Bombay High Court
Prakash Namdeorao Kedar And Ors. vs Union Of India (Uoi) And Ors. on 8 August, 2003
Equivalent citations: 2004(3)BOMCR417, 2003(4)MHLJ233
Author: D.D. Sinha
Bench: D.D. Sinha, A.P. Deshpande, R.S. Mohite
JUDGMENT D.D. Sinha, J.
1. The Hon'ble the Chief Justice referred Writ Petition No. 786 of 2002, Vijay Sukhdeo Naydekar v. State of Maharashtra and three Ors. to the Larger Bench in view of the Order of Reference, dated 3-2-2003, passed by the Division Bench. Similarly, Writ Petition No. 77 of 1995, Prakash Namdeorao Kedar and Ors. v. Union of India and Ors., as well as Writ Petition No. 262 of 1996, Gajanan Govindrao Isal v. State of Maharashtra and Ors., are referred to this Larger Bench by the Hon'ble the Chief Justice, and Writ Petition No. 1598 of 2003, Smt. Uma Jamunalal Joshi v. State of Maharashtra and two Ors., is also referred to us by the Hon'ble the Chief Justice in view of the reference order, dated 17-4-2003, passed by another Division Bench.
2. Since a common question of law is involved in the above referred Writ Petitions, we have heard all the Writ Petitions together and disposed of the references by this common judgment.
3. Heard learned counsel for the parties in the respective Writ Petitions.
4. The Division Bench, presided over by Mr. Justice Daga in Writ Petition No. 786 of 2002, Vijay Sukhdeo Naydekar v. State of Maharashtra and Ors., while considering the challenge to validity of the Order dated 10-12-1999, passed by the Committee for Scrutiny and Verification of Tribe Claims, Nagpur (hereinafter referred to as "the Caste Scrutiny Committee", for short), came across and noticed that the Division Bench, presided over by the Hon'ble the Chief Justice in Anil Vasantrao Shirpurkar's case reported in 2002(4) Mh.LJ. 365 had taken a view that the power of the Scrutiny Committee is akin to the power of revision and as such must be exercised within a reasonable period. So far as reasonable period is concerned, the Bench was pleased to prescribe time limit for reference to the Castes/Tribes Scrutiny Committee equal to the period prescribed for confirmation of services of the employee who is on probation. Similarly, the decision rendered by the Division Bench in the case of Anil Vasantrao Shirpurkar (supra) is based on the earlier decision of Division Bench of this Court in case of Chandrabhan Yamaji Nandanwar v. Director of Health Services, M. S., Bombay and Ors., 1999(1) Mh. L. J. 536. The counsel for the petitioner in Vijay Sukhdeo Naydekar's case contended before the Division Bench in that case that the law laid down by the Division Bench in Chandrabhan 's case is that if the person is appointed in the Government or semi-Government Organization from the reserved category availing the benefits extended to such category in the employment, the employer is required to make a reference for verification of the Caste Certificate of such employee to the Caste Scrutiny Committee within the period of two years, which is normally prescribed for confirmation of services of the probationers, and if the reference is made after a period of two years, the same was held to be violative of Article 14 of the Constitution of India being beyond the reasonable period. It is further contended that in Anil Vasantrao Shirpurkar's case (supra), the Division Bench, relying on the law laid down in Chandrabhan's case (supra), also concluded that the person, who is appointed in the Government or semi-Government employment, normally remains on probation for a period of two years and before completion of period of probation, the employer should initiate proceedings for reference of the Caste Certificate of such employee for verification by the Caste Scrutiny Committee. In nutshell, the contention, which was canvassed before the Division Bench in Vijay Naydekar's case (supra) was that the employer can only exercise power, or is entitled to refer the caste claim/Caste Certificate of his employee to the Caste Scrutiny Committee within the reasonable period of two years from the date of his appointment, and if the reference is made beyond the period of two years, the same would be violative of Article 14 of the Constitution of India being beyond the reasonable period in view of the decisions rendered by this Court in Chandrabhan Nandanwar's case (supra) as well as Anil Shirpurkar's case (supra).
5. The Division Bench, presided over by Mr. Justice Daga, accepted the above referred contention canvassed by the learned counsel for the petitioner in Vijay Naydekar's case, and was of the view that the law laid down in Chandrabhan Nandanwar's case (supra) does put fetter on the powers of the employer in referring the Caste Certificate of its employee for verification to the Caste Scrutiny Committee beyond the reasonable period of two years, which is also normally prescribed for confirmation of services of probationers. The Division Bench in Vijay Sukhdeo Naydekar's case is also of the view that a similar legal proposition is laid down in Anil Vasantrao Shirpurkar's case (supra) and while quantifying two years as a reasonable period, reliance is placed on the proposition of law laid down by the Apex Court in State of Gujarat v. Patel Raghav Natha, , The Division Bench in Vijay Naydekar's case evaluated the law laid down by the above referred Division Benches vis-a-vis the law laid down by the Apex Court in G. Sudarsan v. Union of India and Anr., and recorded its conclusion in para 18 which reads thus :
"18. A conjoint reading of the aforesaid Sub-sections (2) and (3) of Section 6 of the said Act permits any person desirous of availing of the benefits or concessions provided to his caste to make application well in time to the concerned Scrutiny Committee for verification of his caste certificate. Can power to make reference be equated with revisional power, so as to put fetter of such power. In our opinion, no such fetter can be prescribed. Most of the time, person who is trying to get advantage of caste certificate obtained by dubious method or by exercising some influence may not like to go before the Caste Scrutiny Committee for getting his caste claim verified unless he is compelled. Cases are not unknown wherein superior officer with a view to help junior does not make reference to the Scrutiny Committee for years together. On the backdrop of the above provisions, we do not think power to make reference to the Scrutiny Committee can be equated with the power of revision."
6. Similarly, the Division Bench in Vijay Naydekar's case in Paragraph 20 observed thus :
"20. The Caste Verification Committee is not an Appellate or Original Authority in any sense. It is a committee established for verifying the correctness of the certificate on the basis of which the State proposes to bestow a benefit on a person belonging to a particular caste or tribe. That preference or privilege or benefit being an exception has to be strictly construed. The responsibility is therefore cast on the Committee to scrutinize a certificate on the basis of which such advantages can be obtained and such scrutiny, therefore, must be open at all times. Therefore the Supreme Court has observed that no limitation can be read for the purposes of verifying correctness of caste certificate. Limitation could exceed further when the certificate as verified by the Committee is subjected to a further challenge. Scrutiny by the Committee is the initiation of verification proceeding for which there should be no limitation. Considered from any angle, therefore, the question will have to be considered in depth and uniformity of opinion at least within the Bombay High Court, in our opinion, is necessary. Hence we deem it just and proper to request the Hon'ble Chief Justice to constitute a larger bench to consider this aspect."
Since the Division Bench, presided over by Mr. Justice Daga in Vijay Naydekar's case, was of the view that the power of the employer for referring the caste claim of its employee for verification to the Caste Scrutiny Committee cannot be restricted by putting limitation of two years in view of the law laid down by the Apex Court in G. Sudarsan's case (supra), the inconsistency has arisen in regard to the findings recorded by the Division Benches in the Judgments in this regard and hence the matter is before us.
7. Mr. Madkholkar, the learned counsel appearing for the petitioners in Writ Petition Nos. 77 of 1996 and 262 of 1996, contended that there is no time prescribed under the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta-Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (hereinafter referred to as "the Caste Certificates Act, 2000", for short) for employer to refer the Caste Certificate of its employee for verification to the Caste Scrutiny Committee. In absence of any specific time prescribed for this purpose, the employer has to refer the matter to the Caste Scrutiny Committee within the reasonable time. Mr. Madkholkar has fairly conceded and submitted that the question as to what is the reasonable period in each case shall depend upon surrounding circumstances and relevant factors and the same will have to be determined in view of those facts and circumstances of each case and nature of order which is sought to be invalidated. It is further submitted that it would be hard to give exact definition of 'reasonable period', since it depends upon the facts and circumstances of each case. In order to support this contention, reliance is placed on the judgment of the Apex Court in Collector and Ors. v. P. Mangamma and Ors., .
8. Mr. Madkholkar further contended that so far as Chandrabhan Nandanwar's case (supra) is concerned, the matter was argued by him before the Division Bench and the decision rendered by the Division Bench in Chandranbhan Nandanwar's case (supra) does not lay down a mandatory limit of two years as a reasonable time for referring the caste claim by the employer to the Caste Scrutiny Committee. The employer is not precluded from referring the caste claim to the Caste Scrutiny Committee beyond the period of two years. Mr. Madkholkar, however, vehemently argued that the employer should not be allowed to cause further delay in referring the caste claim beyond the period of two years and some positive direction in this regard needs to be given to the employer, which will serve the purpose of employer as well as employee.
9. Mr. Madkholkar also tried to canvass before us that in view of certain Government resolutions and decisions of the Courts, the rights of the Candidate which are perfected in the employment cannot be re-opened, nor such rights can be taken away.
10. Mr. Madkholkar, the learned counsel for the petitioners, further contended that in order to decide the reasonable period, the most important legislative instrument is the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta-Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, which came into force on 17-10-2001 by notification issued by the Government while exercising power conferred by Sub-section (1) of Section 1 of the said Act. It is contended that the employer should sent the Caste Certificate of its employee to the Caste Scrutiny Committee for verification within the reasonable period from the date of his appointment and since the employee is on probation for a period of two years this can be treated as a reasonable period and, therefore, the employer must make a reference within such period as held by Division Bench in Chandrabhan Nandanwar's case (supra).
11. Mr. Madkholkar, the learned counsel, further contended that perusal of Section 7 of the Act shows that powers are conferred on the Scrutiny Committee to verify the Caste Certificates which were issued before or after the commencement of the said Act, and if it is found that a candidate obtained a Caste Certificate fraudulently, then the Scrutiny Committee is empowered to cancel and confiscate the said Certificate by following such procedure as prescribed by the said Act. This provision has a retrospective effect, because the Scrutiny Committee is empowered to verify, the Caste Certificates which are issued prior to or after the commencement of the said Act. It is contended by Mr. Madkholkar that if a Caste Certificate is obtained by fraud and misrepresentation, the employer is entitled to make a reference as and when such fraud is detected and there cannot be any time limit fixed in such situation. However, such situation cannot be equated with that of the normal situation, that is where a candidate obtains Caste Certificate from the Competent Authority by following the regular procedure and in the normal course without playing fraud. The doctrine of 'reasonable period of two years' for reference by the employer in respect of Caste Certificate of its employee is attracted in the normal situation and not in the case of fraud and misrepresentation.
12. Ms. Dangre, learned Asstt. Government Pleader, appearing for the State, contended that the State Government, should not be precluded from making reference to the Caste Scrutiny Committee beyond the period of two years. It is contended that though the Government would take care of referring the matter as early as possible to the Caste Scrutiny Committee for verification of Caste Certificates of its employees, however, for adequate reasons if there is some delay caused in doing so, and if the reference is made beyond the period of two years, the same should not be rendered invalid only on the ground that the same is beyond the reasonable period of two years. It is further contended that the law laid down and the protection given by the Division Bench in Chandrabhan 's case do not lay down that the reference if made after two years by the employer, is invalid. Similar situation arises in case of Anil Shirpurkar (supra). It is submitted that laying down the mandatory limitation of two years for making reference to the Caste Scrutiny Committee by the employer/Government, would benefit unscrupulous elements who have secured Caste Certificates by playing fraud and it would be unjust to protect the employment of such persons.
13. Ms. Deshpande, learned counsel for the Caste Scrutiny Committee, also adopted the similar line of argument as canvassed by learned AGP for the State, and contended that in view of the new Rules, the Caste Scrutiny Committee is under an obligation to decide the caste claim referred to it by the employer within a period of six months from the date of receipt of such claim and, therefore, the Caste Scrutiny Committee is duty bound to decide the caste claim within the stipulated period.
14. We have given our anxious thought to the issue in question and carefully scrutinized the judgments in Chandrabhan Nandanwar's case (supra) as well as Anil Shirpurkar's case (supra) rendered by the Division Benches of this Court.
15. While construing the law laid down in the judgment, the whole judgment needs to be considered, and not the solitary observations in an isolated paragraph made by the Judges in the Judgment. At the same time, while ascertaining the ratio of the decision, reading of the judgment as a whole, in the light of the questions raised before the Court, forms the ratio, and not any particular word or a sentence or observation, or a particular paragraph of the judgment. The conclusions arrived at and the directions issued are the decisive factors, which would finally determine the law laid down in such judgment. The judgment of the Court, therefore, has to be read in the context of the questions which arise for consideration in the case in which the judgment was delivered and conclusions are arrived at. It will be improper to pick up some observations from some paragraphs and treat such observations as laying down the law in that judgment. Similarly, it is well settled that the conclusion arrived at will demonstrate the reasons adopted for coming to such conclusion and, therefore, while ascertaining ratio of the judgment, conclusions and reasonings will have to be read together to find out the ratio decidendi of the judgment.
16. On the backdrop of the above referred well settled parameters, we will have to scrutinize the judgments of this Court in Chandrabhan Nandanwar's case (supra), Anil Shirpurkar's case (supra) as well as the law laid down by the Apex Court in G. Sudarsan's case (supra). However, before we undertake this deliberation, it will be appropriate to take into consideration the provisions of the Caste Certificates Act, 2000.
17. The definition of the "Caste Certificate" is provided in Sub-section (1) of Section 2 of the Act and means the certificate issued by the Competent Authority to an applicant indicating therein the Scheduled Caste. Scheduled Tribe, De-notified Tribe (Vimukta Jatis), Nomadic Tribe, Other Backward Class or Special Backward Category, as the case may be, to which such applicant belongs. The "Competent Authority" is defined in Sub-section (b) of Section 2 and means an officer or authority authorized by the Government, by notification in the Official Gazette, to issue a Caste Certificate, for such area or for such purposes as may be specified in the said notification and shall include all the Competent Authorities already designated by the Government before coming into force of this Act, having jurisdiction over the area or place to which the applicant originally belongs, unless specified otherwise. Similarly, the definition of "Scrutiny Committee" is provided in Sub-section (k) of Section 2 of the Act, and means the Committee or Committees constituted under Sub-section (1) of Section 6 for the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special backward Category for verification of the Caste Certificate and to perform the function of Scrutiny Committee under this Act.
18. The procedure for obtaining a Caste Certificate is prescribed in Section 3 of the Act, and the Competent Authority, in view of the powers conferred on it vide Section 4 of the Act, after satisfying itself about the genuineness of the claim, can issue a Caste Certificate within such time limit and in such form as may be prescribed or reject the application for reasons to be recorded in writing. Sub-section (2) of Section 4 makes it clear that the Caste Certificate issued by any person, officer or authority other than the Competent Authority shall be invalid and Caste Certificate issued by the Competent Authority shall be valid only subject to verification and grant of Validity Certificate by the Scrutiny Committee. In other words, the Certificate issued by the Competent Authority will have to undergo the scrutiny by the Scrutiny Committee and the validity of such Caste Certificate would depend upon the outcome of the verification of such certificate by the Scrutiny Committee.
19. That, Sub-section (1) of Section 6 of the Act postulates that Government shall constitute by notification in the Official Gazette, one or more Scrutiny Committee(s) for verification of the Caste Certificates issued by the Competent Authorities under Sub-section (1) of Section 4 specifying in the said notification the functions and the area of jurisdiction of each of such Scrutiny Committee or Committees. That Sub-section (2) of Section 6 contemplates that after obtaining the Caste Certificate from the Competent Authority any person desirous of availing of the benefits or concessions provided to the Scheduled Castes, Scheduled Tribes, De-notified Tribes etc., for the purposes mentioned in Section 3 is required to make an application well in time in such form and in such a manner as may be prescribed, to the concerned Scrutiny Committee for verification of Caste Certificate and for issuance of a Validity Certificate. The benefits of reservation mentioned in Section 3 pertain to either in any pubic employment or for admission into any educational institution or any other benefit under any special provisions made under Clause (4) of Article 15 of the Constitution of India or for the purpose of contesting for elective post in any local authority or in the Co-operative Societies; or for purchase or transfer of land from a tribal land-holder or any other purposes specified by the Government. For the purpose of obtaining these benefits and in view of the requirement of Sub-section (2) of Section 6 of the Act, such person is required to make an application in this regard to the concerned Scrutiny Committee for verification of his caste claim and for issuance of a Validity Certificate. That, Sub-section (2) of Section 6 makes it optional to a person desirous of availing such benefits to make an application in this regard to the Caste Scrutiny Committee, and it is not obligatory for such person to get his Caste Certificate issued by the Competent Authority verified by the Scrutiny Committee before availing such benefits or concessions provided to Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category.
20. On the other hand, Sub-section (3) of Section 6 makes it obligatory to the appointing authority of the Central Government or State Government, local authority, Public Sector Undertakings, educational institutions, Co-operative Societies or any other Government aided institutions to make an application in such form and in such a manner as may be prescribed by the Scrutiny Committee for verification of the Caste Certificate and for issuance of a validity Certificate in case a person selected for appointment with the Government, local authority, Public Sector Undertakings, educational institutions, Co-operative Societies or any other Government aided institutions and who has not obtained such certificate. The plain reading of Sub-section (3) of Section 6 therefore, postulates that it applies to the appointing authorities referred to in this sub-section and there is a statutory obligation cast on them to get the Caste Certificate verified from the Scrutiny Committee of a person who is selected for appointment with such authorities.
21. In the present controversy, we are primarily concerned with the provisions of Sub-section (3) of Section 6 of the Act which requires the Government to refer the Caste Certificate of appointed candidate to the Caste Scrutiny Committee for verification and issuance of Validity Certificate. There is no time prescribed for this purpose under the provisions of the Act and Rules. It is well settled that in such situation, it is the reasonable time within which the employer is required to refer the Caste Certificate for verification. To determine what is the reasonable time, if any, prescribed for this purpose by the Judgments in Chandrabhan Nandanwar's case (supra) as well as Anil Shirpurkar's case (supra) and also to determine the consequences of a failure to make reference within such time, we will have to go through the judgments in Chandrabhan Nandanwar's case (supra) as well as Anil Shirpurkar's case (supra).
22. Before we undertake the scrutiny of the judgment in Chandrabhan Nandanwar's case (supra), it would be appropriate to consider few relevant facts involved in the case. In the said case, the petitioner entered the Government service initially under Order, dated 10-8-1976 and later on came to be selected by the State Public Service Commission and the order of appointment was issued on 9-7-1992. The petitioner received the order on or about 25-4-1996, whereby his services were terminated because his caste claim has been invalidated. In view of these facts, the Division Bench in Chandrabhan Nandanwar's case (supra) in Para 6 observed thus :
"6. In this background, if at all the authorities wanted to scrutinise the claim, it is expected that it should have been done as early as possible and certainly before the confirmation order is issued. This is not to say issuance of confirmation order will preclude the Government from examining the claim, if in a given case circumstances is so warranted."
The Division Bench in Chandrabhan Nandanwar's case in Para 8 has observed thus :--
"8. The hardship of a conformed employee under the circumstances can well be understood. It is therefore observed that in a case where the Government has reserved its right to scrutinise the caste claim, it shall do so within reasonable time and in absence of any time limit fixed, we feel that reasonable limit should be two years. This limit we are fixing on the basis that ordinarily as a matter of rule while appointing a Government servant, the State Government puts them on probation for a period of two years."
The direction issued by the Division Bench based on final conclusion is reflected in Para 10. The same is thus :
"10. We therefore direct that if the authorities want to scrutinise his caste claim, they shall do so within a period of three months from the date of receipt of this order in order to see that agony of the petitioner is not prolonged any further."
23. The observations in Paragraphs 6, 8 and 10 made by the Division Bench in Chandrabhan Nandanwar's case need to be understood in its right perspective and cannot be read in isolation. It is, no doubt, true that the observations made by the Division Bench in Paragraph 8 of Chandrabhan Nandanwar's case (supra) do show that where the Government has reserved its right to scrutinize the caste claim, it shall do so within the reasonable time and in absence of any time limit fixed, the reasonable time should be two years and this limit is prescribed keeping in view the period of probation which is normally of two years before the employee is confirmed in the Government service. The perusal of these observations, in our view, neither suggest, or convey that the employer cannot make a reference to the Caste Scrutiny Committee after the period of two years, since it is beyond the period of probation. All it means is that the employer, as a matter of rule, is expected to make a reference to the Caste Scrutiny Committee within a period of two years, which also is a period of probation. The observations in Paragraph 8 nowhere prescribe a mandatory limit of two years, nor do they create an embargo or prohibition which completely prevents the employer from making reference to the Caste Scrutiny Committee beyond the period of two years. It only implies that as a matter of rule the employer should refer the matter to the Caste Scrutiny Committee for verification of the case claim of its employee within the reasonable period of two years, and nothing more. These observations by their very nature show that it is the legitimate expectation that the employer should refer the Caste Certificate for scrutiny to the Caste Scrutiny Committee within the period of two years and it does not amount to prescribing the positive limit of two years in this regard. Moreover, these observations in Para 8 will have to be read with the observations made in Para 6. The observations in Para 6 in Chandrabhan Nandanwar's case (supra) would make this aspect clear. The observations in Para 6, in no uncertain terms, postulate that the employer is not precluded from examining the caste claim of its employee, if in a given case circumstances so warrant, beyond the period of two years. Plain reading of these observations nowhere even suggests that the Division Bench wanted to impose a specific mandatory limit of two years for sending Caste Certificate for verification to the Caste Scrutiny Committee, nor does it imply that the Government/employer ceases to have jurisdiction to refer the Caste Certificate to the Caste Scrutiny Committee for verification beyond the period of two years. On the other hand, the right of the employer/Government, to get the caste verified from the Caste Scrutiny Committee beyond the period of two years is kept open. The final conclusion arrived at by the Division Bench in Chandrabhan Nandanwar's case can be ascertained in view of the direction given in para 10 which would show that the Division Bench never intended to take away right of the employer for making reference beyond the period of two years. On the other hand, the observations in para 10 of the Judgment in Chandrabhan Nandanwar's case (supra) demonstrate that the employer/authority was permitted to get the caste claim verified from the Caste Scrutiny Committee if it so desires, beyond the period of two years.
24. In Chandrabhan Nandanwar's case, the observations in Paras 6, 8 and 10 will have to be read together vis-a-vis the question raised and involved in the said case. The question involved undoubtedly was that in absence of any specific time prescribed, what should be the reasonable time to refer the caste claim of the employee by the employer to the Caste Scrutiny Committee for verification of his Caste Certificate. While answering this question, the above referred observations in Paras 6, 8 and 10 in the Judgment of Chandrabhan Nandanwar's case (supra) would show that as a matter of rule, the employer is expected to refer the caste claim of its employee to the Caste Scrutiny Committee within the reasonable period of two years. However, it does not preclude the employer from referring the caste claim of its employee for verification to the Caste Scrutiny Committee beyond the period of two years. It is, therefore, completely misconceived to hold that in Chandrabhan Nandanwar's case (supra), the Division Bench lays down the mandatory time limit of two years for sending the caste claim of the employee by the employer to the Caste Scrutiny Committee and if the reference is made beyond the period of two years by the employer, the same would be bad in law or violative of Article 14 of the Constitution.
25. Similarly, we have carefully scrutinized the entire judgment of the Division Bench, presided over by the Hon'ble Chief Justice in Anil Shirpurkar's case (supra). Perusal of the Judgment would show that the contentions canvassed by the learned counsel for the petitioner in Anil Shirpurkar's case (supra) were two-fold (1) that the employer has not initiated proceedings for verification of the caste claim within the reasonable time. Therefore, the order of termination, dated 9th July, 2002, passed by the employer, was colourable exercise of power of the part of the employer, and (2) that the Committee, which was constituted by the State, was not an "Expert Committee", as directed by the Hon'ble Supreme Court in Madhuri PatiVs case . There is yet another contention which was canvassed by the learned counsel for the petitioner that the petitioner belonged to Dhoba community, which is a Scheduled Tribe and a great prejudice would be caused to the petitioner if at this stage his services were to be terminated, as he was age barred for Government and semi-Government employment. On the backdrop of these legal contentions, the Division Bench, presided over by the Hon'ble Chief Justice in Anil Shirpurkar's case (supra) made the following observations in Para 10 :--
"10. In the facts and circumstances of the case, it is not necessary to go into a larger question. It is clear from the record and not contravened by the respondents that the petitioner joined the services of respondent No. 3 on August 9, 1994. He completed the probation period of two years and had been made regular with effect from 8th August, 1996. It is only in July, 2001, i.e., after about seven years of service and after about five years of regularization that the proceedings were initiated. The question, therefore, is whether such a period can be said to be "reasonable period" to initiate proceedings against the petitioner."
26. Similarly, the observations made by the Division Bench in Para 11 are relevant for the issue in question, which reads thus :--
"11. In the leading decision in State of Gujarat v. Patel Raghav Natha and Ors., , the Supreme Court held that the power of revision must be exercised within reasonable period. So far as reasonable period is concerned, it depends upon the scheme of the Act, nature of action likely to be taken, consequences likely to ensue and such other relevant facts and circumstances. Even with regard to caste certificate, this Court in Chandrabhan Yamaji Nandanwar v. Director of Health Services, Maharashtra State, Bombay and Ors., 1999(1) Mh.L.J. 536 held that in case of caste scrutiny certificate, the power must be exercised within reasonable time and according to the Division Bench of this Court, such time should be about two years as that is the period of probation. If a person is to remain on probation period of two years, unless he completes the period of probation, proceedings could be initiated. Since the proceedings were initiated after the period of two years, it was held not be reasonable period."
The Division Bench finally concluded the issue and those conclusions are reflected in Paras 12, 13 and 14, which are quoted below :--
"12. In the facts and circumstances of the case, in our opinion, the proceedings cannot be said to have been initiated within reasonable time. It is undisputed that the petitioner was appointed in 1994 and after the period of probation, he was regularized in 1996. Neither the proceedings were initiated in 1994 nor in 1996 but after five years of completion of probation period i.e., in July, 2001."
"13. In our opinion, therefore, it cannot be said that the proceedings were initiated within reasonable period. Only on that ground, the petition is allowed. The order dated 9th of July, 2002 is hereby quashed and set aside."
"14. Since the petition is allowed on the ground that the power of initiation of proceedings was not exercised within 'reasonable period', the action taken and order passed deserve to be quashed. We may, however, make it clear that we may not be understood to have upheld the validity of Scheduled Tribe of the petitioner."
27. We have given our anxious thought to the above referred observations made by the Division Bench in Anil Shirpurkar's case (supra). It is, no doubt, true that in Para 11, the Division Bench has made a reference to the judgment of the Apex Court as well as the analogy enumerated therein vis-a-vis the 'reasonable time' as equated with the power of revision by the Apex Court in the said case. Except this passing reference, there is nothing to show in the entire judgment rendered by the Division Bench in Anil Shirpurkar's case that while construing the doctrine of 'reasonable time' in Anil Shirpurkar's case, the Division Bench in substance relied on the observations of the Apex Court in case of State of Gujarat v. Patel Raghav Natha and Ors. (supra). On the other hand, the observations in para 11 would reveal that the Division Bench has held that the doctrine of 'reasonable period' depends upon the scheme of the Act, nature of the action likely to be taken, consequences likely to ensue and such other relevant facts and circumstances. These specific observations clearly demonstrate that the Division Bench in Anil Shirpurkar's case (supra), in order to hold what is reasonable time, considered the scheme of the Caste Certificates Act, 2000, consequences likely to ensue if the order of termination is issued beyond the period of two years, nature of action likely to be taken and such other relevant facts and circumstances, as evident from the observations made by the Division Bench in Para 12 of its Judgment. It is, therefore obvious that the Division Bench in Anil Shirpurkar's case cannot be said to have placed reliance for construing what is reasonable time on the analogy emerging from the judgment of the Apex Court in case of State of Gujarat v. Patel Raghav Natha and Ors. (supra). In the said case, the Supreme Court was considering the provisions of the Bombay Land Revenue Code, 1879, and in Para 12 of its Judgment, the Supreme Court has observed thus :--
"12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the Legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i.e., more than a year after the order and it seems to us that this order was passed too late.
These observations of the Apex Court clearly demonstrate that in the case before the Apex Court, the Apex Court, in view of scheme of Sections 211 and 65 of the Bombay Land Revenue Code, 1879, as well as keeping in view the legislative intent, was of the view that the reasonable time within which the Commissioner must act was three months. Since what is reasonable time in each case depends upon the facts and circumstances of that case vis-a-vis the scheme of the Act, nature of action likely to be taken, consequences likely to ensue and such other relevant facts and circumstances of each case, there cannot be any common yardstick to measure what is reasonable time in all situations and circumstances and, therefore, the conclusions arrived at by the Division bench in Anil Shirpurkar's case (supra) and reflected in Paras 12, 13 and 14 would demonstrate that the same are reached in view of the facts and circumstances of the case and the reasonable period is construed only in view of the scheme of the Caste Certificates Act, 2000, nature of action likely to be taken, consequences likely to ensue and such other facts and circumstances. There is no scope in view of the above referred observations made by the Division Bench in Anil Shirpurkar's case, to hold that the Division Bench equated power of the Government/ employer to make reference to the Caste Scrutiny Committee with that of the revisional power, nor it can be said that the Division Bench in Anil Shirpurkar's case (supra) wanted to equate the power of the employer to make reference to the Caste Scrutiny Committee with that of revisional power. The Division Bench, presided over by Justice Daga in Para 16 of the order of reference, dated 3rd February, 2003, was not justified to come to the conclusion that the Division Bench in Anil Shirpurkar's case (supra) equated the power to make a reference to the Caste Scrutiny Committee with that of revisional power, nor the Division Bench in Anil Shirpurkar's case termed such power of making a reference to be revisional power. There was no need to equate the power to make reference to the Caste Scrutiny Committee with that of the revisional power, nor there was any adjudication necessary in this regard and, therefore, the conclusion arrived at in this regard by the Division Bench in Vijay Sukhdeo Naydekar's case is not relevant for the issue under reference.
28. On a careful reading of the Judgment and the observations made in the above referred paragraphs by the Division Bench in Anil Shirpurkar's case (supra), it is apparent that the Division Bench, on the basis of the scheme of the Act, nature of action likely to be taken, consequences likely to ensue and such other relevant facts and circumstances, has held that the reasonable period should be of two years from the date of appointment and the same is equated with that of the period of probation, which is normally of two years. However, it is nowhere concluded, nor held by the Division Bench in Anil Shirpurkar's case that a reference made by the employer beyond the period of two years would be either bad in law or order passed by the Caste Scrutiny Committee pursuant to such reference would be null and void. It is, therefore, difficult for us to hold that a reference made beyond the period of two years by the employer would be invalid in law and order passed by" the Caste Scrutiny Committee pursuant to such reference would be null and void.
29. In Anil Shirpurkar's case (supra), the caste claim of the petitioner was invalidated by the Caste Scrutiny Committee and the order of termination was issued on the ground of invalidation of the caste claim of the petitioner. The observations of the Division Bench made in Para 14 are relevant which are again reproduced for ready perusal. The same are thus :--
"We may, however, make it clear that we may not be understood to have upheld the validity of the Scheduled Tribe of the petitioner."
These observations, in no uncertain terms, imply that the initiation of proceedings of reference after two years was not invalid, nor there can be any presumption, factual or otherwise, in respect of validating the caste claim of such employee. On the other hand, these observations made by the Division Bench in Anil Shirpurkar's case (supra) go to show that quashing of order of termination on the ground of initiation of proceedings for reference beyond the period of two years does not amount to upholding the validity of the caste claim of the petitioner. The action of quashing the order of termination is solely based on the ground of doctrine of 'reasonable time", and does not render the reference made by the employer beyond the period of two years either invalid, nor caste claim gets validated which is apparent from these findings, The observations made by the Division Bench in Anil Shirpurkar's case, therefore, do not suggest that the reference made by the employer beyond the period of two years to the Caste Scrutiny Committee is either impermissible, nor such proceedings are vitiated and, therefore, in Anil Shirpurkar's case the Division Bench has not disturbed the findings one way or the other recorded by the Caste Scrutiny Committee.
30. We cannot lose sight of the fact that the Judgment of the Division Bench in Anil. Shirpurkar's case did not decide the validity of the order of the Caste Scrutiny Committee, nor it had upheld the validity of the Scheduled Tribe claim of the petitioner, which further demonstrates that neither proceedings of reference though made after two years can be said to be invalid, nor the order passed on such reference by the Caste Scrutiny Committee can be said to be null and void. It is, no doubt, true that this Court in extraordinary jurisdiction under Article 226 of the Constitution is entitled to consider validity of the order of termination of the Government employee based on the ground of order of invalidation of his caste claim by the Caste Scrutiny Committee on the basis of the doctrine of 'reasonable time', and is also entitled, in a given case, for adequate reasons, to pass appropriate orders so far as the validity of the order of termination issued by the employer is concerned. However, in our considered view, no declaration can be given by this Court while exercising power under Article 226 of the Constitution of India, declaring a person belonging to a particular reserved category if his caste claim is invalidated on merits by the Caste Scrutiny Committee and, therefore, by necessary implication, the proceedings for reference initiated by the employer beyond the period of two years cannot be said to be either invalid in law, nor the order passed by the Caste Scrutiny Committee pursuant to such reference is null and void.
31. A careful consideration of the Judgments in cases of Chandrabhan Nandanwar and Anil Shirpurkar (supra), in our considered view, do not lay down a law that a reference cannot be made by the employer to the Caste Scrutiny Committee beyond the period of two years. It only mandates that it is an important obligation on the part of the employer to make a reference within a period of two years to the Caste Scrutiny Committee as a matter of rule in view of the consequences likely to ensue from delay in doing so. It does not lay down that a reference, if made beyond the period of two years, is either invalid, nor the declaration pursuant to such reference made to the Caste Scrutiny Committee would be null and void. In the circumstances, therefore, the contentions, which were canvassed by the counsel for the petitioner before the Division Bench in case of Vijay Sukhdeo Naydekar, were misconceived and the opinion expressed by the Division Bench in this regard is incorrect.
32. Similar legal proposition emerges from the unreported decision, dated 13-8-2002, passed in Writ Petition No. 3994 of 2002 Prakash Pralhad Ingle v. Kalyan Dombivali Municipal Corporation and Ors. of the Division Bench of this Court, wherein the Division Bench has relief upon the law laid down by this Court in Chandrabhan Nandanwar's (supra) as well as Anil Shirpurkar's case (supra) and set aside the order passed by the employer on the ground that the reference was made by the employer to the Caste Scrutiny Committee after eleven years of appointment of the petitioner. However, in the last paragraph of the Judgment, it is observed thus :--
"The learned counsel for the petitioner gives an undertaking on behalf of the petitioner that in future the petitioner shall not claim any benefit as a member of the Scheduled Tribe. The undertaking is accepted. Respondents are granted eight weeks' time to comply with this order."
The observations in the last paragraph made by the Division Bench in Prakash Pralhad Ingle's case (supra) clearly demonstrate that if the caste claim of the employee is referred to the Caste Scrutiny Committee even after the reasonable period of two years and if the Caste Scrutiny Committee invalidates the caste claim of the petitioner, such order of Caste Scrutiny Committee cannot be rendered null and void merely on the ground that the reference was made by the employer to the Caste Scrutiny Committee beyond the reasonable period of two years and, therefore, the analogy adopted and the law laid down by the Division Bench in Prakash Pralhad Ingle's case (supra) is similar to that of the law laid down by the Division Benches of this Court in Chandrabhan Nandanwar's case (supra) as well as Anil Shirpurkar's case (supra). Therefore, in our considered view, there is no inconsistency in the views expressed by the respective Division Benches in this regard.
33. On the backdrop of the law laid down by the Division Benches in Chandrabhan Nandanwar's case (supra), Anil Shirpurkar's case (supra) and Prakash Pralhad Ingle's case (supra), no doubt, the common proposition of law, which emerges, is that the reasonable period for making reference by the employer to the Caste Scrutiny Committee of the caste claim of employee is of two years, which is proportionate to the period of probation. However, the right of the employer to refer the caste claim beyond the period of two years is neither taken away, nor such reference would be invalid and any order passed by the Caste Scrutiny Committee on such reference shall not be null and void. Similarly, it is well settled that the doctrine of 'reasonable period' needs to be considered in each case on the basis of the scheme of the Act, nature of action likely to be taken, consequences likely to ensue and such other relevant facts and circumstances involved in that case and, therefore, there cannot be a common yardstick to measure the reasonable period in all facts and circumstances and the same would necessarily depend upon the facts and circumstances of each case. However, as a rule of prudence and in order to have some uniformity in this regard, we are of the considered view that the caste claim of the person, who has secured employment in the Government or semi Government bodies from the reserved category and under the scheme of the Caste Certificates Act, 2000, is required to be referred for verification to the Caste Scrutiny Committee constituted under the provisions of the Act within the reasonable period of two years from the date of his appointment, since the retention or continuation and/or confirmation of such employee in the employment would necessarily depend upon the outcome of the verification proceedings before Caste Scrutiny Committee. The primary responsibility is that of the employer who has to refer the caste claim to the Caste Scrutiny Committee. In our view, this obligation, the employer has to discharge as early as possible after the person is appointed in the service from the reserved category on the basis of the Caste Certificate issued by the Competent Authority. The employer need not wait till the expiry of the period of two years. On the other hand, the employer/Government, is required to refer the caste claim to the Caste Scrutiny Committee no sooner the order of appointment is issued by the Government. The entire endeavour in laying down the period of two years as a reasonable period is to avoid civil and penal consequences which are likely to ensue from the outcome of the verification proceedings before the Caste Scrutiny Committee. So far as the time for scrutiny by the Caste Scrutiny Committee is concerned, under the scheme of the Act and Rules, it is incumbent on the Caste Scrutiny Committee to decide the same within the period of six months from the receipt of such reference. The period of probation normally is of two years and it is only after successful completion of this period by the employee, the rights of permanency are conferred on him by the employer/State Government, and, therefore, before such rights are cyrstallized in favour of the employee and in order to avoid uncalled for situation as well as civil and penal consequences, it is in the interest of both the Department/employer as well as employee that the process of scrutiny, i.e., sending of caste claim by the employer to the Caste Scrutiny Committee and taking a decision in this regard by the Caste Scrutiny Committee should ordinarily be over within a period of two years. In other words, the employer, as a matter of rule, is required to refer the caste claim to the Caste Scrutiny Committee as early as possible and need not wait till the expiration of two years. However, we make it clear that the right of the employer of making a reference after the period of two years is neither taken away, nor such reference would be invalid in law and, therefore, the order passed by the Caste Scrutiny Committee pursuant to such reference shall not be null and void. We want to observe here that if the reference is not made by the Officer-in-Charge of the Department of the State Government, or employer within the reasonable period to the Caste Scrutiny Committee, the State Government, shall be entitled to hold a Departmental inquiry against such officer and shall also be entitled to take action according to law if it is proved that the delay is caused for no apparent reason and is due to negligence of such officer.
34. Another aspect, which needs consideration, is that since it is already laid down that the reference made by the employer beyond the period of two years is not invalid in law and the order passed by the Caste Scrutiny Committee pursuant to such reference is not null and void and since job is secured by the employee from the reserved category, the order of termination of the employee based on the ground of invalidation of the caste claim by the Caste Scrutiny Committee in a given case may not be ipso facto invalid. However, while considering each case on its merits and while exercising jurisdiction under Article 226 of the Constitution of India, it will be open to this Court to consider the consequences ensuing from such order of the Caste Scrutiny Committee which is based on the delayed reference made by the employer/government, beyond the period of two years and this Court will be entitled to decide the validity of the order of termination keeping in view the mandate of Articles 14, 15(4), 16(1) and 16(4A) of the Constitution of India.
35. Another aspect, which needs our consideration, is that the Division Bench, presided over by Mr. Justice Daga in Vijay Naydekar's case, has observed in its order of reference, dated 3-2-2003, that in view of the law laid down by the Apex Court in G. Sudarsan's case (supra), no time limit for making reference to the Caste Scrutiny Committee can be prescribed by a judicial order and the relevant observations in this regard are in Paras 2 and 3 of the Judgment of the Apex Court, which read thus :--
"2. We have gone through the reasoning of the Tribunal. We find that the same are perfectly justified. It is vehemently contended by the learned counsel for the petitioner, Shri Srinivasan, that a certificate was issued in 1956 by the competent authority stating that the petitioner belonged to the community recognised as a Scheduled Caste and the petitioner's grandfather belonged to Thotti Naicken community and he continued in office for a period of 30 years. At this belated stage, it cannot be held that he is not a Scheduled Caste and cannot be called upon to prove it once over."
"3. We cannot appreciate this stand taken by the petitioner. It is for the petitioner to prove that he belongs to the Scheduled Caste specified in the Presidential Notification in relation to the State to which he belongs and was born. In SSLC Register, the petitioner did not claim his status as a Scheduled Caste. On the other hand, his father's name was mentioned as Ganga Naidu and he claimed to be a Hindu. In those circumstances, the certificate obtained from the Revenue Authorities in the year 1956 is obviously a false certificate."
The Division Bench in Vijay Sukhdeo Naydekar's case, on the basis of the above referred observations of the Apex Court came to the conclusion that the law laid down by this Court in Chandrabhan Nandanwar's case (supra), Anil Shirpurkar's case (supra) and Prakash Pralhad Ingle's case (supra) is inconsistent with the law laid down by the Apex Court, since all these decisions render references made by the employers of the caste claims of their employees beyond the period of two years from the date of appointment to the Caste Scrutiny Committee invalid in law. We have considered this aspect and already observed that no such proposition of law is laid down by this Court in cases of Chandrabhan Nandanwar (supra), Anil Shirpurkar (supra) as well as in Prakash Pralhad Ingle (supra) and have also expressed our opinion is this regard and, therefore, the conclusion drawn by the Division Bench in the case of Vijay Sukhdeo Naydekar in this regard is misconceived.
36. So far as the decision of the Apex Court in case of G. Sudarsan (supra) is concerned, it deals with the distinct situation and operates in a different area. This aspect needs to be visualized in view of the following two separate situations :--
There are two kinds of situations. One is that the Caste Certificate is issued by the Competent Authority prima facie being satisfied about the claim to be true, but the Scrutiny Committee after verification and scrutiny of the caste claim invalidates the same. Another situation is that where the Certificate obtained by a candidate from the competent authority by playing fraud or submitting false evidence before the Competent Authority and the same is invalidated by the Caste Scrutiny Committee on the ground of fraud.
37. The doctrine of 'reasonable time' shall operate only in respect of the first situation as referred to hereinabove. So far as the latter situation is concerned, wherein a Caste Certificate obtained from the Competent Authority is based on fraud, the same is quite distinct and different. It is well settled that whoever for whatever purpose derives benefit by playing fraud, such benefits, such order, direction can always be cancelled or revoked by the appropriate authority at any point of time, since the entire transaction of obtaining benefits is based on a fraud which renders the whole transaction ab initio invalid and, therefore, question of applying the doctrine of 'reasonable time' in such situation does not arise.
38. The cases of Caste Certificates obtained by fraud or the false Certificates are governed by Section 10 of the Caste Certificates Act, 2000 and under the scheme of this Act, such persons are liable to be punished for committing such offence as per provisions of Section 11 of the said Act. The offences under this Act are made cognizable and not bailable and, therefore, at any point of time, subject to any limitation under the Code of Criminal Procedure, appropriate authority is entitled to take penal action against the person concerned for committing a fraud in obtaining a false Caste Certificate or fabricating a false certificate as and when such fraud is detected. Even under the provisions of the Act and Rules, no limitation is prescribed in this regard. So far as G. Sudarsan's case (supra) is concerned, we want to reiterate the relevant observations made in Para 3 by the Apex Court for ready reference, which reads thus :
"In these circumstances, the Certificate obtained from the Revenue Authorities in the year 1956 is obviously a false Certificate,"
These observations clearly demonstrate that the Certificate, which was obtained by the petitioner in that case, was by playing fraud and, therefore, the Supreme Court has categorically observed that the said was the false certificate and consequently the order of the Tribunal was held to be valid. The ratio laid down by the Apex Court in G. Sudarsan's case operates in a situation of fraud played by the person in obtaining Caste Certificate, and the same is not attracted in the normal set of situations faced and considered by the Division Benches in cases of Chandrabhan Nandanwar (supra), Anil Shirpurkar (supra) and Prakash Pralhad Ingle (supra). The ratio laid down by these Division Benches operates in a different situation and, therefore, question of conflict between the views expressed by these Division Benches of this Court with that of the view expressed by the Apex Court in G. Sudarsan's case (supra) does not arise. Even otherwise, we have already observed that the doctrine of 'reasonable time of two years' is not mandatory in nature and is a rule of prudence as laid down by the Division Benches of this Court and, therefore, even from this point of view, there is no inconsistency as such with the judgment of the Apex Court in G. Sudarsan's case (supra). We feel it necessary to observe that the question of Caste Certificate obtained by fraud or misrepresentation as well as a false Certificate was never the issue before the Division Benches of this Court in cases of Chandrabhan Nandanwar (supra), Anil Shirpurkar (supra) and Prakash Pralhad Ingle (supra) and, therefore, there was no occasion for the Division Benches to express any opinion in this regard. In fact, this was not the issue at all involved in any of the cases decided by the Division Benches referred to hereinabove and, therefore, there was no occasion for the Division Bench in case of Vijay Sukhdeo Naydekar to observe in the order of reference, dated 3-2-2003, that "if the employer discovers fraud and seeks to initiate action, can the employer be told that though the conditions of service do not limit the employer from taking action, because of judicial embargo, the employer, who may be within his jurisdiction to take action, cannot do so, since the same is beyond the reasonable period of two years." These observations made by the Division Bench, presided over by Mr. Justice Daga, are of no consequence, since the Division Benches in cases of Chandrabhan Nandanwar (supra), Anil. Shirpurkar (supra), Prakash Pralhad Ingle (supra) neither had an occasion to consider the case involving fraud and misrepresentation, nor were required to express their opinion in this regard. The opinion, which is formed by the Division Bench in Vijay Sukhdeo Naydekar's case (supra) that the view expressed by the Division Benches in Chandrabhan Nandanwar's case (supra), Anil Shirpurkar's case (supra), Prakash Pralhad Ingle's case (supra) is inconsistent with the law laid down by the Apex Court in G. Sudarsan's case (supra) is, therefore, not proper, since both the situations are entirely different and the judgments of the Apex Court in G. Sudarsan's case (supra) as well as Division Benches of this Court operate in different situations. Even otherwise, we have made it clear that reference made by the employer of the caste claim of its employee beyond the period of two years, is not either invalid, nor the order passed by the Caste Scrutiny Committee on such reference is null and void irrespective of the fact that whether the Caste Certificate obtained by the employee from the Competent Authority is by playing fraud or otherwise and, therefore, the question of the ratio laid down by the judgments of different Division Benches of this Court in this regard, referred to hereinabove, cannot be said to be inconsistent with the ratio laid down by the Apex Court in G. Sudarsan's case (supra).
39. Another Division Bench of this Court in Writ Petition No. 1598 of 2003 in case of Smt. Uma Jamunalal Joshi v. State of Maharashtra and two others, vide reference order, dated 17-4-2003, referred the matter to us in view of the decision of the Apex Court in Collector of Central Excise, Jaipur v. M/s Raghuvar (India) Ltd.
., as well as the decision in G. Sudarsan v. Union of India (supra), by observing that it is possible to hold the decision in case of Chandrabhan Nandanwar (supra) to be per incuriam and further observed in the order of reference that since the Division Bench in another reference order, dated 3-2-2003, has already requested the Hon'ble Chief Justice to refer the matter to the Larger Bench, the Division Bench in Smt. Uma Joshi's case (supra) also made a similar request and, therefore, the case of Smt. Vma Jamunalal Joshi is also before us. It will be appropriate to reproduce the observations of the Division Bench, presided over by Mr. Justice R. M. S. Khandeparkar in case of Smt. Vma Jamunalal Joshi (supra), which read thus :--
"11. Undoubtedly, it is well settled law that where is no limitation is prescribed, the act has to be performed within reasonable time. However, as regards the reasonable time there cannot be any straight jacket formula. It would depend on facts of each case. In a given case perhaps a period of two years may be a sufficient and reasonable period, whereas in another case even a period of twenty years may not be reasonable and sufficient period. The Apex Court had in fact while disposing the matter in Madhuri Patil's case taken a judicial note of the fact that the ineligible and spurious persons who falsely gains entry, resorts to dilatory tactics and hurdles in completion of enquiry by Scrutiny Committee. Bearing this in mind therefore, there cannot be a general rule as such as regards the period within which the caste claim can be scrutinized. It will all depend on facts of each case."
40. In order to appreciate the view expressed by the Division Bench in Smt. Vma Joshi's case (supra), we have carefully perused the entire Judgment and it appears to us that the Division Bench adopted a similar approach as adopted by the Division Bench, presided over by Mr. Justice Daga in Writ Petition No. 786 of 2002. In respect of the case of fraud committed by the employee while obtaining a Caste Certificate from the Competent Authority, the Division Bench in Smt. Vma Joshi's case (supra), all along, is of the view that the unscrupulous elements in the society and vested interests in the Government, at times, in collusion with each other on various occasions, were able to hoodwink the authorities and secured jobs which are essentially reserved for the reserved categories in spite of knowing that actually they do not belong to such categories. It is further observed in the order of reference by the Division Bench that it will not be possible either at the time of entry of the person in Government employment or even thereafter on account of various tactics which may be played by the concerned person to know that the employee has been able to obtain a Caste Certificate either by misleading the concerned authorities or by playing fraud in that regard. The Division Bench lastly observed that many a times the said facts are revealed much after confirmation of employee and long after completion of probation period. So far as the above referred view expressed by the Division Bench in Smt. Vma Joshi's case is concerned, we have already made it clear that the cases of fraud fall in the altogether different category and in such situation question of applying limitation for making reference in this regard does not arise and, therefore, there is no inconsistency in the views of the Division Benches of this Court in the cases referred to hereinabove. However, these aspects in an appropriate case for adequate reasons can be examined and considered by this Court while exercising power under Article 226 of the Constitution of India as and when such situation arises.
41. It is unjust to comprehend that all those who obtain Caste Certificates from the Competent Authorities in order to secure jobs in the Government or semi-Government organizations, obtain such Certificates by playing fraud. There may be some percentage of persons, who may be indulging in such dubious tactics. However, every person obtaining such Certificate from the Competent Authority cannot be branded as fraudulent, nor it will be proper to comprehend that certificate is obtained by playing fraud. This generalization, in our view, is impermissible and therefore, the doctrine of 'reasonable time' for referring the Caste Certificate by the employer to the Caste Scrutiny Committee would apply except in the cases of fraud and it will be open to this Court while exercising power under Article 226 of the Constitution of India to pass appropriate order taking into consideration the delay caused in making reference to the Caste Scrutiny Committee by the employer as well as time consumed by the Caste Scrutiny Committee to dispose of the caste claim.
42. The Division Bench in Smt Uma Joshi's case (supra) considered the observations made by the Apex Court in Collector of Central Excise, Jaipur v. Ravi India Ltd. (supra), which are thus :--
"Any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period of so stipulated has the consequences of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor, it is hot for the courts to import any specific period of limitation by implication, where there is really none, though courts may always hold when any such exercise of power had the effect of disturbing the rights of a citizen that it should be exercised within a reasonable period."
43. The Division Bench on the basis of these observations in Para 6 observed thus :--
"If the ruling of the Apex Court in the above case is to be applied in its true spirit then any imposition of period of limitation and that to of two years of period for invoking the powers of scrutiny committee for scrutiny of the caste claim would virtually result in denying the rights of the citizens and particularly to those citizens for whose benefit the specific provisions are made in relation to the reservations of seats either in employment or in educational field."
The observations made by the Apex Court in case of Central Excise, Jaipur (supra), though apparently convey that it is not for the Courts to impose any specific period of limitation by implication, however, the Apex Court further held that where there is no period of limitation, in such situation Court should hold that it is the reasonable period within which power is required to be exercised, failing which it would affect the rights of the citizens. In other words, it means that if there is no limitation prescribed by the Act or Rules for such specific purpose, then it is the reasonable period within which the concerned has to act and it is well settled that what is reasonable period, undoubtedly would depend upon the scheme of the Act, nature of action likely to be taken, consequences likely to ensue and all other relevant facts and circumstances involved in each case and after taking into consideration all these factors in a given case, the Courts are not precluded from holding what would be the reasonable time in a given case. The doctrine of reasonable time in cases of Chandrabhan Nandanwar (supra), Anil Shirpurkar (supra) and Prakash Ingle (supra) is construed on the basis of scheme of the Act, nature of action likely to be taken, consequences likely to ensue etc., which is permissible even as per the judgment of the Apex Court. Similarly, we have already held that the question of applying limitation of time for making a reference in cases of fraud does not arise.
44. For the reasons stated above, we are of the view that there is no inconsistency as such in respect of the findings recorded by the Division Benches of this Court in the above referred decision, nor a conclusion can be arrived at that the law laid down by the Apex Court in Collector of Central Excise, Jaipur (supra) and G. Sudarsan (supra) renders the case of Chandrabhan Nandanwar per incuriam as observed by the Division Bench, presided over by Mr. Justice R. M. S. Khandeparkar in Smt. Uma Joshi's case (supra).
45. In the present case, though an argument is advanced by Mr. Madkholkar, learned counsel for the petitioners in Writ Petition Nos. 77 of 1996 and 262 of 1996, other learned counsel appearing for the respective petitioners in other Writ Petitions have adopted the same. Mr. Madkholkar has rightly contended that what is reasonable period would depend upon the facts and surrounding circumstances and relevant factors involved in each case and justified in further contending that the Division Bench in Chandrabhan Nandanwar's case (supra) does not preclude the State Government/employer from making a reference to the Caste Scrutiny Committee of the caste claim of the employee beyond the period of two years. So far as other contentions canvassed by Mr. Madkholkar in respect of protection provided to the employee under Government Resolutions or orders of the Courts whereby their rights are crystallized and perfected are concerned, the same do not fall within the ambit of the issue under reference and, therefore, we have not adjudicated upon this aspect, nor we have expressed any opinion in this regard. The same is, therefore, kept open. Mrs. Dangre, learned Asstt. Government Pleader, also argued on the same lines as contended by Mr. Madkholkar, and canvassed that though the State is not precluded from referring the caste claims of its employees beyond the period of two years, the Government would refer the caste claims to the Caste Scrutiny Committees for verification as early as possible from the dates of appointments of employees who are appointed and availing the benefits under the policy of reservation.
46. So far as the right of equality before law and equal opportunity of employment in the State as embodied under Articles 14 and 16 of the Constitution as well as provisions of Article 15(1)(2) of the Constitution, which prohibits discrimination on the ground of caste etc., so also Articles 15(4) and 16(4-A) of the Constitution are concerned, the Division Benches in Chandrabhan Nandanwar's case (supra), Anil Shirpurkar's case(supra) and Prakash Pralhad Ingle's case (supra) did not consider this aspect while considering the validity of the orders of termination of the petitioners on the ground of reasonable period white exercising power under Article 226 of the Constitution and, therefore, no view in this regard is expressed in any of these cases. In absence thereof, question of any inconsistency of views in this regard does not arise. However, we must express that while considering the validity of the order of termination of an employee issued by the Government or employer on the ground of invalidation of his/her caste claim by the Caste Scrutiny Committee, the Division Bench is also required to consider, the mandate of Articles 14, 15(4) and 16(4-A) of the Constitution while exercising power under Article 226 of the Constitution of India and, therefore, we propose to keep this issue open and leave it to be considered by the Division Bench to deal with it at appropriate stage and in an appropriate case.
47. A careful scrutiny or the judgments and the law laid down by this Court in cases of Chandrabhan Nandanwar's case (supra), Anil Shirpurkar's case(supra) and Prakash Pralhad Ingle's case (supra) as well as the law laid down by the Apex Court in cases of G. Sudarsan (supra) and Central Excise, Jaipur (supra), the conclusion, which we have arrived at the legal proposition which finally emerges, is summarized, in nutshell, as follows :
The employer/Government, is required to refer the Caste Certificate of its employee for verification to the Caste Scrutiny Committee as early as possible from the date of the order of appointment of such employee. However, if there is a delay in making reference for some valid reasons, the reference made by the employer beyond the period of two years is neither invalid, nor any order passed by the Caste Scrutiny Committee on such reference is null and void. In case of an employee, who has obtained a Caste Certificate by playing fraud, the employer is entitled to refer the caste claim of such employee to the Caste Scrutiny Committee as and when such fraud is detected and the question of applying any kind of limitation in this regard does not arise.
We answer the reference accordingly, place the Writ Petitions before the Division Bench for disposal on merits.