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“Halba, Halbi” 10 In the State of Maharashtra, the ambit of Entry 19 became a bone of contention particularly with persons belonging to the Halba-Koshti community claiming to be a sub-tribe of the designated tribe. A Division Bench of the High Court spoke on the issue on 4 September 1985 in Milind Sharad Katware Vs. State of Maharashtra2. The Division Bench held that Halba-Koshti constituted a sub-division of the tribe “Halba-Halbi” under Entry 19 of the Scheduled Tribes Order, 1950. Halba-Koshtis were, in the view of the Division Bench, entitled to the status of a Scheduled Tribe on the ground that they were comprehended within a designated tribe namely, Halba-Halbi. In coming to this conclusion, the Division Bench opined that it is permissible to enquire whether a sub-division of a tribe 2 (1986) 1 Bom CR 403 PART A which is not mentioned in the Scheduled Tribes Order, 1950 is nevertheless a part and parcel of a tribe which is designated.
“15…We, in the peculiar facts and circumstances of this case, are not inclined to go into the question as regards purported commission of fraud by the appellant, particularly, when the University admitted him without any demur whatsoever. We are doing so having regard to the doctrine of proportionality. The appellant has suffered a lot. He might not be entirely responsible therefor. He might have been under a bona fide belief that he comes within the purview of notified category. We, therefore, albeit with much reluctance accept the fervent and impassionate plan made by the learned counsel appearing for the appellant that he be allowed to obtain the degree. The same shall, however, be subject to payment of Rs 1 lakh in favour of the State of Maharashtra so as to recompense the State to some extent the amount spent on him for imparting education as a reserved category candidate.” (Id at p. 507) PART A 27 In Central Warehousing Corporation Vs. Jagdishkumar Vithalrao Panjankar14, decided on 16 January 2007, a Bench of two Judges of this Court in the exercise of its jurisdiction under Article 142 protected the services of the respondent who had worked from 1984 on the strength of a claim to belong to the Halba Scheduled Tribe though it was found that he was a Koshti. A similar protection has been granted in State of Maharashtra Vs. Om Raj15 by a Bench of two Judges where admission, or as the case may be, appointment to a service was obtained on the basis of a claim to belong to the Halba Scheduled Tribe though the individuals concerned were found to be Koshti. The decision dealt with a batch of cases which were held to be covered by Milind. 28 The long tenure of an employee was pressed in aid in a judgment of a Bench of two Judges of this Court in Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar16 as a ground for the exercise of the jurisdiction under Article 142. In that case the first respondent was, on the strength of a Scheduled Tribe certificate of August 1987, employed in the State Pollution Control Board and his status as a member of a Scheduled Tribe was confirmed in a decision of the High Court in August 1988. The Scrutiny Committee, however, invalidated the claim of the respondent to belong to the Halba Scheduled Tribe. However, the High Court held that its earlier decision of August 1988 had attained finality and that the status of the first respondent could not be questioned again. This Court by its judgment held that when an advantage is obtained by a person in violation of the 15 (2007) 14 SCC 488 16 (2008) 9 SCC 54 PART A constitutional scheme a constitutional fraud is committed. The earlier decision of the High Court which was rendered without a factual foundation was held not to operate as res judicata. However, since the Bombay High Court had allowed the writ petition filed by the respondent in 1988 and he had continued in service since long, recourse was taken to the jurisdiction under Article 142, to protect his service albeit on the basis that he belongs to the general category. The benefit of the protection of service was again granted by a Bench of two judges in Punjab National Bank Vs. Vilas Govindrao Bokade17. A similar protection has been extended in Vijaykumar Vs. State of Maharashtra18, Damodhar Vs. Secretary, Industrial, Energy & Labour Department19, Raiwad Manojkumar Nivruttirao Vs. State of Maharashtra20 and Dattu Namdev Thakur Vs. State of Maharashtra21.
7.2. Where there is some confusion concerning the eligibility to the benefits flowing from Scheduled Caste or Scheduled Tribe status, such as issuance of relevant certificates to persons claiming to be “Koshtis” or “Halba-Koshtis” under the broadband of “Halbas”, protection of employment will be available with the rider that these persons will thereafter be adjusted in the general category thereby rendering them ineligible to further benefits in the category of Scheduled Caste or Scheduled Tribe as the case may be. 7.3. This benefit accrues from the decision of this Court inter alia in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar [(2008) 9 SCC 54 : (2008) 2 SCC (L&S) 802] which was rendered under Article 142 of the Constitution of India. Realising the likely confusion in the minds of even honest persons the Resolutions/Legislation passed by the State Governments should spare some succour to this section of persons. This can be best illustrated by the fact that it was in Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] that the Constitution Bench clarified that “Koshtis” or “Halba-Koshtis” were not entitled to claim benefits as Scheduled Tribes and it was the “Halbas” alone who were so entitled. A perusal of the judgment in Vilas[Punjab National Bank v. Vilas, (2008) 14 SCC 545 : (2009) 2 SCC (L&S) 143] by Sirpurkar, J., as well PART A as Solunke [Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430 : (2012) 2 SCC (L&S) 609] makes it clear that this protection is available by virtue of the decisions of this Court; it is not exclusively or necessarily predicated on any Resolution or Legislation of the State Legislature.” (Id. at pgs. 533-534) The High Court in that case had while rejecting the claim of the appellant relied upon the decision of three Judges in Dattatray (supra). However, this Court held that the decision in Dattatray cannot be construed to have overruled earlier decisions of two Judges. In that context this Court has held that :

42 In Kavita Solunke (supra) the appellant had been appointed on the strength of a claim to belong to the Halba Scheduled Tribe in August 1995. After the tribe claim was verified by the Scrutiny Committee it was found that the 35 (2007) 5 SCC 336 at paras 7-9 and 13 36 (2008) 4 SCC 612 at paras 5-7 37 (2008) 5 SCC 652 at paras 5 & PART A appellant was in fact a Koshti and not a member of the Halba Scheduled Tribe following which an order of termination was issued. The sole ground on which the termination was challenged and which was accepted by the bench of two judges was that since the appointment of the appellant had attained finality, it could not have been set aside on the ground that the appellant did not belong to a Scheduled Tribe. Maharashtra Act XXIII of 2001 was evidently not placed before the court in Kavita Solunke (supra) and has not been noticed. Upon the enactment of the Act, the invalidation of a caste certificate by the Scrutiny Committee would as a statutory mandate result in the withdrawal of the benefits which had accrued on the strength of the claim and where a candidate had been appointed to a reserved post, termination would follow the finding that the candidate did not belong to the category for whom the post was reserved. If the provisions of Maharashtra Act XXIII of 2001 were to be considered by the bench of two judges, it would be apparent that under the provisions of Section 7 the Scrutiny Committee is empowered to verify a caste certificate whether issued before or after the commencement of the Act and if it comes to the conclusion that the caste certificate is false and is obtained fraudulently it is empowered to order its cancellation and confiscation. Section 10 provides for the withdrawal of benefits secured when a caste certificate is concerned for its falsity. Falsity is adjudicated upon when an order of cancellation is passed under Section 7. Once a caste certificate is cancelled by the Scrutiny Committee under Section 7, the individual affected by the order has a remedy to challenge its cancellation before the High Court under Article 226. If the challenge fails or if the challenge is given up, and the only relief sought is of the protection of service, or of the admission to PART A the course, the grant of such protective relief simpliciter would be impermissible. The withdrawal of the benefit under Section 10 follows an order of cancellation under Section 7. Once the conditions for cancellation are fulfilled and an order of cancellation is passed under Section 7 withdrawal of all benefits which have accrued on the basis of the claim (which stands invalidated) cannot be opposed on a theory that there was an absence of dishonest intent. 43 The rationale which weighed with the Bench of two Judges which decided Kavita Solunke (supra) was that if the Halba Koshti had been treated as Halba even before the appellant had joined the service and if the only ground for ouster was the law declared in Milind (supra), there was no reason why protection against ouster to appointees whose applications had become final be not also extended to the appellant. Placing reliance on the decision in Kavita Solunke (supra) another Bench of two Judges of this Court in Shalini (supra) propounded a test of dishonest intent for the grant or denial of protection to persons whose caste claims had been invalidated. The view of the Court emerges from the following extract contained in para 9 of the decision which reads thus :