Bombay High Court
Pramod S/O Rajabhau Dantalwar vs The Honourable Presiding Officer, ... on 22 February, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 wpl1545of2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO 1545 OF 2012
Pramod s/o. Rajabhau Dantalwar,
aged about 43 yrs, Occ. Nil,
R/o. 79, GajananNagar, Manewada,
Ring Road, Nagpur ...PETITIONER
...V E R S U S...
1 The Hon'ble Presiding Officer,
School Tribunal, Chandrapur
2 Maharogi Sewa Samiti,
Anand Wan, Warora,
through its Secretary/President
3 The Head Mistress/Master,
Anand Muk-Badhir-Apang Vidyalaya,
Anand Wan, Warora, Dist. Chandrapur
4 The District Social Welfare Officer,
Zilla Parishad, Chandrapur ...RESPONDENTS
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Shri S.S. Godbole, counsel for petitioner.
Shri C.A. Lokhande, Asstt. Govt. Pleader for respondents 1 & 4.
Shri V.R. Chaudhari, counsel for respondents 2 & 3.
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CORAM :ROHIT B. DEO, J.
DATE :22.02.2019.
JUDGMENT
The petitioner - employee is questioning the ::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 ::: 2 wpl1545of2012 judgment and order dated 18.1.2012 rendered by School Tribunal, Chandrapur in Appeal STC-26 of 2002, by and under which, the appeal preferred by the employee challenging the termination order dated 24.2.2002, is dismissed.
2 The facts are broadly admitted or are irrefutable.
The petitioner submitted an application dated 26.7.1995 for the post of Art & Craft Teacher stating that he belongs to the Halba Scheduled Tribe community. The employee was issued appointment order dated 8.8.1995. It is not in dispute that the employee was appointed against vacancy reserved for the Scheduled Tribe.
It is further not in dispute that the Scrutiny Committee constituted under Maharashtra Scheduled Castes, Scheduled Tribes De-notified Tribes (Vimukt Jatis) Nomadic Tribes, Other Backward Classes & Special Category (Regulation of Issuance & Verification of) Caste Certificates, Act, 2000, rejected the tribe claim of the employee by order dated 10.12.2001 which order is upheld by this Court which dismissed Writ Petition 4144 of 2000 preferred by the employee. In view of the rejection of the tribe claim of the employee, by order dated 24.2.2002, the employee was terminated, which termination, the employee unsuccessfully ::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 ::: 3 wpl1545of2012 assailed before the School Tribunal.
The School Tribunal, inter alia referred to the decision of the Hon'ble Apex Court in Bank of India & another..vs.. Avinash D. Mandivikar & Ors reported in 2005(7) SCC 690 and held that the appointment of the employee as assistant teacher is void ab initio and dismissed the appeal.
3 Shri S.S. Godbole, the learned counsel for the employee contends that although, the initial appointment was against the vacancy reserved for Scheduled Tribe, in view of the directions issued by the District Social Welfare Officer, Chandrapur, the management treated the appointment of the employee as appointment in Open Category. Shri S.S. Godbole invites my attention to a communication dated 9.11.1998 addressed by the management to the District Social Welfare Officer, Chandrapur. The submission of the employee that the appointment is treated as appointment from the Open Category, is considered only for rejection. Concededly, the advertisement pursuant to which the employee was appointed, was in respect of three posts of Craft Teacher and one post was reserved for Scheduled Tribe. It is not in dispute that the petitioner was appointed against the post reserved for Scheduled Tribes since he ::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 ::: 4 wpl1545of2012 claimed to belong to the Halba - Scheduled Tribe Community.
The tribe claim is rejected by the Scrutiny Committed, which rejection is upheld by this Court and thus has assumed finality.
The Maharashtra Scheduled Castes, Scheduled Tribes De-notified Tribes (Vimukt Jatis) Nomadic Tribes, Other Backward Classes & Special Category (Regulation of Issuance & Verification of) Caste Certificates, Act, 2000 ("Act" for short), is enacted, interalia to address the concerns expressed by the Hon'ble Apex Court in Kumari Madhuri Patil & another ..vs..
Additional Commissioner, Tribal Development & Others, reported in 1994(6) SCC 241 and provides a statutory framework to regulate the issuance of the caste and tribe certificates and scrutiny and verification of caste and tribe claim and further provides for the consequences to ensue upon invalidation of such claims. Section 7 of the Act reads thus:
"7(1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such castes, Tribes or Classes, the scrutiny Committee may, suo motu, or otherwise call for the record and inquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the ::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 :::
5 wpl1545of2012 concerned authority, if any.
(2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or court except the High Court under Article 226 of the Constitution of India."
It would be apposite to also refer to the provisions of section 10 and 11 of the Act which read thus:
"10. (1) Whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or secures any appointment in the Government, local authority or in any other Company or Corporation, owned or controlled by the Government or in any Government aided institution or Co-operative Society against a post reserved for such Castes, Tribes or Classes by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed or deprived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith.
(2) Any amount paid to such person by the Government or any other agency by way of scholarship, grant, allowance or other financial benefit shall be recovered from such person as an arrears of land revenue.
(3) Notwithstanding anything contained in any Act for the time being in force, any Degree, Diploma or any other educational qualification acquired by such person after securing admission in any educational institution on the basis of a Caste Certificate which is subsequently proved to be false shall also stand cancelled, on cancellation of such Caste Certificate, by the Scrutiny Committee.::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 :::
6 wpl1545of2012 (4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory body if he has contested the election for local authority, Co-operative Society or any statutory body on the seat reserved for any of Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively.
11(1) Whoever, -
(a) obtains a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or
(b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes-Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes reserved for such Castes, Tribes, or Classes in the Government, local authority or any other company or corporation owned or controlled by the Governemnt or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Co- operative Society against the office, reserved for such Castes, Tribes or Classes by producing a false Caste Certificate;
Shall, on conviction be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both.
(2) No court shall take cognizance of an offence punished ::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 ::: 7 wpl1545of2012 under this section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorized by the Scrutiny Committee for this purpose.
4 In Chairman and Managing Director, Food Corporation of India and others..vs.. Jagdish Balaram Bahira and Others reported in (2017) 8 SCC 670, the Hon'ble Apex Court has authoritatively settled the debate qua the consequences to follow upon invalidation of the caste or tribe certificate. Suffice it to refer to the following observations of the Hon'ble Apex Court in the said decision:
"54 The object and purpose underlying the enactment of the state legislation is to regulate the issuance of caste certificates and to deal with instances which had come to light where persons who did not belong to the Scheduled Castes or Tribes or reserved categories were seeking appointments or admissions to the detriment of genuine candidates. The basic purpose and rationale for the legislation is to secure the just entitlements of legitimate claimants. The judgment in Shalini (supra) is with respect in error in imputing the requirement of a dishonest intent into the provisions of Section 10. Sections 7 and 10 have to be construed in harmony. Section 7 provides for the cancellation of a caste certificate where before or after commencement of the Act, a person who does not belong to a reserved category has obtained a false caste certificate and the Scrutiny Committee, after enquiry, is of the opinion that the certificate was obtained fraudulently. These requirements have to be fulfilled before the certificate is cancelled. The falsity of the caste certificate and the opinion of the Scrutiny Committee of its being fraudulently obtained form the basis of a cancellation under Section 7. Section 10 prescribes that a person who does not belong to a ::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 ::: 8 wpl1545of2012 reserved category and secures admission or obtains appointment against a reserved post by producing a false caste certificate shall upon its cancellation by the Scrutiny Committee be debarred from the institution or as the case may be discharged from employment and the benefits derived shall be withdrawn. Sub-section (2) provided for the recovery of all financial benefits while sub-section (3) provides for the cancellation of a degree, diploma or educational qualification. Sub-section (4) provides for disqualification from electoral office. The falsity of the certificate is the basis of an order under Section 7. Section 10 provides the consequence. The challenge to an order of the Scrutiny Committee (invalidating a caste or tribe certificate) may fail or succeeds. If the challenge before the High Court succeeds, no question of the consequence under Section 10 arises. If the challenge fails, the consequence under Section 10 follows the finding in the order under Section 7 that the certificate is false. Similarly, if the order under Section 7 is not challenged, or if the challenge is given up, there is no occasion to protect the benefits secured on the basis of a certificate which is invalidated. The expression "false" must be construed in contra-distinction to that which is true, genuine or authentic. Falsity in this sense means the setting up of a claim to belong to a reserved category.
"55. Section 10, it must be noted, provides for the withdrawal of civil benefits which have accrued to an individual on the strength of a claim to belong to a reserved category, when the claim upon due enquiry and verification is invalidated. Section 10, as its marginal note indicates, provides for the withdrawal of benefits secured on the basis of a false caste certificate. Section 11 provides for offences and penalties. The invalidation of a caste certificate may result in two consequences : (i) immediate cancellation or withdrawal of the benefits received by the candidate on the basis of a false caste certificate; (ii) prosecution of a claimant who procures a certificate which is found to be false by the Scrutiny Committee. The intent of a candidate may be of relevance only if there is a prosecution for a criminal offence. However, where a civil consequence of withdrawing the benefits which have accrued on the basis of a false caste ::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 ::: 9 wpl1545of2012 claim is in issue, it would be contrary to the legislative intent to import the requirement of a dishonest intent. In importing such a requirement, the bench of two Judges in Shalini (supra) has, with great respect, fallen into error. The judgment in Shalini (supra) must, therefore, be held not to lay down the correct principle. In the very nature of things it would be casting an impossible burden to delve into the mental processes of an applicant for a caste certificate. As the provisions of the Act indicate, a person, who claims to belong to a reserved category and who seeks the benefit of an appointment to a reserved post or of admission to an educational institution against a reserved seat or any other benefit provided by the provisions of Article 15(4), has to apply for the grant of a caste certificate. The burden of proof that he or she belongs to such a caste, tribe or class lies with the claimant. The legislature has legitimately assumed that a person who seeks a caste certificate must surely be aware of the caste, tribe or class to which he or she belongs and must establish the claim. If the claim to belong to the reserved category is found to be untrue, the caste certificate has to be cancelled on the ground that it has been obtained falsely. The grant of the benefit to the candidate is fraudulent because the candidate has obtained a benefit reserved exclusively for a specified caste, tribe or class to which he or she is not entitled. The decision in Shalini (supra) would result in serious consequences and would eviscerate the statutory provision. The interpretation which has been placed on the provisions of Section 10 by the judgment in Shalini (supra) is evidently incorrect.
56. Service under the Union and the States, or for that matter under the instrumentalities of the State subserves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demands and needs. Hence the procedure for selection, and the prescription of ::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 ::: 10 wpl1545of2012 eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong to a reserved category is selected. The fraud on the constitution precisely lies in this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of imposters are not protected in the exercise of the jurisdiction under Article 142. The nation cannot live on a lie. Courts play a vital institutional role in preserving the rule of law. The judicial process should not be allowed to be utilised to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act 23 of 2001, the power under Article 142 should not be exercised to defeat legislative prescription. The Constitution Bench in Milind spoke on 28 November 2000. The state law has been enforced from 18 October 2001. Judicial directions must be consistent with law. Several decisions of two judge benches noticed earlier, failed to take note of Maharashtra Act 23 of 2001. The directions which were issued under Article 142 were on the erroneous inarticulate premise that the area was unregulated by statute. Shalini noted the statute but misconstrued it".
The Hon'ble Apex Court concludes thus:
"69. For these reasons, we hold and declare that:::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 :::
11 wpl1545of2012 69.1. The directions which were issued by the Constitution Bench of this Court in paragraph 38 of the decision in Milind 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 which was rendered on 2 September 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 and in Dattatray 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 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 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 ::: 12 wpl1545of2012 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. 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 (Section 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 October 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;
69.8. The decisions in Kavita Solunke and Shalini of two learned Judges are overruled. Shalini in so far 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;
::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 :::13 wpl1545of2012 69.10. The judgment of the Full Bench of the Bombay High Court in Arun Sonone 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.
5 In the light of the authoritative pronouncement of the Hon'ble Apex Court in Chairman and Managing Director, Food Corporation of India and others..vs.. Jagdish Balaram Bahira and Others reported in (2017) 8 SCC 670, the employee is not entitled to any relief since concededly he has secured the employment on the basis of certificate which is invalided by the Scrutiny Committee. Even if it is assumed arguendo that the District Social Welfare Officer was empowered to direct the management to treat the petitioner as Open Category employee, which direction prima facie is without sanction of law, the case of the petitioner is taken no further. The consequences mandated by section 10 of the Act shall have to be given full effect and as is rightly held by the School Tribunal, the appointment of the employee shall have to be treated as void ab-initio.
::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 :::14 wpl1545of2012 6 The petition is without substance and is dismissed without any order as to cost.
JUDGE RS Belkhede ::: Uploaded on - 26/02/2019 ::: Downloaded on - 21/03/2019 03:28:48 :::