Madhya Pradesh High Court
Nageswar Sonkesri vs High Power Committee on 27 September, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE PRANAY VERMA
WRIT APPEAL No. 11 of 2021
BETWEEN:-
NAGESWAR SONKESRI S/O
PREMLAL SONKESRI, AGED ABOUT
45 YEARS, OCCUPATION: ASSTT
COMMISSIONER OF EXERCISE,
C-2, ORATEEK PAMS, SCHEME NO.
78, IDA, VIJAINAGAR, INDORE
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI ASHOK KUMAR SETHI, SENIOR ADVOCATE
WITH SHRI HARISH JOSHI, ADVOCATE)
AND
1. HIGH POWER COMMITTEE
SECRETARY COMMISSIONER
TRIBAL WELFARE DEPARTMENT,
SATPURA BHAWAN, BHOPAL
(MADHYA PRADESH)
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 30-09-2022
13:51:41
2
2. STATE OF MP THROUGH
SECRETARY COMMERCIAL TAX
DEPARTMENT, MANTRALAYA,
VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
3. STATE OF M.P. THROUGH
PRINCIPAL SECRETARY SCHEDULE
CAST WELFARE DEPARTMENT
MANTRALAYA, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANISH NAIR, DY. ADVOCATE GENERAL)
WRIT APPEAL No. 12 of 2021
BETWEEN:-
NAGESWAR SOKESRI S/O PREMLAL
SONKESRI, AGED ABOUT 45 YEARS,
OCCUPATION: SERVICE C-2,PRATIK
PAMS, SCHEME NO. 78, VIJAY
NAGAR, INDORE (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ASHOK KUMAR SETHI, SENIOR ADVOCATE
WITH SHRI HARISH JOSHI, ADVOCATE)
AND
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 30-09-2022
13:51:41
3
1. HIGH POWER COMMITTEE
SECRETARY COMMISSIONER
TRIBAL WELFARE DEPARTMENT,
SATPURA BHAWAN, BHOPAL
(MADHYA PRADESH)
2. STATE OF M.P. COMMERCIAL
TAX DEPARTMENT THR.
SECRETARY COMMERCIAL TAX
DEPARTMENT MANTRALAY
VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
3. STATE OF M.P. SCHEDULED
CASTE WELFARE DEPARTMENT
THR. PRINCIPAL SECRETARY
SCHEDULED CAST WELFARE
DEPARTMENT MANTRALAYA,
VALLABH BHAWAN (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI MANISH NAIR, DY. ADVOCATE GENERAL)
..............................................................................................................
This appeal coming on for order this day, JUSTICE PRANAY
VERMA passed the following:
J U D G M E N T
(Delivered on 27.09.2022) Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 4
1. These appeals have been preferred Under Section 2 of M. P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against a common order dated 22-12-2020 passed by the learned Single Judge hence they have been heard together and are being decided by a common order.
2. In Writ Appeal No.11/2021 the petitioner/appellant has challenged the order passed by the learned Single Judge affirming the decision of the Caste Scrutiny Committee finding his Caste Certificate to be forged/false and also holding that he is even otherwise not entitled for issuance of such certificate in his favour. In Writ Appeal No.12/2021 the petitioner/appellant has challenged the order passed by the learned Single Judge whereby his challenge to his consequential dismissal order has been turned down.
3. The facts of the case as per the appellant are that he belongs to Schedule Tribe category as he belongs to "Halbi-Koshti" caste which is classified as a Scheduled Tribe Caste in the State of M.P. as per Presidential notification applicable to the State Government. A permanent caste Certificate dated 18-08-2005 to that effect was issued to the appellant by the Sub Divisional Officer, Sub Division Huzur, District Bhopal in Case No.2739/B-121/04-05. The appellant was thereafter appointed as a District Excise Officer on 15.02.2001 and by order dated 21.04.2004 his earlier services rendered from 04.09.1991 up to 14.02.2001 were counted in his service career in continuation.
Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 54. The further case of the appellant is that on the basis of certain complaints an inquiry was initiated by the Caste Scrutiny Committee and he was issued a notice to which he submitted a detailed reply along with several documents. The appellant in his reply furnished the evolution, existence and continuance of the origin of the caste "Halba- Halbi/Koshta-Koshti" supported by relevant documents including various texts. The committee without holding any inquiry, after considering the matter communicated its report dated 21.06.2010 along with covering letter dated 15.07.2010 in which it was held that the Caste Certificate dated 18.08.2005 of the appellant has been found not to have been issued by the Competent Authority. The same was accordingly cancelled by the Caste Scrutiny Committee. This decision was challenged by the petitioner before the learned Single Judge which challenge has faced dismissal by the impugned order.
5. The case of the appellant in W.A. No.12/2021 is that he was initially appointed in the Woman and Child Development Department on 04.09.1999 and continued to work till 14.02.2001, Thereafter he was appointed on the post of District Excise Officer on 15.02.2001 and by order dated 21.04.2004 his earlier services rendered from 04.09.1991 to 14.02.2001 were counted in his service tenure in continuation. He was promoted to the post of Assistant Commissioner (Excise) on 18.04.2007. During his service tenure the appellant had been granted the Caste Certificate dated 18.08.2005. On the basis of certain Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 6 complaints an inquiry was initiated by the Caste Scrutiny Committee which by order dated 21.06.2010 found the Caste Certificate of the appellant to be forged as it was found that the same had not been issued by the Competent Authority. On the basis of order dated 21.06.2010 respondent No.2 suspended the appellant on 27.07.2010 and thereafter issued a show cause notice to him on 06.08.2010 which was duly replied to by him. However, by order dated 22.11.2010 the appellant was dismissed from services in exercise of powers conferred under Rule 10 (8) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. The appellant challenged the order dated 22.10.2010 by preferring a Writ Petition which has been dismissed by the learned Single Judge by the impugned order.
6. Learned Senior counsel for the appellant submits that the learned Single Judge has erred in dismissing his Writ Petition challenging the order passed by the respondents cancelling his Caste Certificate. The earlier temporary Caste Certificate issued by the Sub Divisional Officer on 27.02.1998 in Case No.2221/131Z/97-98 has not been taken into consideration at all. The permanent Caste Certificate was issued by the Sub Divisional Officer in Case No.2739/B-121/04-05 which was registered in name of appellant's father Shri Premlal Sonkesri and his brother Khushendra and the appellant had been issued Caste Certificate therein after holding an inquiry. In the letter dated 15.07.2010 of the Sub Divisional Officer it was mentioned that case was found in Dayra Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 7 register the certified copy of which had been submitted by the appellant. Thus, the letter dated 10.08.2009 of the S.D.O. could not have been the basis for holding the Caste Certificate as forged. The decision of the Caste Scrutiny Committee relying upon the Police report dated 05.04.2010 was apparently wrong as they had visited wrong address, which fact has not been considered. The letters/reports of Police Officer/Vigilance Officer and all the adverse material and various letters collected by the Superintendent of Police, Bhopal were never communicated to the appellant which were required to be supplied to him. None of the documents submitted by the appellant were taken into consideration which fact has been totally overlooked. The appellant was also not provided opportunity to lead evidence. The learned Single Judge had passed an order on 31.10.2011 directing for investigation in the case consequent to which respondent No.1 directed the S.S.P. and in pursuance thereof the Deputy Superintendent of Police and S.S.P. gave their reports on 25.01.2012 and 30.01.2012 that earlier the Police had visited the wrong address of the appellant. The Superintendent of Police (AJAKS), Bhopal had submitted his detailed inquiry report in favour of the appellant. The appellant belongs to "Halba-Koshti" caste and his predecessors used to live in forest by cultivating land by using Hal hence were classified by "Halba-Halbi". The reasons as to why the appellant and his forefathers were called "Koshta-Koshti" was given in detail by the appellant in his reply, which Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 8 has not been considered either by the respondents or by the learned Single Judge. The appellant does not belong to "Koshti" but belongs to "Halba" caste which is a Scheduled Tribe caste. It was not a case of forged Caste Certificate of the appellant as the same had been issued by the competent authority. The same is also not false as the petitioner belongs to S.T. Caste.
7. Learned Senior counsel for the appellant in W.A. No.12/2021 submits that the learned Single Judge has erred in not considering that no chargesheet was issued to the appellant and no departmental inquiry was conducted against him under Rule 14 of the Rules, 1966. Since dismissal is a punishment under Rule 10 (8) of the Rules 1966, same could not have been given without following the procedure as contained under Rule 14 of the Rules. Dismissal is a major penalty hence the show cause notice dated 06.08.2010 cannot be said to be a chargesheet under Rule 14. The appellant being a permanent employee cannot be dismissed from service by three month's salary. Appointments made in Government service prior to 28.11.2000 are protected as per the decision of the Hon'ble Supreme Court in State of Maharashtra V/s. Milind (2001) 1 SCC 4. The judgments relied upon by the appellant before the learned Single Judge have not been appreciated in proper perspective vitiating the order.
8. Reliance has been placed by the learned counsel for the appellant on the judgment of the Hon'ble Supreme Court in Central Inland Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 9 Water Transport Corporation Limited V/s. Brojo Nath Ganguly & Another AIR 1986 SC 1571, Samarendranath Sengupta v. National Newsprint and Paper Mills Ltd., Nepanagar 1989 MPLJ 346, O.P. Bhandari v. Indian Tourism Development Corpn. Ltd. AIR 1987 SC 111, M.K. Agarwal v. Gurgaon Gramin Bank AIR 1988 SC 286, State of Maharashtra V/s. Milind & Others (2001) 1 SCC 4, R. Vishwanatha Pillai v. State of Kerala (2004) 2 SCC 105, LIC v. Sushil (2006) 2 SCC 471, State of Maharashtra v. Ravi Prakash Babulalsingh Parmar (2007) 1 SCC 80, Rampal v. State of Haryana (2009) 9 SCC 187, Kranti Associates (P) Ltd. v. Masood Ahmed Khan (2010) 9 SCC 496, Gokul Prasad v. State Level Committee 2012 (1) MPLJ 359 and Rajesh Kumar v. State of Bihar (2013) 4 SCC 690 to submit that since the High Powered Committee is a quasi judicial authority it was bound to consider the reply and documents filed before it. He could not have been dismissed from service in the manner as has been done without following the mandatory procedure.
9. Per contra learned counsel for the respondents has supported the impugned order passed by the learned Single Judge submitting that the appellant had claimed to be belonging to the "Halba-Koshti" caste whereas the Caste Certificate issued to him was in respect of "Halba" caste which in itself was a contradictory stand. In the inquiry duly conducted by the Caste Scrutiny Committee it had been found that the Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 10 Caste Certificate dated 18.08.2005 of the appellant was never issued and that the appellant does not belong to the "Halba" caste. Such findings were based upon the reports submitted before the committee and had been arrived at by going through the entire record. The learned Single Judge has rightly affirmed the said findings. As the appellant had secured appointment on the basis of a forged Caste Certificate he was absolutely disentitled to claim any right to continue in a post earmarked for the Schedule Tribe Category. The ratio in Milind (supra) has hence rightly been declined to be applied particularly when the same was clarified in several subsequent decisions by the Hon'ble Supreme Court.
10. Reliance has been placed by him on the decision of the Hon'ble Supreme Court in R. Vishwanatha V/s. State of Karala & Others (2004) 2 SCC 105, Addl. GM-Human Resource, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde (2007) 5 SCC 336 and State of M.P. v. Sanjay Kumar Koshti 2019 (1) MPLJ 589.
11. We have heard learned counsel for the parties and have perused the record.
12. The specific case of the appellant in the Writ Petition was that he belongs to "Halba-Koshti" caste as pleaded by him in paragraph No.6.1 of his memo of petition which is reproduced hereunder :-
6.1 Because the petitioner belongs to "Halba-Koshti" caste and the predecessors of the petitioner used to live in forests and earn their livelihood by cultivating land by the use of "Hal" and Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 11 on account of their occupation, they were classified as "Halba-
Halbi". In Ratanpur State in the township of "Sinhawa" the forefathers of the petitioner used to live. On account of outspread of certain disputes, the forefathers of the petitioner had to disperse and were ousted from living at the same place. After the forefathers of the petitioner, were displaced, they used to collect the fruit of "Kosa" and by use of manual spindles used to undertake weaving of clothes by making threads and for this reason they were called as "Koshta/Koshti".
13. In the reply dated 12.06.2010 filed by the petitioner before the Caste Scrutiny Committee he had categorically stated in the first line itself of paragraph No.1 that he belongs to "Halba-Koshti" Caste. Thus, the case of the appellant before the Caste Scrutiny Committee and before this Court has always been that he belongs to "Halba-Koshti"
caste. Though in his reply filed before the Caste Scrutiny Committee the appellant had tried to explain as to why he and is forefathers were classified as "Koshta-Koshti" but are in fact "Halba-Halbi", the same is unacceptable and without any merit in view of the decision of the Hon'ble Supreme Court in the matter of Milind (supra) wherein it has considered the issue if "Halba-Koshti" can be treated to be a sub tribe of "Halba-Halbi". The Hon'ble Apex Court held that the notification issued under Article 342(1) of the Constitution of India specifying Schedule Tribe can be amended only by the law made by parliament and by none else including the State Government, Courts and Tribunal Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 12 and that the entries made in the Presidential order are required to be read as it is. It was held in paragraph No.36 as under :
"36. In the light of what is stated above, the following positions emerge:-
1. It is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950.
2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it.
3. A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by the Parliament by law and by no other authority.
4. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342.
5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda vs. Anirudh Patar & others (1971 (1) SCR 804) and Dina vs. Narayan Singh (38 ELR 212), did not lay down law correctly in stating that the enquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in position (1) above no enquiry at all is permissible and no evidence can be let in, in the matter."Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 13
14. Since the specific case of the appellant is that he belongs to "Halba-Koshti" caste which is not a Schedule Tribe but belongs to Other Backward Classes, the Caste Scrutiny Committee has rightly held that the appellant does not belong to the Scheduled Caste category "Halba" which finding has rightly been affirmed by the learned Single Judge.
15. The Permanent Caste Certificate of the appellant dated 18.08.2005 is in respect of him belonging to the "Halba" Schedule Tribe. So is his Temporary Caste Certificate dated 27.02.1998 and his another Temporary Caste Certificate dated 24.01.2000. However, the claim of the appellant before the Caste Scrutiny Committee as well as before this Court has been of him belonging to "Halba-Koshti"
Schedule Tribe. As held by the Apex Court in the case of Milind (supra) "Halba-Halbi" and "Koshta-Koshti" are different caste altogether. While "Halba/Halbi" is a notified Schedule Tribe under the Presidential order, "Halba-Koshti" is not a Schedule Tribe thereunder.
"Koshta -Koshti" in fact belongs to the Other backward classes category. The appellant has hence taken diagonally divergent stands at different points of time and which as held above are not legally permissible, hence he is bound to face consequence of the same. On the basis of his stand of him belonging to the "Halba-Koshti" caste itself his case deserves to be thrown out.
16. The appellant contends that he was earlier issued a Temporary Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 14 Caste Certificate by the Sub Divisional Officer, Tehsil Huzur, District Bhopal on 27.02.1998. There is another Caste Certificate dated 24.01.2000 issued in favour of the appellant by the Sub Divisional Officer, Tehsil Huzur, District Bhopal eventually followed by his Permanent Caste Certificate dated 18.08.2005 The Temporary Caste Certificates of the appellant do not bear any case number in proceedings of which they might have been issued. The column of the case number is blank. However, in the Permanent Caste Certificate dated 18.08.2005 the case number has been mentioned to be 2739/B-121/05-06. The Sub Divisional Officer, Sub Division Huzur, District Bhopal by his letter dated 10.05.2009 has categorically stated that the Certificate bearing case number as mentioned therein in the name of the appellant was never issued by the office concerned. No material has been brought on record by the appellant to show as regards the existence of the said case in the office of the Sub Divisional Officer concerned.
17. The appellant has contended that the said case did exist as has been intimated by the Sub Divisional Officer by his letter dated 15.07.2010 stating that the case has been found in the Dayra (filing) register. A perusal of the said filing register shows that the said entry is in the name of father of the appellant and not the appellant. It is an admitted case between the parties that the father and brothers of the appellant had also applied for and had been issued Caste Certificates. The presumption may be that an application had been filed by father of Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 15 the appellant for grant of Caste Certificate to him and a case was registered on that application. It cannot at all be presumed that the alleged entry in the filing register was in respect of application filed by the appellant for grant of caste Certificate to him. In any case only on the basis of entry made in the filing register it cannot be presumed that proceedings must have necessarily been taken in that case in absence of any concrete proof of those proceedings. The filing register at best can be regarded to be proof of filing of the application and nothing more. Moreover, the filing entry does not anywhere mention that filing is in fact of an application by the applicant for grant of a Caste Certificate.
18. From the entry made in the filing register no presumption can be drawn that a case was registered and Caste Certificate was in fact issued in favour of the appellant. As per the rules, each person has to apply in personal capacity for grant of Caste Certificate in his favour. An application made by an individual cannot be treated to be an application made by him for grant of such Caste Certificate in favour of each and every member of his family. Thus, if father of the appellant had made an application for grant of Caste Certificate in his favour it would not mean that the same was on behalf of the appellant also. The contention of the appellant that from the filing register it ought to have been held that a case was in fact registered upon application by appellant for grant of Caste Certificate cannot be accepted. It has hence rightly been held that the Permanent Caste Certificate in name of the appellant is forged Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 16 the same not having been issued in any duly instituted proceedings.
19. In the Permanent Caste Certificate issued in favour of the appellant his address has been mentioned as 27, Amaltas, Phase-1, Chuna Bhatti, District Bhopal whereas in his Temporary Caste Certificates the same had been mentioned as A-114, Kamla Nagar, Kotra Sultanabad, Tehsil Huzur, District Bhopal. Thus, it is evident that the appellant has been giving his different permanent addresses. In the inquiry conducted by the Superintendent of Police, District Bhopal as regard genuineness of the Caste Certificate of the appellant it had been reported that at the address of the appellant given by him i.e. 114, Kamla Nagar, Kotra Sultanabad, Bhopal, some other persons are residing.
20. The appellant has also raised grievance as regards non conduction of inquiry at the address given in his Certificate i.e. 114-A, Kamla Nagar, Kotra Sultanabad, Bhopal. However, it is pertinent to note that the address of the appellant in his Caste Certificate dated 18.08.2005 is 27, Amaltas, Phase-1, Chuna Bhatti, Bhopal whereas the address of 114-A, Kamla Nagar, Kotra Sultanabad, Bhopal finds mention in the Temporary Caste Certificate. Since the appellant has given two different permanent addresses in the above Caste Certificates, it does not lie in his mouth to raise a grievance that inquiry has not been conducted at his given address. In the inquiry conducted by the Superintendent of Police the place of residence of the appellant has Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 17 been visited and it had been reported that he has not been residing therein.
21. Even in the document produced by the appellant to show that he had been a resident at 114-A, Kamla Nagar, Kotra Sultanabad, Bhopal it has been stated that he had resided there as a tenant for a period of one year. From that document itself it is apparent that the appellant had resided at that address only for a period of one year that too as a tenant but had given that temporary address as his permanent address in the Caste Certificate. The appellant having given two separate addresses in his Caste Certificates itself is sufficient to hold that his Caste Certificate is forged. In any case, since the caste certificate of the appellant has itself been found to be forged and never having been issued by the Competent Authority, this aspect of the matter as regards conducting of inquiry at the given address of the appellant is not of much significance and does not have any effect upon the final conclusions drawn by the Caste Scrutiny Committee.
22. It is also on record that the Sub Divisional Officer, Mandla had also conducted an inquiry into the alleged forged Caste Certificate of the appellant. The same was done in his home town where his family members reside permanently. In the inquiry statement of appellant's father, cousin brother and his aunt Savitribai were taken. They admitted that their ancestors used to write their caste as "Koshta-Koshti" and later on had started to write their caste as "Halba-Koshti". The Caste Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 18 Certificate of cousin of the appellant shows that he belongs to "Koshta"
Caste and Savitribai belongs to "Koshta-Koshti" caste. In the inquiry it has been held that ancestors of the appellant belong to "Koshta-Koshti"
caste and later on for the purpose of gaining undue benefits changed their caste projecting themselves to be of "Halba" caste.
23. As far as the grievance of the appellant that he was not given opportunity to defend himself in the proceedings is concerned, from the record it is apparent that the appellant was throughout present during the inquiry. Notices were duly served upon him by the Caste Scrutiny Committee. The appellant had also filed his reply before the Caste Scrutiny Committee along with a number of documents. The appellant participated in the proceedings personally and examined the record. At no point of time any grievance was raised by him as regards non- furnishing of any document by the Caste Scrutiny Committee. He never submitted before the Committee that he should be provided an opportunity to lead evidence or that he had any further evidence to lead besides the documents filed by him along with his reply. In the questionnaire filled up by the appellant before the Caste Scrutiny Committee he mentioned his permanent address to be District Mandla. However, his address of Mandla nowhere finds place in any of his Caste Certificates. The appellant being a resident of Mandla, issuance of temporary and permanent Caste Certificates in his favour from District Bhopal is by itself sufficient to raise suspicion as regards genuineness Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 19 of his Caste Certificate.
24. The reliance by the learned counsel for the appellant on paragraph No.38 of the judgment in the case of Milind (supra) is also of no avail to the appellant. In Milind (supra) protection had been given to the candidate exercising power under Article 142 of the Constitution of India. The judgment in the case of Milind (supra) was pronounced on 28.11.2000 whereas the petitioner was selected for appointment on the post of District Excise Officer on the basis of his forged Caste Certificate and he joined on 15.02.2001 i.e. after judgment in the case of Milind (supra) hence he is not entitled to the protection. The services earlier rendered by appellant in Woman and Child Welfare Department have been counted only for a limited purpose of continuity in service. The judgment in the case of Milind (supra) had been given in a particular fact situation and has been explained in several subsequent judgments which have been reproduced in detail by the learned Single Judge in the impugned order hence are not required to be reproduced again. Reliance has been placed particularly on the decision of the Hon'ble Supreme Court in the matter of Union of India V/s. Dattatre and Others 2008 (4) SCC 612 wherein it has been held in paragraph No.5 to 8 as under :-
"5. Milind (supra) related to a Medical College admission. The question that arose for consideration in that case was whether it was open to the State Government or Courts or other authorities to modify, amend or alter the list of Scheduled Tribes and in particular whether the "Halba-Koshti" was a sub-division of 'Halba' Tribe. This Court held that it was not permissible to amend Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 20 or alter the list of Schedule Tribes by including any sub-divisions or otherwise. On facts, this court found that the respondent therein had been admitted in medical course in ST category, more than 15 years back; that though his admission deprived a scheduled tribe student of a medical seat, the benefit of that seat could not be offered to scheduled tribe student at that distance of time even if respondent's admission was to be annulled; and that if his admission was annulled, it will lead to depriving the services of a doctor to the society on whom the public money had already been spent. In these peculiar circumstances, this Court held that the decision will not affect the degree secured by respondent or his practice as a doctor but made it clear that he could not claim to belong to a Scheduled Tribe. But the said decision has no application to a case which does not relate to an admission to an educational institution, but relates to securing employment by wrongly claiming the benefit of reservation meant for Schedule Tribes. When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to scheduled caste/tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation.
6. In this context, we may also refer to the decisions in Bank of India v. Avinash D.Mandivikar (2005) 7 SCC 690 and Additional General Manager Human Resources, Bharat Heavy Electricals Ltd. V. Suresh Ramkrishna Burde, 2007 (5) SCC 336, wherein this Court held that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. In the latter case, this Court explained Milind thus :
"The High Court has granted relief to the respondent and has directed his reinstatement only on the basis of the Constitution Bench decision of this Court in State of Maharashtra v. Milind. In our opinion the said judgment does not lay down any such principle of law that where a person secures an appointment by producing a false caste certificate, his services can be protected and an order of reinstatement can be passed if he gives an undertaking that in future he and his family members shall not Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 21 take any advantage of being member of a caste which is in reserved category."
This Court further held that even in cases of admission to educational institutions, the protection extended by Milind (supra) will be applicable only where the candidate had successfully completed the course and secured the degree, and not to cases where the falsehood of the caste certificate is detected within a short period from the date of admission.
7. We are of the view that the High Court failed to appreciate the ratio of Milind. Having held that the first respondent had falsely claimed that he belonged to a Schedule Tribe, it wrongly extended him the benefit of continuing in employment.
8. We, therefore, allow this appeal and set aside the judgment of the High Court in so far as it directs the appellant to continue the first respondent in service. However, as the first respondent has submitted his resignation even before the writ petition was decided, and has not attended to duty from 13.10.2004, his terminal benefits, if any due to him, may be settled. It is however made clear that he will not be entitled to any pensionary benefit."
25. From the material available on record as has been found by the Caste Scrutiny Committee, the appellant does not belong to "Halba" Schedule Tribe category. Instead, he belongs to "Halba-Koshti" caste which in fact is the claim put forth by him before the Caste Scrutiny Committee and even before this Court. "Halba-Koshti" is not mentioned as Schedule Tribe in the Presidential order, therefore, it cannot be held to be a Scheduled Tribe. The Caste Certificate of the appellant to the effect that he belongs to Schedule Tribe "Halba" is hence apparently void ab initio. "Halba-Koshti" caste is OBC in Madhya Pradesh. The appellant does not belong to "Halba" or "Halbi" which is a Schedule Tribe. In any case as has been rightly found by the Caste Scrutiny Committee, the alleged Caste Certificate dated Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 22 18.08.2005 of the appellant was in fact never issued in his favour.
26. The findings of the Committee were based upon the evidence and material available before it in which no error or perversity could be pointed out hence has rightly been affirmed by the learned Single Judge. Thus, in our opinion the order passed by the learned Single Judge in W.P. No.57/11 upholding the decision of the Caste Scrutiny Committee dated 21.06.2010 does not suffer from any error and is hereby affirmed. The appeal is accordingly dismissed.
27. As regards the contentions raised by the learned senior counsel for the appellant in W.A. No.12/2021 to the effect that no chargesheet was issued to the appellant and no departmental inquiry was conducted under Rule 14 of the Rules, 1966 which was mandatory since dismissal is a punishment under Rule 10(8) thereof and the same could not have been done without following the procedure as contained in Rule 14, suffice it to observe that the appellant had obtained employment against the post reserved for Schedule Tribe on the basis of a forged Caste Certificate. His appointment as District Excise Officer is void ab initio as he did not belong to the Schedule Tribe as claimed by him. The appellant was issued a show cause notice dated 06.08.2010 and the consent of the Public Service Commission was also obtained by communication dated 16.11.2010. The appellant was also paid three month's salary.
28. Recently the Hon'ble Supreme Court in the case of Chief Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 23 Executive Officer, Bhilai Steel Plant, Bhilai V/s. Mahesh Kumar Gonnade and Others, Civil Appeal No.4990/2021 decided on 11.07.2022 which also related to fraudulently securing appointment on the basis of belonging to "Halba" caste, has held in paragraph No.14 to 16 as under:
"14. As we notice, the High Court disregarded the Government's circular dated 11.01.2016 whereby the previous circular (01.10.2011) was cancelled with the specific observation that Milind's judgment was clarified subsequently in Dattatray, by declaring that when a person secures appointment on the basis of a false certificate, he cannot be permitted to retain the benefit of wrongful appointment. In fact, necessary actions were expected to be taken against those who secured unmerited appointment on the basis of false caste certificate. Pertinently, the respondent no.1could have (but never did) challenge, the circular dated 11.01.2016 which required the Government to cancel such unmerited appointment.
15. As noted earlier, the respondent no.1 secured employment to a post earmarked for the reserved category, and there is a clear finding by the Caste Scrutiny Committee that the respondent no.1 does not belong to the Halba ST category. The Halba ST certificate (11.09.1987) on the basis of which the respondent No.1 secured employment was cancelled by the Committee on 15.07.2015, and such finding of the Caste Scrutiny Committee remain unchallenged till date. As a consequence, the respondent no.1 is disentitled to claim any equitable relief by virtue of his long service, particularly when he, despite the notice, avoided the proceedings of the Caste Scrutiny Committee. Also conspicuously, he does not challenge the adverse finding against him. Moreover, it is not the claim of the Respondent no.1 that he belongs to the ST category nor did he ever challenge the clarificatory circular (11.01.2016) which cancels the earlier circular (01.10.2011). In such circumstances, an opportunity to the respondent no.1 would be futile because he could not have claimed that he belongs to the ST category since his Halba caste certificate (issued on 11.09.1987) stood cancelled by the Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 24 Committee. Consequently, as an OBC person, the respondent no.1 could not have been permitted to continue in a post meant for the ST category. The High Court, therefore, should not have granted relief by invoking the principles of natural justice, and by adverting to the ratio in Milind (supra) which was not applicable to the respondent no.1, and which eventually was clarified in Dattatray (supra).
16. The above would show that the High Court clearly fell into an error by granting relief to the respondent no.1 who is disentitled to claim any right to continue in a post earmarked for the ST category. The ratio in Milind (supra) was incorrectly applied in the impugned judgment since it is not the case of the respondent no.1 that he belongs to the ST category. According to our understanding of the circumstances, the High Court instead of granting equitable relief to the Respondent no. 1, should have held that he cannot continue to usurp the benefits meant for a ST category person. Indeed the Division Bench should have said "the game is up" as was pronounced by Shakespeare in the play Cymbeline when the character stood exposed for what he actually was. Consequently we are of the opinion that the Respondent no. 1 being an OBC cannot be retained in a ST category post. However the emoluments paid to him should not be recovered. It is further held that the respondent no.1 is disentitled to any pensionary benefit by virtue of his wrongful appointment. It is ordered accordingly. The appeal therefore stands allowed, leaving the parties to bear their own costs."
29. In Chairman and Managing Director, Food Corporation of India and others Vs. Jagdish Balaram Bahira and others (2017) 8 SCC 670 has held in para No. 69 as under:
"69. For these reasons, we hold and declare that:
69.1. The directions which were issued by the Constitution Bench of this Court in para 38 of the decision in Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 25 were in pursuance of the powers vested in this Court under Article 142 of the Constitution;
69.2. Since the decision of this Court in Madhuri Patil [Madhuri Patil v. Commr., Tribal Development, (1994) 6 SCC 241 : 1994 SCC (L&S) 1349] which was rendered on 2-9-1994, the regime which held the field in pursuance of those directions envisaged a detailed procedure for:
(a) the issuance of caste certificates;
(b) scrutiny and verification of caste and tribe claims by Scrutiny Committees to be constituted by the State Government;
(c) the procedure for the conduct of investigation into the authenticity of the claim;
(d) Cancellation and confiscation of the caste certificate where the claim is found to be false or not genuine;
(e) Withdrawal of benefits in terms of the termination of an appointment, cancellation of an admission to an educational institution or disqualification from an electoral office obtained on the basis that the candidate belongs to a reserved category; and
(f) Prosecution for a criminal offence.
69.3. The decisions of this Court in R. Vishwanatha Pillai [R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105 : 2004 SCC (L&S) 350] and in Dattatray [Union of India v. Dattatray, (2008) 4 SCC 612 : (2008) 2 SCC (L&S) 6] which were rendered by Benches of three Judges laid down the principle of law that where a benefit is secured by an individual-such as an appointment to a post or admission to an educational institution--on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 26 verification would result in the appointment or, as the case may be, the admission being rendered void or non est. 69.4. The exception to the above doctrine was in those cases where this Court exercised its power under Article 142 of the Constitution to render complete justice;
69.5. By Maharashtra Act 23 of 2001 there is a legislative codification of the broad principles enunciated in Madhuri Patil [Madhuri Patil v. Commr., Tribal Development, (1994) 6 SCC 241 : 1994 SCC (L&S) 1349] . The legislation provides a statutory framework for regulating the issuance of caste certificates (Section
4); constitution of Scrutiny Committees for verification of claims (Section 6); submission of applications for verification of caste certificates [Sections 6(2) and 6(3)]; cancellation of caste certificates (Section 7); burden of proof (Section 8); withdrawal of benefits obtained upon the invalidation of the claim (Section 10); and initiation of prosecution (Section 11), amongst other things;
69.6. The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect of caste certificates issued prior to and subsequent to the enforcement of the Act on 18- 10-2001. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual to belong to a reserved caste, tribe or class is yet to be verified by the Scrutiny Committee;
69.7. Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;
Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 2769.8. The decisions in Kavita Solunke [Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430 : (2012) 2 SCC (L&S) 609] and Shalini [Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S) 265] of two learned Judges are overruled. Shalini [Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S) 265] insofar as it stipulates a requirement of a dishonest intent for the application of the provision of Section 10 is, with respect, erroneous and does not reflect the correct position in law;
69.9. Mens rea is an ingredient of the penal provisions contained in Section 11. Section 11 is prospective and would apply in those situations where the act constituting the offence has taken place after the date of its enforcement;
69.10. The judgment of the Full Bench of the Bombay High Court in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] is manifestly erroneous and is overruled; and 69.11. Though the power of the Supreme Court under Article 142 of the Constitution is a constitutional power vested in the court for rendering complete justice and is a power which is couched in wide terms, the exercise of the jurisdiction must have due regard to legislative mandate, where a law such as Maharashtra Act 23 of 2001 holds the field."
30. The Caste Scrutiny Committee had recorded a finding that the appellant obtained employment on strength of a forged Caste Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 30-09-2022 13:51:41 28 Certificate. As above the decision of the said committee as upheld by the learned Single Judge has been maintained by us. The inevitable consequence of such a decision is that the employment obtained by the appellant on the basis of a forged Caste Certificate cannot be protected and his termination from service/cancellation of appointment is the only consequential order to be passed. Consequently, we do not find any reason to interfere in the order passed by the learned Single Judge in W.P. No.32/2001. The order passed therein is also hereby affirmed and W.A. No.12/2021 is also dismissed.
(VIVEK RUSIA) (PRANAY VERMA)
JUDGE JUDGE
ns
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 30-09-2022
13:51:41