::: Downloaded on - 09/06/2013 16:12:33 ::: 10 Supreme Court while dealing with a case under Consumer Protection Act,1986 and the power of National Commission held that the Commission has inherent power to recall the judgment and order obtained by fraud.
The Supreme Court further observed vide para 20 of the aforesaid judgment thus :
" This plea could not have been legally ignored by the Commission which needs to be reminded that the authorities, be they constitutional, statutory or administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as fraud and justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said that fraud and deceit defend or excuse no man (Fraus et dolus neminin patrocinari debent)."
The position of law pointed out by the learned amicus curiae is undoubtedly correct but we are not called upon to decide whether the committee ought to have exercised such power in the present case.
9. In the present case, we find that the committee has disbelieved the petitioner's case that she belongs to Kanjar Bhat after calling the school leaving certificate of petitioner's father and noticing that ::: Downloaded on - 09/06/2013 16:12:33 ::: 11 the original caste written on it was `Thakur' and that was subsequently changed to Kanjar Bhat. The committee observed that the caste has been changed without complying with the procedure prescribed by Section 48(e) and 132(3) of Mumbai Primary Education Act. In fact, the caste has been changed on the basis of the affidavit. From the findings of the committee it appears that the committee has observed that the change of caste has been done illegally. Obviously, the committee which decided the caste claim of the petitioner's sister did not hold the same view, otherwise it would have refused to grant validity. In the circumstances, we are of the view that the committee which has expressed a doubt about the validity of caste claim of the petitioner and has described it as a mistake in its order, ought not to have arrived at a different conclusion. The matters pertaining to validity of caste have a great impact on the candidate as well as on the future generations in many matters varying from marriage to education and enjoyment, and therefore where a committee has given a finding about the validity of the caste of a candidate another committee ought not to refuse the same status to a blood relative who applies. A merely different view on the same facts would not entitle the committee dealing with the subsequent caste claim to reject it. There is, however, no doubt as observed by us earlier that if a committee is of the view that the earlier certificate is obtained by fraud it would not be bound to follow the earlier caste validity ::: Downloaded on - 09/06/2013 16:12:33 ::: 12 certificate and is entitled to refuse the caste claim and also in addition initiate proceedings for cancellation of the earlier order. In this view of the matter, we are of the view that the petition must succeed. Rule is made absolute in above terms. The Caste Scrutiny Committee is directed to furnish the caste validity certificate to the petitioner.
10. We record our appreciation for the assistance rendered by Mr.Manohar, amicus curiae.
JUDGE JUDGE
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