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VIKRAMAJIT SEN, J.

1. Leave granted. This Appeal challenges the Order of the Division Bench of the High Court of Judicature at Bombay, Nagpur Bench passed on 25.11.2009 in L.P.A. No.527 of 2009 affirming the Order of the learned Single Judge who had dismissed the Appellant’s Writ Petition essentially on the opinion of the Three-Judge Bench in Union of India v. Dattatray (2008) 4 SCC

612. The Order impugned before the learned Single Judge was that of the School Tribunal, Nagpur which had granted reinstatement of the Appellant with continuity of service and full back wages. The Appellant had been employed as an Assistant Teacher against a vacancy earmarked for Scheduled Tribe candidate, she having filed a Caste Certificate dated 8.7.1974 issued by the Competent Authority testifying her to belong to the “Halba Scheduled Tribe Category”. The question before us is indeed a vexed one, as are all conundrums arising out of claims for Scheduled Caste or Scheduled Tribe status and resultant benefits. The confusion is made worst confounded because of exclusions or inclusions of certain castes or classes of people keeping only electoral advantages in mind. Retrospectivity is inherent in subsequent enumerations under Articles 341 and 342 since those selection are immutable or unalterable; all change therefore, is only clarificatory in content, because the endeavour of Parliament is to make the enumerations more detailed by mentioning sub-castes or the synonyms of the selected castes and tribes. The inclusion of new castes/tribes was intended by the framers of the Constitution to be impermissible, in order “to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President” as per the Constituent Assembly oration of Dr. Ambedkar, which stands accepted by the Apex Court at least twice, as in State of Maharashtra v. Milind (2001) 1 SCC 4 and E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394. We have to decide whether the Appellant’s employment was justifiably terminated because a Caste Scrutiny Committee after a passage of several decades, found her disentitled to claim the benefits enuring to Halbas.

3. This slant in the situation arose in State of Maharashtra v. Om Raj (2007) 14 SCC 488 whereby several appeals came to be decided simply on the basis of Milind, the gist of which was that protection so far as the benefit then claimed on the strength of being Koshtis would be preserved, but the incumbent would not be entitled to any further benefit in the future. To remove confusion, State of Maharashtra v. Viswanath [C.A.No.7375 of 2000] has also been decided in Om Raj with other appeals. In Punjab National Bank v. Vilas (2008) 14 SCC 545, the employee had provided a Halba Scheduled Tribe Certificate and gained employment in 1989 which was invalidated by the Scheduled Tribe Scrutiny Committee leading to the termination of the Respondent’s service by an order dated 4.2.2002. Drawing from the previous decision in Milind this Court reiterated that Scheduled Tribe status had not been conferred either on Halba Koshti or Koshti but on ‘Halba’ alone. This Court, thus, once again protected the employment of the Respondent but clarified that he would not be entitled to claim further promotion in the Scheduled Tribe category. It was also declared that the Government Resolution dated 30.6.2004 would apply to all employment with the “government/semi-government and Boards, Municipalities, Municipal Corporations, District Councils, Cooperative Banks, government undertakings, etc.”

4. Almost one year later this very question, which has led to a deluge of litigation already, received the attention of a Three- Judge Bench in Dattatray. The Respondent, claiming to belong to the Scheduled Tribe ‘Halba’, was appointed as Assistant Professor of Psychiatry in G.B. Pant Hospital, New Delhi against a post reserved for Scheduled Tribes. A verification of the Certificate of Scheduled Tribe disclosed that he did not belong to the Halba Tribe. The second challenge to this finding, before the High Court, also proved to be futile. However, on what has been held to be a misinformed reading of the Constitution Bench decision in Milind, the High Court thought it fit to protect his service. The Three-Judge Bench referred to two other decisions of this Court namely Bank of India v. Avinash D. Mandivikar (2005) 7 SCC 690 and BHEL v. Suresh Ramkrishna Burde (2007) 5 SCC 336 and noting that the employee had falsely claimed that he belonged to the Scheduled Tribe/Halba, set aside the judgment of the High Court. Whilst it permitted settlement of employee-Doctor’s terminal benefits it placed an embargo on his receiving any pensionary benefits. This conclusion was arrived at by the Three-Judge Bench without noting State of Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481 where the impugned Order passed by the Division Bench of the High Court of Judicature at Bombay directing the reinstatement of a person belonging to the ‘Koshti’ Tribe, (not even ‘Koshti- Halbas’) was set aside.

5. It is evident that there is a plethora of precedents on this aspect of the law, and perhaps for this reason Counsel for the parties were remiss in drawing our attention in the present proceedings to the detailed judgment in Kavita Solunke v. State of Maharashtra (2012) 8 SCC 430, in which one of us, Thakur J, had analysed as many as eleven precedents including those discussed above. After reviewing all the judgments it was held, in the facts and circumstances of that case, that since that party had not intentionally or with dishonest intent fabricated particulars of a scheduled tribe with a view to obtain an undeserved benefit in the matter of appointment, she was entitled to protection against ouster from service, but no other benefit. In view of the comprehensive yet concise consideration of case law in Solunke, any further analysis would make the present determination avoidably prolix, and therefore our endeavour will be to cull out the principles which would be relevant for deciding suchlike conundrums. These are - (a) If any person has fraudulently claimed to belong to a Scheduled Caste or Scheduled Tribe and has thereby obtained employment, he would be disentitled from continuing in employment. The rigour of this conclusion has been diluted only in instances where the Court is confronted with the case of students who have already completed their studies or are on the verge of doing so, towards whom sympathy is understandably extended; (b) 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; (c) this benefit accrues from the decision of this Court inter alia in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54 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 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 by Sirpurkar J, as well as Solunke 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; (d) Where a Resolution or Legislation exists, its raison d’etre is that protection is justified in presenti (embargo on removal from service or from reversion) but not in futuro (embargo on promotions in the category of Scheduled Caste or Scheduled Tribe).