Chattisgarh High Court
Purushottam Kosta vs State Of Chhattisgarh on 1 July, 2016
W.P.(S)No.147/2016
and other connected matters
Page 1 of 43
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No.147 of 2016
Dhannu Das Burde, S/o Late Shri Saroop Das Barde, aged
about 40 years, R/o Working at Personal Assistant General
Administration Department, Mahanadi Bhawan, Mantralaya,
Naya Raipur, District Raipur (Chhattisgarh)
---- Petitioner
Versus
1. State of Chhattisgarh, Through Secretary, GAD, Mahanadi
Bhawan, Mantralaya, New Raipur, District Raipur
(Chhattisgarh)
2. Secretary, Law Department, Mahanadi Bhawan,
Mantralaya, New Raipur, District Raipur (Chhattisgarh)
3. High Level Caste Scrutiny Committee, Pandit Deendayal
Upadhayay Nagar, Sector-4, District Raipur (Chhattisgarh)
---- Respondents
WPS No.148 of 2016
Bhuwan Dekate, S/o Shri Rameshwar Dekate, aged about 42 years, Working at Personal Assistant General Administration Department, Mahanadi Bhawan, Mantralaya Naya Raipur, District Raipur (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, GAD, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
2. Secretary, Law Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
3. High Level Caste Scrutiny Committee, Pandit Deendayal Upadhyay Nagar, Sector-4, District Raipur (Chhattisgarh)
---- Respondents W.P.(S)No.147/2016 and other connected matters Page 2 of 43 WPS No.164 of 2016 Purushottam Kosta, S/o Shri Gopal Prasad Kosta, aged about 41 years, Working at Personal Assistant General Administration Department, Mahanadi Bhawan, Mantralaya Naya Raipur, District Raipur (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, GAD, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
2. Secretary, Law Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
3. High Level Caste Scrutiny Committee, Pandit Deendayal Upadhayay Nagar, Sector-4, District Raipur (Chhattisgarh)
---- Respondents WPS No.165 of 2016 Jagdish Narayan Kosta, S/o Shri Prem Narayan Kosta, aged about 41 years, Working at Personal Secretary General Administration Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District Raipur (Chhattisgarh)
---- Petitioner Versus
1. State Of Chhattisgarh, Through Secretary, GAD, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
2. Secretary Law Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
3. High Level Caste Scrutiny Committee, Pandit Deendayal Upadhayay Nagar, Sector-4, District Raipur (Chhattisgarh)
---- Respondents WPS No.166 of 2016 Rajendra Dekate, S/o Late Shri Vasudev Dekate, aged about 49 years, R/o G-2/23, EAC Colony, Behind Collectorate Raipur, Presently Posted as Senior Sports W.P.(S)No.147/2016 and other connected matters Page 3 of 43 Officer, Sports and Youth Welfare, Raipur, District Raipur (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, GAD, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
2. Secretary Law Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
3. High Level Caste Scrutiny Committee, Pandit Deendayal Upadhayay Nagar, Sector-4, District Raipur (Chhattisgarh)
---- Respondents WPS No.203 of 2016 Ku. Anita Nande, D/o Late Shri Shyamlal Nande, aged about 43 years, R/o Tulsipur, Ward No.18, Behind Sai Mandir, Rajnandgaon, District Rajnandgaon (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, GAD, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
2. Secretary, Law Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
3. High Level Caste Scrutiny Committee, Pandit Deendayal Upadhayay Nagar, Sector-4, District Raipur (Chhattisgarh)
---- Respondents WPS No.205 of 2016 Smt. Sunita Limje, W/o Shri Nandlal Limje, aged about 45 years, R/o Manta Nagar, Rajnandgaon, District Rajnandgaon (Chhattisgarh), At Present Working as Assistant Grade-Il, Irrigation Department, Rajnandgaon (Chhattisgarh)
---- Petitioner Versus W.P.(S)No.147/2016 and other connected matters Page 4 of 43
1. State of Chhattisgarh, Through Secretary, GAD, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
2. Secretary Law Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
3. High Level Caste Scrutiny Committee, Pandit Deendayal Upadhayay Nagar, Sector-4, District Raipur (Chhattisgarh)
---- Respondents WPS No.209 of 2016 Sunil Kumar Sonkusre, S/o Late Shri Babulal Sonkusre, aged about 39 years, R/o Sector-1, H-155, Kashiram Nagar, Raipur, District Raipur (Chhattisgarh), At Present Working as Assistant Grade-Ill, Sericulture Department, Raipur (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, GAD, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
2. Secretary, Law Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
3. High Level Caste Scrutiny Committee, Pandit Deendayal Upadhayay Nagar, Sector-4, District Raipur (Chhattisgarh)
---- Respondents WPS No.206 of 2016 Rajnarayan Dhaketa, S/o Late Shri M.D. Dhaketa, aged about 51 years, R/o Basantpur, Ward No.46, Rajnandgaon, District Rajnandgaon (Chhattisgarh), At Present Working as Constable, Police (Home) Department, Rajnandgaon (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, GAD, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh) W.P.(S)No.147/2016 and other connected matters Page 5 of 43
2. Secretary, Law Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
3. High Level Caste Scrutiny Committee, Pandit Deendayal Upadhayay Nagar, Sector-4, District Raipur (Chhattisgarh)
---- Respondents WPS No.207 of 2016 Dinesh Kumar Sonkusre, S/o Shri Pritam Das Sonkusre, aged about 42 years, R/o House No.112, Manta Nagar, Poonam Colony, District Rajnandgaon (Chhattisgarh), At Present Working as Junior Sericulture Inspector, Sericulture Department, Rajnandgaon (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, G.A.D., Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
2. Secretary, Law Department, Manahandi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
3. High Level Caste Scrutiny Committee, Pandit Deendayal Upadhyay Nagar, Sector-4, District Raipur, Chhattisgarh
---- Respondents WPS No.305 of 2016 Kailash Kumar Parate, S/o Shri Harchand Parate, aged about 51 years, R/o Behind Ashoka Heights, Aman Nagar, Mova, Raipur, Police Station Pandri (Mova), Raipur, Distt. Raipur (Chhattisgarh), Presently Posted as Rural Horticulture Extension Officer, O/o Assistant Director of Horticulture, Principal Garden, Raipur (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, General Administration Department, Mantralaya, Mahanadi Bhavan, Naya Raipur (Chhattisgarh)
2. Secretary, Department of Agriculture, Mantralaya, Mahanadi Bhavan, Naya Raipur (Chhattisgarh) W.P.(S)No.147/2016 and other connected matters Page 6 of 43
3. High Power Caste Scrutiny Committee, Through its President-cum-Secretary, Scheduled Caste & Scheduled Tribe Development Department, Tribal Research Training Institute, Pt. Dindayal Upadhyay Nagar, Sector-4, Raipur (Chhattisgarh)
---- Respondents WPS No.616 of 2016 Kishore Kumar Ninawe, S/o Shri Ramesh Ninawe, aged about 37 years, R/o New Khandelwal Colony, Ward No.19, P.S. Lalbagh, District Rajnandgaon (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, G.A.D., Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
2. Secretary, Law Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)
---- Respondents WPS No.728 of 2016 Nitin Kumbhare, S/o Late Shri Narayan Kumbhare, aged about 53 years, R/o C/o Shri A.P. Namdev, 4-A/2, Nehru Nagar (West), Near Gurudwara, Bhilai, P.S. Supela, Bhilai, District Durg (Chhattisgarh), Presently Posted as Executive Engineer, Public Health Engineering Department (E/M), Division Rajnandgaon (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, General Administration Department, Mantralaya, Mahanadi Bhavan, Naya Raipur (Chhattisgarh)
2. Secretary, Public Health Engineering (P.H.E.), Mahanadi Bhawan, Naya Raipur, Raipur (Chhattisgarh)
3. High Power Caste Scrutiny Committee, Through its President-cum-Secretary, Scheduled Caste & Scheduled Tribe Development Department, Tribal Research Training Institute, Pt. Dindayal Upadhayay Nagar, Sector-4, Raipur (Chhattisgarh)
---- Respondents W.P.(S)No.147/2016 and other connected matters Page 7 of 43 WPS No.925 of 2016 Smt. Pushpa Kumbhare, W/o Shri G.P. Kumbhare, aged about 52 years, R/o Rajeev Gandhi Ward, 33/1 Frezerpur, Jagdalpur, P.S. Bodhghat, District Jagdalpur (Chhattisgarh), Presently Posted as Head Master at Government Middle School, Halbakachora, Jagdalpur (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, General Administration Department, Mantralaya, Mahanadi Bhavan, Naya Raipur (Chhattisgarh)
2. District Education Officer, Bastar, District Jagdalpur (Chhattisgarh)
3. High Power Caste Scrutiny Committee, Through its President-cum-Secretary, Scheduled Caste & Scheduled Tribe Development Department, Tribal Research Training Institute, Pt. Dindayal Upadhayay Nagar, Sector-4, Raipur (Chhattisgarh)
---- Respondents AND WPS No.1110 of 2016 Gyaneshwar Barapatre, S/o Late T.M. Barapatre, aged about 52 years, R/o Rambhata, Near Bus Depot Raigarh, Presently Posted as S.E., Office of Chief Engineer, P.H.E., Jagdalpur (Chhattisgarh)
---- Petitioner Versus
1. State of Chhattisgarh, Through Secretary, General Administration Department, Mantralaya, Mahanadi Bhavan, Naya Raipur (Chhattisgarh)
2. Additional Secretary, Chhattisgarh Government, P.H.E. Department, Mantralaya, Mahanadi Bhavan, Naya Raipur (Chhattisgarh)
3. High Power Caste Scrutiny Committee, Through its President-cum-Secretary, Scheduled Caste & Scheduled Tribe Development Department, Tribal Research Training Institute, Pt. Dindayal Upadhayay Nagar, Sector-4, Raipur (Chhattisgarh)
---- Respondents W.P.(S)No.147/2016 and other connected matters Page 8 of 43 For Petitioners: Mr. Manoj Paranjpe, Mr. Mateen Siddiqui, Mr. Amrito Das, Mr. Saurabh Dangi and Mr. Rajesh Ranjan Sinha, Advocates.
For State: Mr. Yashwant Singh Thakur, Deputy Advocate General.
Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order 01/07/2016
1. Invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the writ petitioners in this batch of writ petitions are questioning legality, validity and correctness of the order dated 11-1-2016 (Annexure P-1) passed by the Secretary to respondent No.1 whereby the office order dated 1-10-2011 has been revoked / cancelled and it has been further directed to the respective Departments to proceed in accordance with law against those employees / officers who have been granted service protection / benefit of the order / circular dated 1-10-2011.
2. Aforesaid challenge has been made by the petitioners herein on the following factual matrix: -
2.1) The petitioners herein were granted reserved category status (Scheduled Tribe) by order dated 13-11-1997 by the competent authority holding him the Halba Scheduled Tribe as defined under the Constitution (Scheduled Tribe) Order, 1950, Entry No.17, and the said petitioners were appointed W.P.(S)No.147/2016 and other connected matters Page 9 of 43 on the vacant post as mentioned by order as mentioned in the following chart by the erstwhile State of Madhya Pradesh.
2.2) Following chart would indicate the petitioners' date of obtaining Scheduled Tribe certificate, date of appointment and date of order passed by the Scrutiny Committee extending the benefit of the circular dated 1-10-2011: -
S.No. Name of the W.P.(S) Date of Date of Order passed petitioner No. joining in issuance of by the Govt. caste Scrutiny service. certificate Committee invalidating the certificate but granting service protection
1. Dhannu Das 147/2016 9-12-1997 13-11-1997 16-4-2015 Burde
2. Bhuwan 148/2016 9-12-1997 3-1-1996 2-4-2015 Dekate
3. Purushottam 164/2016 9-12-1997 29-3-1994 17-8-2015 Kosta
4. Jagdish 165/2016 16-9-1998 24-7-1995 15-7-2015 Narayan Kosta
5. Rajendra 166/2016 18-5-1990 3-7-1989 2-4-2015 Dekate
6. Ku. Anita 203/2016 4-8-1994 12-10-1993 17-6-2015 Nande
7. Smt. Sunita 205/2016 14-1-1994 21-9-1993 17-6-2015 Limje
8. Sunil Kumar 209/2016 14-10-1996 26-7-1995 2-4-2015 Sonkusre
9. Rajnarayan 206/2016 29-1-1992 30-9-1989 28-12-2015 Dhaketa
10. Dinesh Kumar 207/2016 9-12-1997 31-5-1995 2-4-2015 Sonkusre
11. Kishore Kumar 616/2016 29-4-1998 1-7-1995 The SDM vide Ninawe its order dated 17-12-2007 protected the services of the petitioner after W.P.(S)No.147/2016 and other connected matters Page 10 of 43 having recorded a finding that he belongs to Halba Koshti caste.
12. Kailash Kumar 305/2016 31-11-1982 19-3-1985 3-10-2015 Parate
13. Nitin Kumbhare 728/2016 9-3-1983 18-10-1990 26-8-2015
14. Smt. Pushpa 925/2016 3-9-1985 28-8-1993 15-7-2015 Kumbhare
15. Gyaneshwar 1110/2016 15-7-1988 1-5-1981 20-8-2015 Barapatre 2.3) The Akhil Bharatiya Parisangh, Branch Chhattisgarh, representing Scheduled Castes and Scheduled Tribes made a complaint to respondent No.1 that the petitioners have obtained forged caste certificate as they do not belong to reserved category and as such, they be dismissed from service. Acting upon that complaint, the petitioners' caste status was ultimately referred to the High Power Certification Scrutiny Committee constituted by the State Government by order dated as mentioned in the above-
stated chart in accordance with the Chhattisgarh Scheduled Castes, Scheduled Tribes and Other Backward Classes (Regulation of Social Status Certification) Rules, 2013. The said Committee by its order (date is mentioned in the above- stated chart) held the petitioners being Halba Koshti not Halba, a notified Scheduled Tribe under Order, 1950, but concluded that the petitioners are entitled for service protection in view of the office memorandum issued by the Central Government dated 10-8-2010 and also entitled for W.P.(S)No.147/2016 and other connected matters Page 11 of 43 the benefit as per the office order issued in similar lines by the State of Chhattisgarh dated 1-10-2011, and further directed the Administrative Department of the petitioners to comply the office memorandum issued by the Central Government on 10-8-2010 and by the State Government on 1-10-2011.
2.4) After the order of the Caste Scrutiny Committee, the petitioners continued in service, though no express consequential order is said to have been passed in accordance with the circular dated 1-10-2011 extending the service protection as directed by the Committee. The orders of the High Power Certification Scrutiny Committee were not challenged and they have become final. 2.5) By the impugned order dated 11-1-2016 (Annexure P-
1), the Secretary to the State Government - respondent No.1 has revoked the order dated 1-10-2011 and directed all Administrative Departments of the Government to proceed in accordance with law against all whose services have been protected by order dated 1-10-2011.
2.6) The writ petitioners herein being the beneficiaries of the order dated 1-10-2011, feeling dissatisfied with the order dated 11-1-2016 revoking the order dated 1-10-2011, have filed these writ petitions questioning legality, validity and correctness of the impugned order stating inter alia that the W.P.(S)No.147/2016 and other connected matters Page 12 of 43 order dated 1-10-2011, which was revoked by the impugned order, was issued in the light of Constitution Bench judgment of the Supreme Court in the matter of State of Maharashtra v. Milind and others1 and therefore respondent No.1 could not have cancelled the order dated 1-10-2011 with retrospective effect from 1-10-2011 itself, as revocation / cancellation of order dated 1-10-2011 would amount to taking the benefit already granted to them without even affording them an opportunity of hearing and the order dated 1-10-2011 is an executive instruction which cannot be revoked with retrospective effect. It has also been pleaded that the decision relied upon by the respondents in the impugned order dated 11-1-2016 i.e. Union of India v. Dattatray S/o Namdeo Mendhekar and others 2 has wrongly been taken into account as the ratio of Dattatray's case (supra) will be applicable only to those cases where the employee is guilty of misrepresentation / fabrication and got the social status certificate by playing fraud. It has also been pleaded that the petitioners are not guilty of making any misrepresentation or falsehood as there is a bona fide dispute as to the petitioners (Halba Koshti) fall within Scheduled Tribe, Entry No.17 (Halba) of the Constitution (Scheduled Tribe) Order, 1950 and they were bona fidely 1 (2001) 1 SCC 4 2 (2008) 4 SCC 612 W.P.(S)No.147/2016 and other connected matters Page 13 of 43 granted caste certificate by the competent authority, but after the decision of the Supreme Court in Milind (supra), it has been made clear that Halba Koshti are not entitled for the said status (Scheduled Tribe), however, the Supreme Court has protected those admissions and appointments which have become final on the date of judgment i.e. 28-11- 2000. Therefore, the impugned order Annexure P-1 deserves to be quashed.
3. The respondents / State has filed its counter affidavit stating inter alia that by the circular dated 11-1-2016, a direction has been issued by the Department of General Administration to take necessary action against the employees who are appointed in service of the State Government in violation of the constitutional provisions and in violation of the rules. It has further been pleaded that the impugned circular issued by respondent No.1 is in- conformity with the judgment of the Supreme Court in the matters of Kumari Madhuri Patil and another v. Addl. Commissioner, Tribal Development and others 3 and Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and others4. It has also been pleaded that the circular dated 11-1-2016 is in-conformity with the provisions of Section 9 of the Chhattisgarh Scheduled Castes, 3 (1994) 6 SCC 241 4 (1990) 3 SCC 130 W.P.(S)No.147/2016 and other connected matters Page 14 of 43 Scheduled Tribes and Other Backward Classes (Regulation of Social Status Certification) Act, 2013 (for short 'the Act of 2013') which provides that benefits secured on the basis of false social status certificate to be withdrawn. It provides that whoever, secures admission against a reserved seat or secures public appointment against a reserved post meant for such Castes, Tribes or Classes by producing a Social Status Certificate obtained wrongfully or fraudulently, shall on cancellation of such certificate be liable to be rusticated from the educational institution or dismissed from the public employment, as the case may be, forthwith or be denied any other benefit or advantage enjoyed by virtue of such admission or appointment. Therefore, the petitioners are not entitled for any relief and the writ petitions deserve to be dismissed.
4. No rejoinder has been filed on behalf of the petitioners.
5. Mr. Manoj Paranjpe, learned counsel appearing in W.P.(S) Nos.203/2016 and 205/2016, would submit that effect of the impugned order dated 11-1-2016 (Annexure P-1) would amount to modifying the order of the High Power Certification Scrutiny Committee which has become final and that can only be challenged in a duly constituted petition under Article 226 of the Constitution of India. He would further submit that the order passed by the Scrutiny W.P.(S)No.147/2016 and other connected matters Page 15 of 43 Committee shall be final by virtue of the provisions contained in sub-section (2) of Section 8 of the Act of 2013 and shall be conclusive subject to proceeding under Article 226 of the Constitution of India. Since the order of the Scrutiny Committee has not been challenged, the benefit conferred to the petitioners of the circular dated 1-10-2011 which is part of the order passed by the Scrutiny Committee has become final by virtue of the provisions contained in sub-section (2) of Section 8 of the Act of 2013 and which has also been reiterated in Kumari Madhuri Patil (supra) and therefore such an order passed by the State Government is impermissible in law and the benefit extended by the Scrutiny Committee cannot be withdrawn by the impugned order dated 11-1-2016 as such, the order impugned be quashed and the writ petitions be allowed.
6. Mr. Amrito Das, learned counsel appearing in W.P.(S) Nos.206/2016 and 209/2016, would submit that the circular dated 1-10-2011 granting service protection to the petitioners pursuant to the judgment of the Supreme Court in Milind (supra) has already been given effect to by the Scrutiny Committee and the order of the Scrutiny Committee has not been questioned by any party to the lis, and the circular dated 1-10-2011 issued by the State Government is an executive instruction / circular which cannot be W.P.(S)No.147/2016 and other connected matters Page 16 of 43 withdrawn that too with retrospective effect and as such, the order Annexure P-1 taking away the service protection given by the State Government pursuant to the judgment in Milind's case (supra) deserves to be quashed.
7. Mr. Saurabh Dangi, learned counsel appearing in some of the writ petitions, would submit that the petitioners' caste certificates issued prior to 28-11-2000 were verified by the duly constituted Caste Scrutiny Committee under the Act of 2013 and though they were not found to be the notified Scheduled Tribe (Halba) within the meaning of the Constitution (Scheduled Tribe) Order, 1950 but the Scrutiny Committee in its own wisdom extended the benefit of Milind's case (supra) which was also followed by the State Government in its circular dated 1-10-2011 and the decision of the Supreme Court in the matter of Punjab National Bank and another v. Vilas S/o Govindrao Bokade and another5, as the State Government has clearly extended the benefit of service protection to those petitioners whose appointment has attained finality on or before 28-11-2000. He would further submit that the circular dated 1-10-2011 has been issued by the State Government following the judgment of the Supreme Court in Milind (supra) as well as the office memorandum of the Central Government dated 10-8-2010 and therefore it could not have been cancelled by 5 (2008) 14 SCC 545 W.P.(S)No.147/2016 and other connected matters Page 17 of 43 the State Government with retrospective effect. He would also submit that the ratio of Dattatray's case (supra) has wrongly been taken into account because the ratio of Dattatray's case (supra) would be applicable only to those cases where the caste certificate has been obtained by playing fraud or misrepresenting the facts as it is not the case that any of the petitioners have obtained caste certificate by playing fraud because it is the case of the petitioners that they were bona fidely granted status of Scheduled Tribe category holding that Halba Koshti also falls within the category of Scheduled Tribe in view of Entry No.17 of the Constitution (Scheduled Tribe) Order, 1950 and as such, he will also adopt the other submissions raised by Mr. Manoj Paranjpe and Mr. Amrito Das, learned counsel.
8. Mr. Mateen Siddiqui, learned counsel for the petitioner appearing in W.P.(S)No.925/2016, would submit that though the petitioners have been extended the benefit of circular dated 1-10-2011, relying upon the impugned order Annexure P-1 dated 11-1-2016, the District Education Officer, Jagdalpur has issued notice to the petitioner to remove him from the post of Head Master/Upper Division Teacher (Annexure P-2 page 26) therefore, it cannot be said that the circular dated 1-10-2011 is not being acted upon, it W.P.(S)No.147/2016 and other connected matters Page 18 of 43 has been acted upon and the benefit actually granted by the Scrutiny Committee is being taken away which is unsustainable and bad in law.
9. Mr. Y.S. Thakur, learned Deputy Advocate General appearing for the State while vehemently opposing the submissions raised on behalf of the petitioners, would submit that the circular dated 1-10-2011 was erroneously issued, it was not inconformity with the constitutional provisions particularly, Article 342 of the Constitution of India and consequently, by the impugned order, a direction has been issued by the State Government to take necessary action against those employees who are appointed in service of the State Government in violation of the constitutional provisions and in violation of the rules and such an order by the State Government is inconformity with the judgments rendered by the Supreme Court in the matters of Kumari Madhuri Patil (supra), Marri Chandra Shekhar Rao (supra) and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another v. Union of India and another6. He would further submit that the impugned order is inconformity with the provisions of Section 9 of the Act of 2013, as the appointment made against the reserved post on the basis of social status 6 (1994) 5 SCC 244 W.P.(S)No.147/2016 and other connected matters Page 19 of 43 certificate has to be withdrawn and the persons have to be dismissed from public employment forthwith. He would also submit that the judgment of the Supreme Court in Milind (supra) is distinguishable from the facts of the present case and therefore no protection can be granted to the petitioners in violation of Article 342 of the Constitution of India or in violation of the Act of 2013 and the rules made thereunder. While concluding his submission, he would submit that the circular dated 1-10-2011 does not have the force of law and has not been expressed in the name of Governor of the State of Chhattisgarh and it was not issued in accordance with Article 166 of the Constitution of India and therefore that has rightly been withdrawn by the Secretary to respondent No.1, and all the writ petitions deserve to be dismissed being substance-less.
10.I have heard learned counsel for the parties and given thoughtful consideration to the submissions raised by either- side herein and also gone through the record carefully and critically.
11.It is not in dispute that all these petitioners were granted the benefit of reserved category status i.e. Scheduled Tribe holding them to be belonging to Scheduled Tribe under Entry No.17 (Halba) under the Constitution (Scheduled Tribe) Order, 1950, though they were Halba Kosthi and W.P.(S)No.147/2016 and other connected matters Page 20 of 43 thereafter, they were appointed to their respective posts.
12.On the complaint made by the Akhil Bharatiya Parisangh, Branch Chhattisgarh, their matters were referred to the High Power Certification Scrutiny Committee constituted under the Act of 2013 and the rules made thereunder and the Scrutiny Committee by separate orders held them not belonging to Scheduled Tribe (Halba), but extended the benefit of circular dated 1-10-2011.
13.Now, the short question to be considered is, whether the State Government is justified in withdrawing / revoking the circular dated 1-10-2011 which has been acted upon and the service protection has been granted to the petitioners. Further question would be, whether the State Government is justified in revoking the circular with retrospective effect and withdrawing the benefit with retrospective effect by modifying the decision of the Scrutiny Committee which has become final.
14.The Supreme Court in Kumari Madhuri Patil (supra) has laid down the procedure for issuance of social status certificates, their scrutiny and their approval, and issued 15 directions. Direction Nos.11 to 13 are as follows: -
"11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any W.P.(S)No.147/2016 and other connected matters Page 21 of 43 other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136."
15.The above-stated directions would show that the order passed by the Committee shall be final and conclusive and only subject to proceeding under Article 226 of the Constitution of India. Subsequently, the Supreme Court in the matter of Dayaram v. Sudhir Batham and others 7 affirmed the directions issued in Kumari Madhuri Patil (supra) except direction No.13 holding that intra-court appeal / letters patent appeal may be filed when writ petition is filed challenging orders of Caste Scrutiny Committee, wherever such appeal is available. Not only this, the Act of 2013 namely the Chhattisgarh Scheduled Castes, Scheduled Tribes and Other Backward Classes (Regulation of Social Status Certification) Act, 2013, was passed by the State Government which came into force with effect from 29-4-2013 which is an act to protect the interest of persons belonging to the Scheduled Castes, the Scheduled Tribes and the Other Socially and Educationally Backward Classes of citizens in the State and also to provide for punishment for issuing and obtaining false Social Status Certification. 7 (2012) 1 SCC 333 W.P.(S)No.147/2016 and other connected matters Page 22 of 43 Section 7 of the Act of 2013 provides for constitution of High Power Certification Scrutiny Committee by the State Government and it was so constituted by the State Government by order dated 22-8-2013.
16.The petitioners' Scheduled Tribe certificates issued by the competent authority were referred to the High Power Certification Scrutiny Committee constituted under Section 7 of the Act of 2013 and ultimately, the Certification Scrutiny Committee after due enquiry passed an order under Section 8 of the Act holding that the petitioners do not belong to Scheduled Tribe category (Halba) and therefore the social status certificates were cancelled, but the petitioners were held entitled for the benefit of the order dated 1-10-2011 and are entitled for protection of their appointment/certificates. Section 8(2) of the Act of 2013 states as under: -
"8. Cancellation and confiscation of false Social Status Certificate.--(2) The order passed by the High Power Certification Scrutiny Committee under this Act, shall be final and conclusive subject to the proceedings under Article 226 of the Constitution of India only."
17.The order passed by the High Power Certification Scrutiny Committee in cases of the petitioners under the Act of 2013, as held by the Supreme Court in Kumari Madhuri Patil (supra), is final and conclusive and only subject to the proceedings under Article 226 of the Constitution of India. It is not in dispute that the order passed by the Caste Scrutiny W.P.(S)No.147/2016 and other connected matters Page 23 of 43 Committee in cases of the petitioners have become final. The High Power Certification Scrutiny Committee is a body constituted under the Act of 2013 and earlier also it was a quasi judicial body constituted pursuant to the judgment of the Supreme Court in Kumari Madhuri Patil (supra) and the decision of the said Committee can be challenged only by proceeding under Article 226 of the Constitution of India and it has not been so challenged by the State Government or by any other person aggrieved against that, that the benefit conferred to the petitioners dated 1-10-2011 has wrongly been extended to the petitioners. The benefit of order dated 1-10-2011 which has been extended to the petitioners has become final by virtue of the decision of the Supreme Court in Kumari Madhuri Patil (supra) vide direction No.11 and Section 8(2) of the Act of 2013. Therefore, the benefit conferred to the petitioners in shape of service protection pursuant to the circular dated 1-10- 2011, which was passed on the basis of decision of the Supreme Court in Milind's case (supra), cannot be taken indirectly by respondent No.1 by revoking / cancelling the impugned order dated 11-1-2016 (Annexure P-1) after it has attained finality.
18.This aforesaid determination would bring me to the next plea of learned counsel for the petitioners that revocation / W.P.(S)No.147/2016 and other connected matters Page 24 of 43 cancellation of circular dated 11-1-2016 relying upon the judgment rendered by the Supreme Court in Dattatray's case (supra), is bad in law.
19. In order to judge the correctness of the plea raised at the Bar, it would be appropriate to notice the judgment of the Supreme Court in Milind's case (supra) which provided for service protection. In Milind's case (supra), Their Lordships of the Supreme Court have formulated two questions for consideration in the judgment which state as under: -
"(1) Whether at all, it is permissible to hold inquiry and let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950?
(2) Whether "Halba-Koshti" caste is a sub- tribe within the meaning of Entry 19 (Halba/ Halbi) of the said Scheduled Tribes Order relating to the State of Maharashtra, even though it is not specifically mentioned as such?"
20. Their Lordships of the Supreme Court while answering the above-stated questions in negative were pleased to hold that it is not at all permissible to hold any inquiry to decide that any community or group is included as the synonym to a tribal community mentioned in the Constitution (Scheduled Tribes) Order, 1950 and secondly, the Koshti caste has no identity with Halba which is a Scheduled Tribe and thus, the W.P.(S)No.147/2016 and other connected matters Page 25 of 43 Koshti is not included in Halba. However, the Supreme Court while considering the fact of completion of MBBS course by Milind, respondent No.1 therein, about 15 years back, in that case, granted protection to his degree, however, denying any further benefit held as under: -
"..... In these circumstances, this judgment shall not affect the degree obtained by him and his practising as a doctor. But we make it clear that he cannot claim to belong to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words, he cannot take advantage of the Scheduled Tribes Order any further or for any other constitutional purpose. Having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No.16372 of 1985 and other related matters, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment."
21. Thereafter, the Supreme Court in Vilas's case (supra) decided on 22-3-2007 while considering the controversy about implication and application of Milind's case (supra) has upheld the decision of the High Court granting service protection to the concerned employee in light of Milind's case (supra) holding that the judgment of Milind's case would be applicable to the persons affected with the subject matter Halba-Koshti. Paragraph 20 of the report states as under: -
"20. The situation is no different in case of the present respondent. He also came to be appointed and/or promoted way back in the year 1989 on the basis of his caste certificate W.P.(S)No.147/2016 and other connected matters Page 26 of 43 which declared him to be Scheduled Tribe. Ultimately, it was found that since a "Koshti"
does not get the status of a Scheduled Tribe, the Caste Scrutiny Committee invalidated the said certificate holding that respondent was a Koshti and not a Halba. I must hasten to add that there is no finding in the order of the Caste Scrutiny Committee that the petitioner lacked in bona fides in getting the certificate. I say this to overcome the observations in para 21 in Sanjay K. Nimje case8. But it is not a case where the respondent pleaded and proved bona fides. Under such circumstances the High Court was fully justified in relying on the observations made in Milind case. The High Court has not referred to the judgment and order in Civil Appeal No.3375 of 2000 decided on 12-12-2000 to which a reference has been made above. However, it is clear that the High Court was right in holding that the observations in Milind case apply to the case of the present respondent and he stands protected thereby."
22. Similarly, in the matter of Kavita Solunke v. State of Maharashtra and others9 Their Lordships of the Supreme Court have held that when there is no accusation of fabrication, manipulation or concealment, the refusal of benefit flowing from the judgment of the Supreme Court in Milind's case would be unjustified and distinguished the earlier two decisions of the Supreme Court on the point in line with Dattatray's case (supra) namely Sanjay K. Nimje's case (supra) and Addl. General Manager-- Human Resource, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde10, and held as under in 8 State of Maharashtra v. Sanjay K. Nimje, (2007) 14 SCC 481 : (2007) 2 Scale 214 9 (2012) 8 SCC 430 10 (2007) 5 SCC 336 W.P.(S)No.147/2016 and other connected matters Page 27 of 43 paragraphs 19 and 20 of Kavita Solunke's case (supra): -
"19. Our attention was drawn by the counsel for the respondents to the decision of this Court in BHEL v. Suresh Ramkrishna Burde, (2007) 5 SCC 336, in which the protection against ouster granted by the decision in Milind case was not extended to the respondent therein. A bare reading of the said decision, however, shows that there is a significant difference in the factual matrix in which the said case arose for consideration.
In Burde case, the Scrutiny Committee had found that the caste certificate was false and, therefore, invalid. That was not the position either in Milind case nor is that the position in the case at hand. In Milind case, the Scrutiny Committee had never alleged any fraud or any fabrication or any misrepresentation that could possibly disentitle the candidate to get relief from the Court. In the case at hand also there is no such accusation against the appellant that the certificate was false, fabricated or manipulated by concealment or otherwise. Refusal of a benefit flowing from the decision of this Court in Milind case may, therefore, have been justified in Burde case but may not be justified in the case at hand where the appellant has not been accused of any act or omission or commission of the act like the one mentioned above to disentitle her to the relief prayed for. The reliance upon Burde case, therefore, is of no assistance to the respondent.
20. The decision of this Court in State of Maharashtra v. Sanjay K. Nimje, (2007) 14 SCC 481, relied upon by the learned counsel for the respondents was distinguished even by V.S. Sirpurkar, J. in Vilas case. The distinction is primarily in terms whether the candidate seeking appointment or admission is found guilty of a conduct that would disentitle him/her from claiming any relief under the extraordinary powers of the Court. This Court found that if a person secures appointment or admission on the basis of false certificate, he cannot retain the said benefit obtained by him/her. The courts will W.P.(S)No.147/2016 and other connected matters Page 28 of 43 refuse to exercise their discretionary jurisdiction depending upon the facts and circumstances of each case."
23. Recently, the point in dispute was again considered by the Supreme Court and precisely answered in the matter of Shalini v. New English High School Association and others11 which has considered the implications of Dattatray's case (supra) and held as under: -
"8. A reading of the impugned judgment 12 requires us to clarify an important aspect of the doctrine of precedence. Dattatray is the only three-Judge Bench decision, and therefore indisputably holds pre-eminence. However, by that time several decisions had already been rendered by two-Judge Benches some of which have already been discussed above. It was within the competence of Dattatray Bench to overrule the other two- Judge Benches. Despite the fact that it has not done so the per incuriam principle would not apply to the decision because it was a larger Bench. However, no presumption can be drawn that the Dattatray three-Judge Bench decision was of the opinion that the earlier two-Judge Bench decisions had articulated an incorrect interpretation of the law. That being so, the two-Judge Bench views may still be relied upon so long as the ratio of Dattatray is not directly in conflict with their ratios. It is therefore imperative to distill the ratio of Dattatray, which we have already discussed in some detail. We need only reiterate therefore that the three-Judge Bench was perceptibly incensed with the falsity of the claim of the employee to Scheduled Caste/ Scheduled Tribe status. That was not a case where a legitimate claim of consanguinity to a "Halba Koshti", "Koshti" or "Gadwal Koshti", etc. had been made, which was at the 11 (2013) 16 SCC 526 12 Shalini v. New English High School Assn., LPA No.527 of 2009, order dated 25-11-2009 (Bom) W.P.(S)No.147/2016 and other connected matters Page 29 of 43 inception point considered to be eligible to beneficial treatment admissible to Scheduled Tribes, later to be reversed by the Constitution Bench decision in Milind and declared to be the entitlement of Halbas only.
9. It is not the intent of law to punish an innocent person and subject him to extremely harsh treatment. That is why this Court has devised and consistently followed that taxation statutes, which almost always work to the pecuniary detriment of the assessee, must be interpreted in favour of the assessee. Therefore, as we see it, on one bank of the Rubicon are the cases of dishonest and mendacious persons who have deliberately claimed consanguinity with the Scheduled Castes or Scheduled Tribes, etc. whereas on the other bank are those marooned persons who honestly and correctly claimed to belong to a particular Scheduled Caste/Scheduled Tribe but were later on found by the relevant authority not to fall within the particular group envisaged for protected treatment. In the former group, persons would justifiably deserve the immediate cessation of all benefits, including termination of services. In the latter, after the removal of the nebulousness and uncertainty, while the services or benefits already enjoyed would not be negated, they would be disentitled to claim any further or continuing benefit on the predication of belonging to the said Scheduled Caste/Scheduled Tribe."
24. Finally, Their Lordships of the Supreme Court in an extremely recent judgment in the matter of R. Unnikrishnan and another v. V.K. Mahanudevan and others 13 while dealing with almost similar issue held as under: -
"41. In the instant case there is no evidence of lack of bona fides by the respondent. The protection available under the decision of Milind case could, therefore, be admissible even to the respondent. It follows that even if 13 (2014) 4 SCC 434 W.P.(S)No.147/2016 and other connected matters Page 30 of 43 on a true and correct construction of the expression "Thandan" appearing in the Constitution (Scheduled Castes) Order, 2007 did not include "Ezhuvas" and "Thiyyas"
known as "Thandan" and assuming that the two were different at all relevant points of time, the fact that the position was not clear till the Amendment Act of 2007 made a clear distinction between the two, would entitle all those appointed to serve the State up to the date the amending Act came into force, to continue in service."
25. At this stage, it would be apparent to note the decision rendered by the Supreme Court in Dattatray's case (supra), decided on 15-2-2008, in which three-Judge Bench of the Supreme Court has held that no protection is available in light of Milind case to a person who had falsely claimed that he belongs to Scheduled Tribe as in that case, the respondent therein was claiming to be Scheduled Tribe Halba and was appointed as Assistant Professor of Psychiatry in G.B. Pant Hospital, New Delhi against a post reserved for Scheduled Tribes and on verification of the certificate of Scheduled Tribe it was disclosed that he did not belong to the Halba tribe and there was an allegation that he has falsely claimed that he belonged to the said Scheduled Tribe. It has been held in paragraphs 6 and 7 as under: -
"6. In this context, we may also refer to the decisions in Bank of India v. Avinash D. Mandivikar14 and Addl. GM-Human Resource, Bharat Heavy Electricals Ltd. v. Suresh 14 (2005) 7 SCC 690 : 2005 SCC (L&S) 1011 W.P.(S)No.147/2016 and other connected matters Page 31 of 43 Ramkrishna Burde, 2007(5) SCC 336, wherein this Court held that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. In the latter case, this Court explained Milind thus: (Suresh Ramkrishna Burde case, SCC p. 340, para 7) "7. The High Court has granted relief to the respondent and has directed his reinstatement only on the basis of the Constitution Bench decision of this Court in State of Maharashtra v. Milind. In our opinion the said judgment does not lay down any such principle of law that where a person secures an appointment by producing a false caste certificate, his services can be protected and an order of reinstatement can be passed if he gives an undertaking that in future he and his family members shall not take any advantage of being member of a caste which is in reserved category."
This Court further held that even in cases of admission to educational institutions, the protection extended by Milind will be applicable only where the candidate had successfully completed the course and secured the degree, and not to cases where the falsehood of the caste certificate is detected within a short period from the date of admission.
7. We are of the view that the High Court failed to appreciate the ratio of Milind. Having held that the first respondent had falsely claimed that he belonged to a Schedule Tribe, it wrongly extended him the benefit of continuing in employment."
26. Now, if the facts of the case in hand are examined in light of judgments rendered by the Supreme Court in above-stated cases, it would appear that the petitioners were granted certificate of Scheduled Tribe on the basis that they belong W.P.(S)No.147/2016 and other connected matters Page 32 of 43 to Halba Koshti which is also included in Entry No.17 of the Constitution (Scheduled Tribe) Order, 1950 pursuant to which they were given appointment on the reserved post prior to 28-11-2000 the date on which the decision was rendered by the Supreme Court in Milind (supra). The circular dated 10-8-2010 issued by the Central Government is based upon the judgment of the Supreme Court in Milind (supra) and that has also been considered in the subsequent decision of the Supreme Court in Vilas's case (supra).
27. Thus, the Supreme Court in Milind (supra) as well as in Vilas's case (supra) has clearly held that the candidates belonging to Halba Koshti or Koshti caste, whose appointment had become final on or before 28-11-2000, the date of judgment of the Supreme Court in Milind shall not be affected, but they will not be entitled for their further service benefits and in Dattatray's case (supra) it has been held that the person who has been granted social status certificate on the basis of fraud or misrepresentation will not be entitled for service benefits.
28. The State Government has also issued order dated 1-10- 2011 based upon the circular dated 10-8-2010 relying upon the decision of the Supreme Court in Milind (supra).
29. Paragraphs 2 and 3 of the office memorandum dated 10-8- W.P.(S)No.147/2016 and other connected matters Page 33 of 43 2010 (Annexure P-5) issued by the Government of India state as under: -
"2. The matter regarding the effect of the judgment of the Supreme Court in Milind's case has been considered by the Supreme Court in Civil Appeal No.1547 of 2007 [Punjab National Bank & Anr Vs. Vilas, S/o Govindrao Bokade] and some other cases. The Supreme Court in these cases has observed that it had held in Milind's case that though the status of Scheduled Tribe could not be conferred on candidates belonging to Halba Koshti/Koshti caste, protection had been provided in no uncertain terms to admissions and appointments that had become final. Thus the Supreme Court has held that such candidates belonging to Halba Koshti/Koshti caste whose appointment had become final on or before 28.11.2000, the date on which the Supreme Court had decided the Civil Appeal No.2294/1986 [State of Maharashtra V/s Milind & Ors], shall not be affected.
3. The matter has been examined in consultation with the Department of Legal Affairs and it has been decided that the persons belonging to the 'Halba Koshti/Koshti' caste who got appointment against vacancies reserved for the Scheduled Tribes on the basis of Scheduled Tribe certificates, issued to them by the competent authority, under the Constitution (Scheduled Tribes) Order, 1950 (as amended from time to time) relating to the State of Maharashtra and whose appointments had become final on or before 28.11.2000, shall not be affected. However, they shall not get any benefit of reservation after 28.11.2000."
30. Likewise, paragraphs 3 and 4 of the circular dated 1-10- 2011 (Annexure P-6) issued by the State Government also state as under: -
^^3- Hkkjr ljdkj] dkfeZd] yksd f'kdk;r rFkk isa'ku W.P.(S)No.147/2016 and other connected matters Page 34 of 43 ea=ky; ¼dkfeZd vkSj izf'k{k.k foHkkx½ ds dk;kZy; Kku dazekd 36011@2@2010 ¼vkj{k.k½ fnukad 10 vxLr] 2010 }kjk ;g funsZ'k tkjh fd, x, gS fd gYck dks"Vh@dks"Vh tkfr ds ftu O;fDr;kas gYck dks"Vh@dks"Vh tkfr ds ,sls O;fDr ftUgsa egkjk"V jkT;] ds fy;s tkjh lafo/kku ¼vuqlwfpr tutkfr½ vkns'k 1950 ¼le;≤ ij la'kksf/kr½ ds vk/kkj ij l{ke izkf/kdkjh }kjk vuqlwfpr tutkfr dk izek.k i= tkjh fd;k x;k gS vkSj mudh vuqlwfpr tutkfr ds fy, vkjf{kr in ij fu;qfDr gqbZ gS rFkk fu;qfDr;kW fnukad 28-11-2000 ds iwoZ vafre gks pqdh gS] og izHkkfor ugha gksxh] fdUrq mUgsa fnukad 28-11-2000 ds ckn vkj{k.k dk ykHk izkIr ugha gksxkA 4- ekuuh; mPpre U;k;ky; }kjk egkjk"V jkT;] fo:) fefyUn ,oa vU; ,-vkbZ-vkj- 2001 ,l-lh- 393 ds ekeysa esa ifjnRr fu.kZ; ds fdz;kUo;u gsrq Hkkjr ljdkj dkfeZd yksd f'kdk;r ,oa isa'ku ea=ky; }kjk tkjh mDr Kkiu fnukad 10 vxLr 2010 ,oa e/;izns'k 'kklu lkekU; iz'kklu foHkkx }kjk tkjh ifji= dza- ,Q 7&21@2011@vk-iz-@,d fnukad 07-03-2011 ds le:i NRrhlx< jkT; 'kklu }kjk Hkh ifji= tkjh fd;s tkus ds laca/k eas fof/k foHkkx dk vfHker izkIr djus ds mijkUr] jkT; 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd] Hkkjr ljdkj ds mDr dk;kZy;hu Kki fnukad 10 vxLr] 2010 ds vuqlj.k eas mijksDrkuqlkj izko/kku NRrhlx< jkT; eas Hkh fd;k tk,A vr,o ,rn~}kjk vfHkfu/kkZfjr fd;k tkrk gS fd] gYck dks" Vh@ dks"Vh tkfr ds ,sls O;fDr ftUgsa e/;izns'k jkT; fd fy;s tkjh lafo/kku ¼vuqlwfpr tutkfr½ vkns'k 1950 ¼le;≤ ij la'kksf/kr½ ds vk/kkj ij l{ke izkf/kdkjh }kjk vuqlwfpr tutkfr dk izek.k i= tkjh fd;k x;k W.P.(S)No.147/2016 and other connected matters Page 35 of 43 gS] vkSj mUgs vuqlwfpr tutkfr ds vkjf{kr in ij fu;qfDr nh xbZ gS rFkk mudh fu;qfDr fnukad 28-11- 2000 ds iwoZ vfUre gks pqdh gS mudh fu;qfDr;kW izHkkfor ugha gksxhA fdUrq mUgsa Hkfo"; esa vuqlwfpr tutkfr dk ughsa ekuk tk,xk vkSj fnukad 28-11-2000 ds ckn vkj{k.k dk ykHk ugha fn;k tk,xkA^^
31. Now, the recent circular dated 11-1-2016 issued by the State Government by the impugned order Annexure P-1 states as under: -
^^fo"k;%& vuqlwfpr tutkfr ds vkjf{kr inksa ij gyck dks"Vh@gych dks"Vh@dks"Vh tkfr ds mEehnokjkas ds laca/k eas fu;qfDr & eku- mPpre U;k;ky; }kjk egkjk"Vª ljdkj fo:) fefyUn rFkk vU; eas ikfjr fu.kZ; dk fdz;kUo;u djus ds laca/k eas tkjh funsZ'k fnukad 01-10-2011 dks fujLr djus ckcr~A &&&&& mijksDr fo"k;d lk-iz-fo ds ifji+= dz- ,Q 13&4@2011@1&3] fnukad 01-10-2011 eku- loksZPp U;k;y; }kjk State of Maharashtra V/s Milind and Others AIR 88 2001 Supreme Court 303 esa ikfjr fu.kZ; fnukad 28-11-2000 ds ifjizs{; eas tkjh fd;k x;k gS] fdUrq eku- loksZPp U;k;ky; us Union of India V/s Dattatray S/o Namdeo Mendhekar and Others AIR 2008 SC 1678 essa ikfjr fu.kZ; fnukad 15-02- 2008 esa Milind ds izdj.k eas fn;s x;s fu.kZ; dh ea'kk dk Li"V fuoZpu fd;k gSA lkFk gh ;g Hkh dgk gS fd Milind ds izdj.k dk fu.kZ; ,slk dksbZ fl)kar izfrikfnr ugha djrk fd tgkW fdlh O;fDr us dksbZ fu;qfDr] QthZ tkfr izek.k&i= ds vk/kkj ij izkIr dh W.P.(S)No.147/2016 and other connected matters Page 36 of 43 gks] ogkW mldh lsok, lajf{kr dh tk,aA eku- lokZsP; U;k;ky; us Union of India V/s Dattatray S/o Namdeo Mendhekar and Others AIR 2008 SC 1678 eas Li"V fd;k gS fd%& .......Wherein this Court held that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his service are liable to be terminated. In the latter case, this Court explained Milind thus:
The High Court has granted relief to the respondent and has directed his reinstatement only on the basis of the constitution Bench decision of this Court in State of Maharashtra v. Milind. In our opinion the said judgment does not lay down and such principle of law that where a person secures an appointment by producing a false caste certificate, his services can be protected and an order of reinstatement can be passed if he gives an undertaking that in future he and his family members shall not take any advantage of being member of a caste which is in reserved category.
This Court further held that even in cases of admission to educational institutions, the protection extended by Milind (supra) will be applicable only where the candidate had successfully completed the course and secured the degree, and not to cases where the falsehood of the caste certificate is detected within a short period from the date of admission.
We are of the view that the High Court failed to appreciate the ratio of Milind. Having held that the first respondent had falsely claimed that he belonged to a Scheduled Tribe, it wrongly extended him the benefit of continuing in employment.
2@ eku- loksZPp U;k;ky; }kjk Union of India V/s Dattatray S/o Namdeo Mendhekar and Others AIR 2008 SC 1678 eas fn, x, fu.kZ; ds ifjis{; esa W.P.(S)No.147/2016 and other connected matters Page 37 of 43 lkekU; iz'kklu foHkkx ds ifji= dzekad ,Q 13&4@2011@1&3] fnukad 01-10-2011 dks fujLr fd;s tkus ds laca/k eas fof/k foHkkx ls izkIr vfHker ds ifjizs{; esa jkT; 'kklu ,rn~}kjk iw.kZ fopkjksijkar lkekU; iz'kklu foHkkx }kjk tkjh ifji= dzekad ,Q 13&4@2011@1&3] fnukad 01-10-2011 dks fujLr djrk gSA lkekU; iz'kklu foHkkx ds mDr ifji= fnukad 01-10-2011 ds rgr ftu vf/kdkjh@deZpkjh dh lsok,a foHkkxksa }kjk lajf{kr dh xbZ gSa] ds laca/k eas iz'kkldh; foHkkx }kjk fu;ekuqlkj vko';d dk;Zokgh fd;k tkuk lqfuf'pr fd;k tk,A^^
32. A careful perusal of the office order Annexure P-1 would show that the State Government has first noted the decision of Milind case and thereafter, relying upon Dattatray's case (supra) has revoked the circular dated 1-10-2011. It has failed to take notice of the judgment of the Supreme Court in Milind (supra) and in Vilas's case (supra), which has been later on followed by Kavita Solunke (supra) and R. Unnikrishnan (supra) by which the Supreme Court has clarified that if a person has obtained social status certificate under a bona fide impression and bona fidely that he is Halba whose appointment has become final prior to 28-11- 2000, he is entitled for service protection and it has further been clarified by the subsequent decision particularly Vilas's case and Kavita Solunke (supra), and as such, the order passed by the State Government Annexure P-1 is in W.P.(S)No.147/2016 and other connected matters Page 38 of 43 teeth of the decision rendered by the Supreme Court in Milind (supra) followed by Vilas's case (supra), Kavita Solunke (supra) and R. Unnikrishnan (supra).
33. This would bring me to the next submission raised by Mr. Amrito Das that the order dated 1-10-2011 being an executive instruction cannot be withdrawn with retrospective effect as the benefits have already been conferred. Executive instructions dated 1-10-2011 issued by the General Administration Department, Government of Chhattisgarh wherein service protection was provided to the employees belonging to Halba Koshti / Koshta who have been issued caste certificate by the competent authority and whose appointments have become final on or before 28-11- 2000 and it was issued pursuant to the law laid down by the Constitution Bench of the Supreme Court in Milind (supra). The law in this regard is well settled that the power of retrospective cancellation / withdrawal of execution instruction should be expressly available and if such power / express authority is not available then the executive is bound to act within the broad sweep of Article 14 of the Constitution of India.
34. In a decision in the matter of Govind Prasad v. R.G. Parsad and others15, it has been held by the Supreme Court that an executive order of the Government cannot 15 (1994) 1 SCC 437 W.P.(S)No.147/2016 and other connected matters Page 39 of 43 made operative with retrospective effect. Paragraph 11 of the report states as under: -
"11. ...... It is settled law that an executive order of the Government cannot be made operative with retrospective effect. ......"
35. Likewise, in R. Unnikrishnan (supra), the Supreme Court has held as under: -
"36. The law declared by this Court in Palghat Jilla case16 entitled all Thandans including those who were Ezhuvas and Thiyyas from Cochin and Malabar region to claim the Scheduled Caste status. That entitlement could be taken away retrospectively only by specific provisions to that effect or by necessary intendment. We see no such specific provision or intendment in the amending legislation to hold that the entitlement was taken away retrospectively so as to affect even those who had already benefited from the reservation for Scheduled Caste candidates. At any rate, a certificate issued an Ezhuva known as Thandan who was a native of Cochin and Malabar region of the State could not be withdrawn as the Constitution (Scheduled Castes) Order, 1950 did not make a distinction between the two categories of Thandans till the Amendment Act of 2007 for the first time introduced such a difference."
36. From the aforesaid analysis, it is quite vivid that the petitioners were granted the status of ST category by the competent authority way back and their date of issuance of caste certificate has been mentioned in preceding paragraph. They were granted the certificate of ST "Halba" bona fidely which was found to be "Halba Koshti". The legal 16 Palghat Jilla Thandan Samudhaya Samrakshna Samithi v. State of Kerala, (1994) 1 SCC 359 W.P.(S)No.147/2016 and other connected matters Page 40 of 43 position has been made clear by the Constitution Bench decision in this regard by the Supreme Court in the judgment of Milind (supra) delivered on 28-11-2000 protecting the service benefit of those appointments that have become final. All petitioners were appointed prior to 29-11-2000 as mentioned in foregoing paragraph that all were appointed prior to 28-11-2000. The Caste Scrutiny Committee constituted under the Act of 2013 found the petitioners to be Halba Koshti and further extended the benefit of circular of the Central Government dated 10-8- 2010 which is based on the judgment of the Supreme Court in Milind (supra) and the circular dated 1-10-2011 which is also based on the judgment of the Supreme Court in Milind (supra) as well as the office memorandum of the Central Government dated 10-8-2010. The State Government by its circular dated 11-1-2016 has withdrawn its earlier circular dated 1-10-2011.
37. The petitioners have already been granted the benefit of circular dated 1-10-2011 by the petitioners' respective Administrative Departments protecting their services either by passing express order granting protection or impliedly by continuing their services even after decision of the Caste Scrutiny Committee holding them not belonging to ST category. The circular dated 11-1-2016 (Annexure P/1) has W.P.(S)No.147/2016 and other connected matters Page 41 of 43 been passed not only revoking the circular dated 1-10-2011 but also directing the Administrative Departments to proceed in accordance with law against those officers/ employees who services are protected by order dated 1-10- 2011 by directing in paragraph two of the order which states as under:-
**2@ eku- loksZPp U;k;ky; }kjk Union of India V/s. Dattatray S/o. Namdeo Mendhekar and Others - AIR 2008 SC 1678 esa fn, x, fu.kZ; ds ifjis{; esa lkekU; izlk'ku foHkkx ds ifji= dzekad ,Q 13&4@2011@1&3] fnukad 01-10-2011 dks fujLr fd;s tkus ds laca/k esa fof/k foHkkx ls izkIr vfHker ds ifjizs{; esa jkT; 'kklu ,rn~}kjk iw.kZ fopkjksijkar lkekU; iz'kklu foHkkx }kjk tkjh ifji= dzekad ,Q 13&4@2011@1&3] fnukad 01-10-2011 dks fujLr djrk gSA lkekU; iz'kklu foHkkx ds mDr ifji= fnukad 01-10-2011 ds rgr ftu vf/kdkjh@ deZpkjh dh lsok,a foHkkxksa }kjk lajf{kr dh xbZ gSa] ds laca/k esa iz'kkldh; foHkkx }kjk fu;ekuqlkj vko';d dk;Zokgh fd;k tkuk lqfuf'pr fd;k tk,A**"
38. Learned State counsel on the one hand submits that the writ petitions have been filed on the basis of apprehension only and actually, no order has been passed against the petitioners. On being asked, learned State counsel submits that the Government is likely to proceed against the petitioners on the basis of the impugned order (Annexure P/1).
W.P.(S)No.147/2016
and other connected matters Page 42 of 43
39. It is well settled law that the apprehension of harm if well founded can furnish a cause of action even in absence of specific order of the Government being effective and writ proceedings can be initiated in view of anticipated prejudice and adverse effect and consequence. In the matter of Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and another 17, Their Lordships of the Supreme Court has held as under:-
"2. ..... The institution of a writ proceeding need not await actual prejudice and adverse effect and consequence. An apprehension of such harm, if the same is well founded, can furnish a cause of action for moving the Court. ....."
40. Since the petitioners were bona fidely granted ST status by the competent authority long back and their appointments have become final before 28-11-2000, they are entitled for their service protection as per the decision rendered by the Supreme in Milind case (supra) followed by Vilas (supra), Kavita Solunke (supra) and R. Unnikrishnan (supra), and by circular dated 10-8-2010 the Central Government has also followed that judgment and the High Power Certification Scrutiny Committee has also held the petitioners to be entitled for service protection and benefit of the circular granted to the petitioners cannot be taken away with retrospective effect and therefore the order dated 11-1-2016 17 (2016) 2 SCC 725 W.P.(S)No.147/2016 and other connected matters Page 43 of 43 (Annexure P/1) so far it directs the Administrative Departments to take action in respect of the protection granted by circular dated 1-10-2011 is held to be bad qua the writ petitioners herein only and it is held that the petitioners are entitled for their service protection as held in Milind (supra) followed in Vilas (supra), Kavita Solunke (supra) and R. Unnikrishnan (supra) as well as by the office order of the Central Government dated 10-8-2010 and it is directed that no action will be taken to withdraw the benefit already granted by the High Power Certification Scrutiny Committee in its order in terms of the order dated 1-10-2011.
41. The writ petitions are allowed to the extent indicated herein- above leaving the parties to bear their own cost(s).
Sd/-
(Sanjay K. Agrawal) Judge Soma