Madhya Pradesh High Court
Vilas Kumar Bhugaonkar vs The State Of Madhya Pradesh on 8 January, 2013
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF MADHYA PRADESH,
JABALPUR
W.P. No.10502/11(s)
Vilas Kumar Bhugaonkar
.. .. Petitioner
Vs./-
State of M.P. and others
.. .. Respondents
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For the Petitioner : Shri Ajay Mishra, learned
Senior Counsel with Shri
Pratyush Tripathi, Advocate
For Respondents : Shri Prashant Singh,
No.1 and 2 learned Additional Advocate
General
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Present:
HON'BLE MR. JUSTICE ALOK ARADHE
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ORDER
(08.1.2013) In this petition, the petitioner has inter-alia challenged the validity of the order dated 3.8.2010 by which services of the petitioner have been terminated in the light of the recommendation made by High Power Scrutiny Committee that the petitioner has illegally obtained the caste certificate. The petitioner has also challenged the validity of the order dated 2.9.2011 passed by the appellate authority by which the appeal preferred by the petitioner has been dismissed. The petitioner also seeks a direction to the respondents to reinstate him in service with all consequential benefits.
2. Background facts leading to the controversy involved in the writ petition briefly stated are that as per version of the petitioner, his ancestors belonged to 2 "Halba" Tribe and were originally habitants of Baster District in the erstwhile State of Madhya Pradesh. In search of employment, they migrated to Bhugaon in District Nagpur. The father of the petitioner was appointed in M.P. Civil Secretariat Services in the year 1946 and was posted in Nagpur and served in the erstwhile State of Madhya Pradesh till 16.12.1957. On re-organisation of the State of Madhya Pradesh, the services of the father of the petitioner were allocated to the State of Madhya Pradesh and he was posted at Bhopal. A caste certificate dated 30.6.1979 was issued to the petitioner by the District Organiser, Tribal Welfare Department, Bhopal, certifying that the petitioner is a Scheduled Tribe being member of Halba community.
3. The petitioner was appointed as Assistant Engineer in Public Health Engineering Department on 12.11.1984. Thereafter, the petitioner was appointed on probation period of two years. The petitioner was promoted on the post of Executive Engineer in the year 2001 and subsequently on the post of Superintending Engineer vide order dated 27.6.2005. The petitioner was given the officiating charge of the post of Chief Engineer, P.W.D. (Bridge), Bhopal vide order dated 1.4.2008. A complaint was made to the Chairman of the M.P. Scheduled Tribe Commission on 20.12.2007 in which it was alleged that caste certificate issued in favour of the petitioner is false. Thereupon, the matter was referred to the High Power Caste Scrutiny Committee. The High Power Caste Scrutiny Committee vide its report dated 21.6.2010 found that the caste certificate has illegally been issued to the petitioner and the petitioner belongs to Other Backward Class and is not a member belonging to the Scheduled Tribe. Accordingly, the caste certificate issued in favour of the petitioner was cancelled. On the basis of the report submitted by the High Power Scrutiny Committee, the 3 services of the petitioner were terminated vide order dated 3.8.2010. The aforesaid order was affirmed in appeal by the appellate authority vide order dated 2.9.2011. In the aforesaid factual background, the petitioner has approached this Court.
4. Learned senior counsel for the petitioner submitted that in pursuance of the order of the Supreme Court in the case of State of Maharashtra Vs. Milind and others , AIR 2001 SC 393, the Central Government has issued a circular dated 10.8.2010 by which protection has been afforded to the admissions and the appointments which have become final on or before 28.11.2000. It is further submitted that State Government has also issued a circular dated 7.3.2011 in pursuance of the circular issued by the State Government and in the light of decision of the Supreme Court in the case of Milind (supra) wherein it is provided that admissions and appointments which have attained finality prior to 28.11.2000 shall not be disturbed. However, such person shall not be entitled to benefit of reservation after 28.11.2000. While inviting the attention of this Court to the opinion which has been given by the Advocate General as well as the Law Department, it is submitted that the circular issued by the State Government dated 7.3.2011 has retrospective operation and therefore the order of termination is liable to be quashed.
5. On the other hand, while opposing the submissions made on behalf of the petitioner, it is submitted that the case of Milind (supra) does not lay down any such principle of law that where a person secures an appointment by producing false certificate, his services can be protected and an order of reinstatement has to be passed. In support of his submissions, learned Additional Advocate General has placed reliance on the decision of the Supreme Court 4 reported in Bank of India and another Vs. Avinash D.Mandivikar , 2005(4) MPLJ 303, Additional General Manager, Human Resource, BHEL, Ltd., Vs. Suresh Ramkrishna Burde , 2007(7) 3 MPLJ and Union of India Vs. Dattaray Namdeo Mendhekar and others , AIR 2008 SC 1678.
6. I have considered the submissions made by learned counsel for the parties. In the case of Milind (supra), the Supreme Court was dealing with a matter pertaining to admission to Medical College. The question which arose for consideration in the aforesaid case was whether it was open for the State Government or the Courts or any other authority to modify, amend or alter the list of Scheduled Tribe and in particular whether Halba/Koshti was a sub-division of Halba Tribe. It was held that it was not permissible to amend or alter the list of Scheduled Tribes by including any sub- divisions or otherwise. Paragraph 37 of the judgment which is penultimate paragraph reads as under:-
"37. Respondent No.1 joined the medical course for the year 1985-86. Almost 15 years have passed by now. We are told he has already completed the course and may be he is practising as doctor. In this view and at this length of time it is for nobody's benefit to annul his Admission. Huge amount is spent on each candidate for completion of medical course. No doubt, one Scheduled Tribe candidate was deprived of joining medical course by the admission given to respondent No.1. If any action is taken against respondent No.1, it may lead depriving the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect the degree obtained by him and his practising as a doctor. But 5 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 © No.16372/85 and other related affairs, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment."
7. The aforesaid judgment was considered by the Supreme Court in the case of Bank of India (supra) wherein the respondent who was an employee of Bank of India and had obtained the appointment on the pretext that he belongs to a member of Scheduled Tribe, claimed the benefit of the judgment of the Supreme Court in the case of Milind (supra). It was held that benefit of protection given in Milind's case cannot be extended to the employee, as the protection was given under the peculiar factual background of the case. Similar view was taken by the Supreme Court in the case of Additional General Manager, Human Resource, BHEL, Ltd., (supra) wherein the Supreme Court held that the judgment in the case of Milind (supra) 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. It was further held that where a person secures an appointment on the basis of 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. Similarly, in Union of India (supra), it was held that when a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate 6 belonging to scheduled caste/ tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation. At this stage, it would be appropriate to advert to the circular dated 7.3.2011 issued by the State Government. The aforesaid circular, even if the same is treated to be a policy decision, has been issued on 7.3.2011. The aforesaid policy decision taken by the State Government is contrary to law as interpreted by the Supreme Court from time to time in the case of Milind supra and, therefore, in the considered opinion of this Court, no writ of mandamus can be issued to enforce the same. See: Jaipur Development Authority and others Vs. Vijay Kumar Data and another , (2011) 12 SCC 94. Therefore, it is not necessary to go into the question of prospectivity or retrospectivity of the aforesaid circular/ policy decision which has been taken by the State Government.
8. It is pertinent to mention here that petitioner has challenged the report which has been submitted by the High Power Caste Scrutiny Committee in a writ petition namely W.P. No.10230/11, which was listed today. However, the same has been adjourned in view of the prayer made by learned counsel for the parties. Needless to state that in case the aforesaid writ petition is allowed, the petitioner would be at liberty to seek recall of this order.
9. In view of preceding analysis, I do not find any merit in the writ petition. The same is dismissed with liberty as aforesaid.
(Alok Aradhe)
a. Judge
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