My Case Laws: 2015

When A Statute Requires Anything To Be Done By A Statutory Authority Or A Government Officer Within A Prescribed Period And The Citizen Has No Control Over The Statutory Authority Or The Government Officer Requiring Him To Do The Thing Within The Specified Time, The Provision Of A Statute Or Rule Requiring The Thing To Be Done Within The Specified Time Must Be Held To Be Directory

Headings: Caste Validity, Disqualificaiton from Membership, Mandaotry Directory, Non-Production of Caste Validity

It is trite to say that when a statute requires anything to be done by a statutory authority or a government officer within a prescribed period and the citizen has no control over the statutory authority or the government officer requiring him to do the thing within the specified time, the provision of a statute or rule requiring the thing to be done within the specified time must be held to be directory. This is because the citizen has no control over the statutory authority or the government officer and he cannot suffer from the negligence of the statutory authority or the government officer in failure to perform the duty within the specified time.

This principle was enunciated by the Constitution Bench of the Supreme Court in Dattatraya Moreshwar v. The State of Bombay 1952 AIR 181, 1952 SCR 612, wherein Das J. observed:

In my opinion, this contention of the learned Attorney-General must prevail. It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.

Dadasaheb Arjun Gulve vs The State Of Maharashtra And Ors.

Citation: 2008 (2) BomCR 712

20 December, 2007

Bombay High Court
Author: D Karnik J.
Bench: S Mhase, D Karnik J. J.

How Many Times a Cheque can be Presented

Headings: Dishonour of Cheque

“ A cheque can be presented any number of times during the period of its validity by payee. On each presentation of the cheque and its dishonour a fresh right – and not cause of action – accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under Cl (b) of Sec. 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque.”

AIR 1998 SUPREME COURT 3043

Courts Not to Insist on Attendance of Public Functionaries : Supreme Court

Headings: Practice and Procedure

Holding that the trust and faith reposed in the judiciary should not be allowed to be frittered away, the Supreme Court in a recent decision [State of U.P. & Ors. v. Jasvir Singh & Ors.] has declared that directions by the Court for ensuring attendance of public functionaries in Courts should be exceptional and not the norm of the day. Holding that "requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly", the Supreme Court served an apt reminder to the Courts to exercise their powers with caution.

The Court inter alia observed as under;

    6. The fact that the issue relating to increase of compensation is pending in appeals before the High Court in pursuance of the order of remand by this Court, is not in dispute. The quantum of compensation will have to be decided in those appeals and not in a writ petition. As on date, there is no order either in the appeal or the writ petition determining any amount (other than what was awarded by the Reference Court) as due to the respondents. The contention and prayer of the respondents in the writ petition that fresh notifications should be issued regarding the acquisitions and the compensation should be determined with reference to the current rates as on the date of such fresh notification and not as on 18.8.1981, is a matter that is yet to be decided in the writ petition. As both the writ petition and the appeals are pending, it cannot be said that there is any delay on the part of the state government or its officers in effecting payment of compensation. The delay at present is in fact on account of the pendency of the matters before the High Court. If the High Court was of the view that the matter was getting unnecessarily delayed, or that any injustice had been caused to the land owners, it ought to have heard the writ petition finally and decided the dispute on merits instead of listing the matter on several days and asking different senior officers of the state government to be present and virtually intimidate them to agree for a settlement by paying compensation at current market value instead of with reference to 18.8.1981. The procedure and method adopted by the Division Bench of the High Court, to say the least, is improper and requires to be deprecated.

    7. It is a matter of concern that there is a growing trend among a few Judges of the High Court to routinely and frequently require the presence, in court, of senior officers of the government and local and other authorities, including officers of the level of Secretaries, for perceived non-compliance with its suggestions or to seek insignificant clarifications. The power of the High Court under Article 226 is no doubt very wide. It can issue to any person or authority or government, directions, orders, writs for enforcement of fundamental rights or for any other purpose. The High Court has the power to summon or require the personal presence of any officer, to assist the court to render justice or arrive at a proper decision. But there are well settled norms and procedures for exercise of such power.

    8. This court has repeatedly noticed that the real power of courts is not in passing decrees and orders, nor in punishing offenders and contemnors, nor in summoning the presence of senior officers, but in the trust, faith and confidence of the common man in the judiciary. Such trust and confidence should not be frittered away by unnecessary and unwarranted show or exercise of power. Greater the power, greater should be the responsibility in exercising such power. The normal procedure in writ petitions is to hear the parties through their counsel who are instructed in the matter, and decide them by examining the pleadings/affidavit/evidence/documents/material. Where the court seeks any information about the compliance with any of its directions, it is furnished by affidavits or reports supported by relevant documents. Requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly. The court may also require personal attendance of the officers, where it finds that any officer is deliberately or with ulterior motives withholding any specific information required by the court which he is legally bound to provide or has misrepresented or suppressed the correct position .

    9. Where the State has a definite policy or taken a specific stand and that has been clearly explained by way of affidavit, the court should not attempt to impose a contrary view by way of suggestions or proposals for settlement. A court can of course express its views and issue directions through its reasoned orders, subject to limitations in regard to interference in matters of policy. But it should not, and in fact, it cannot attempt to impose its views by asking an unwilling party to settle on the terms suggested by it. At all events the courts should avoid directing the senior officers to be present in court to settle the grievances of individual litigants for whom the court may have sympathy. The court should realize that the state has its own priorities, policies and compulsions which may result in a particular stand. Merely because the court does not like such a stand, it cannot summon or call the senior officers time and again to court or issue threatening show cause notices. The senior officers of the government are in-charge of the administration of the State, have their own busy schedules. The court should desist from calling them for all and sundry matters, as that would amount to abuse of judicial power. Courts should guard against such transgressions in the exercise of power. Our above observations do not of course apply to summoning of contemnors in contempt jurisdiction.

    10. We have made the above observations rather reluctantly. Our observations should not be construed as restricting or limiting the exercise of the extraordinary jurisdiction of High Courts under Article 226 of the Constitution of India. The observations are intended to be guidance for self-regulation and self-restriction by courts. It became necessary as we have noticed that the learned Presiding Judge of the Bench has been frequently making such orders directing senior officers of the Government to be present and settle claims. It is a coincidence that another case where a similar procedure was adopted by the learned Presiding Judge of the bench, came up before us today Lake Development Authority, Nainital vs. Heena Khan (CA No.10087-10090 of 2010 decided on 26.11.2010). We have no doubt that the learned Judge bona fide believes that by requiring the presence of senior officers, he could expedite matters and render effective justice. But it is not sufficient that the object of the Judge is noble or bonafide. The process of achieving the object should be just and proper, without exceeding the well recognised norms of judicial propriety.

    11. In this context we may refer to the following observations of this court in State of Gujarat vs. Turabali Gulamhussain Hirani - 2007 (14) SCC 94 :

"A large number of cases have come up before this Court where we find that learned Judges of various High Courts have been summoning the Chief Secretary, Secretaries to the Government (Central and state), Directors General of Police, Director-CBI or BSF or other senior officials of the Government. There is no doubt that the High Court has power to summon these officials, but in our opinion that should be done in very rare and exceptional cases when there are compelling circumstances to do so. Such summoning orders should not be passed lightly or as a routine or at the top of a hat. Judges should have modesty and humility. They should realize that summoning a senior official, except in some very rare and exceptional situation, and that too for compelling reasons, is counterproductive and may also involve heavy expenses and valuable time of the official concerned. The judiciary must have respect for the executive and the legislature. Judges should realize that officials like the Chief Secretary, Secretary to Government, Commissioners, District Magistrates, senior police officials, etc. are extremely busy persons who are often working from morning till night."

12. On the facts and circumstances, the interim directions of the Division Bench of the High Court, issued while dealing with a writ petition challenging the acquisition, requiring the Principal Secretary (PWD), Principal Secretary (Finance) or Principal Secretary (Revenue) to be present on different dates, are improper and are liable to be interfered.

Courtesy: http://legalperspectives.blogspot.in/search/label/Practice%20and%20Procedure

Vertical and Horizontal Reservations

Headings: Horizontal Reservation, Reservation, Vertical Reservation

Supreme Court in the case of Anil Kumar Gupta, Etc Vs. State of Uttar Pradesh and ors. [1]

ü Whether the horizontal reservations are overall reservations or compartmentalised reservations ?

The two expressions explained thus:

“Compartmantalised Horizontal Reservation”

“Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalised reservations.”

Illustration:

“Take this very case; out of the total 746 seats, 112 seats (representing fifteen percent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats are also divided proportionately as between O.C.,O.B.C.,S.C. and S.T., 30 seats would be allocated to the O.B.C. category; in other words, thirty special category students can be accommodated in the O.B.C. category; but say only ten special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C. category (they will be available for O.B.C. candidates only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are available in O.C. category or not; the special reservation would be a water tight compartment in each of the vertical reservation classes (O.C.,O.B.C.,S.C. and S.T.).

“Overall horizontal reservation”

As against this, what happens in the over-all reservation is that while allocating the special reservation students to their respective social reservation category, the over-all reservation in favour of special reservation categories has yet to be honoured. This means that in the above illustration, the twenty remaining seats would be transferred to O.C. category which means that the number of special reservation candidates in O.C. category would be 56+20=76. Further, if no special reservation candidate belonging to S.C. and S.T. is available then the proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get transferred to O.C. category. The result would be that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of 112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T. will not be altered.”

ü The Court observed that the government should be conscious of the distinction between overall horizontal reservation and compartmentalised horizontal reservation.

ü The Court gave guidance for future.

“It would have been better - and the respondents may note this for their future guidance - that while providing horizontal reservations, they should specify whether the horizontal reservation is a compartmental one or an overall one.”

ü To avoid complications and intractable problems the court said:

“We are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal reservations are comparmentalised in the sense explained above. In other words, the notification inviting applications should itself state not only the percentage of horizontal reservation(s) but should also specify the number of seats reserved for them in each of the social reservation categories, viz., S.T., S.C., O.B.C. and O.C. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has happened in this case.”

ü What should be the correct procedure while working out reservation?

The wrong way:

To direct the fifteen percent special reservation seats to be filled up first and then take up the O.C. (merit) quota (followed by filling of O.B.C., S.C. and S.T. quotas).

The proper and correct course is:

v first : fill up the O.C.(Open Competition) quota (50%) on the basis of merit:

v then : fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C;

v the third step: find out how many candidates belonging to special reservations have been selected on the above basis.

v Fourth step:

§ in case it is an over-all horizontal reservation

· If the quota fixed for horizontal reservations is already satisfied, no further question arises.

· But if it (i.e. the quota fixed for horizontal reservations) is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted / accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom.

§ In case of compartmentalised horizontal reservation,

· The process of verification and adjustment / accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.

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RAJESH KUMAR DARIA VS. RAJASTHAN PUBLIC SERVICE COMMISSION & ORS.[2]

Nature of horizontal reservation and the manner of its application

It will he advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney Vs.Union of India (1992 Supp (3) SCC 217), the principle of horizontal reservation was explained thus (para 812) :

"..... all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations.' The reservations in favour of Scheduled Castes,Scheduled Tribes and Other Backward Classes ((under Article 16(4)) may be calledvertical reservations whereas reservations in favour of physically handicapped(under Cl.(1) of Art.16) can be referred to as horizontal reservations. Horizontalreservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Cl.(1) of Art.16. The persons selected against the quota will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category; he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentageor reservations in favour of backward class of citizens remains - and should remain - the same:"

The difference between the nature of vertical reservation and horizontal reservation.

Social reservations in favour of SC, ST and OBC under Art.16(4) are 'vertical reservations.' Special reservations in favour of physically handicapped, women etc., under Art.16(1) or 15(3) are 'horizontal reservations.'

Principle

Where a vertical reservation is made in favour of a backward classunder Art.16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. [Vide Indira Sawhney (supra); R. K. Sabharwal Vs. State of Punjab (1995(2) SCC 745); Union of India Vs.Virpal Singh Chauvan (1995(6)SCC 684) and Ritesh R. Sah Vs. Dr. Y. L. Yamul (1996(3) SCC 253) ]

Exception to the principle

But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women.' If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.

Example:

If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC

candidates shall have to be first listed in accordance with merit, from out of the

successful eligible candidates. If such list of 19 candidates contains four SC women

candidates, then there is no need to disturb the list by including any further SC women

candidate. O n the other hand, if the list of 19 SC candidates contains only two

women candidates, then the next two SC woman candidates in accordance with merit,

will have to be included in the list and corresponding number of candidates from the

bottom of such list shall have to be deleted, so as to ensure that the final 19 selected

SC candidates contain four women SC candidates. (But if the list of 19 SC candidates

contains more than four women candidates, selected on own merit, all of them will

continue in the list and there is no question of deleting the excess women candidate on

the ground that 'SC women' have been selected in excess of the prescribed internal

quota of four).

[1] Supreme Court of India

Anil Kumar Gupta, Etc vs State Of Uttar Pradesh And Ors on 28 July, 1995

Equivalent citations: 1995 SCC (5) 173, JT 1995 (5) 505

PETITIONER: ANIL KUMAR GUPTA, ETC. Vs. RESPONDENT: STATE OF UTTAR PRADESH AND ORS.

[2] 2007 ALL SCR 2425

Caste Claim - Protection in service / Education

Headings: Caste Claim, Caste Scrutiny Committee, Protection, Protection in Service

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(1) NITIN S/O. BHIMRAO PATIL VS. THE DIVISIONAL CASTE CERTIFICATE SCRUTINY COMMITTEE & ANR.
      2014-ALL MR-6-693

Constitution of India, Art.226 - Protection in service - Ground of promissory estoppel - Petitioner is employee of university - As per communication issued by university to petitioner, his employment was subject to validity of his caste claim - While, on an earlier occasion university made a representation that petitioner shall be continued in service if he withdraws his complaint (ULP) - Petitioner also acted in accordance with said representation - Thus, university cannot be permitted to act contrary to representation earlier made by it - Petitioner deserves protection in service on ground of promissory estoppel.
AIR 1986 SC 806, AIR 1968 SC 718 Ref. to.         (Para 9)

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(2) RAKESH SUKANUJI DAFADE VS. STATE OF MAHARASHTRA & ANR.
      2014-ALL MR-7-53

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), S.6 - Invalidation of caste claim by Scrutiny Committee - Effect - Absence of fraud or misrepresentation - Petitioners ready to accept their caste as declared by Scrutiny Committee and give up their rights based on caste claimed - Court must protect the service of the petitioners/employees/students who are in service for so many years and/or completed the education, based upon previous invalidated caste certificates.
a)     The Petitioners/candidates/employees are entitled for protection in service with continuity of service.
b)     The Petitioners would not be entitled to any caste benefits on the basis of earlier caste/tribe which they had claimed. However, the Petitioners/candidates are entitled for the benefits, if any, based upon the concluded/existing caste/ tribe in question (Koli SBC) (Koshti SBC).
c)     The benefits, if any, granted after 28.11.2000 being belonging to "Mahadeo Koli", "Halba" (ST), the Respondents/employer/management are at liberty to withdraw the same.                                 (Paras 34, 39)

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(3) PRADIP GAJANAN KOLI VS. STATE OF MAHARASHTRA & ORS.
      2014-ALL MR-1-753

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), S.10 - Protection of employment - Invalidation of caste claim - Case law summarized.
    The summary of conclusions is as under:-
(i)     When a person secures an appointment on a reserved post after 2nd September 1994, as a consequence of invalidation of his caste claim by the Caste Scrutiny Committee, direction 15 in the case of Madhuri Patil will have to be implemented;
(ii)     In case of appointments made to reserved posts after coming into force of the said Act, on the invalidation of the caste claim/cancellation of the caste certificates by the Caste Scrutiny Committee, the consequences provided in Section 10 of the said Act shall follow;
(iii)     Notwithstanding the decision in the case of Madhuri Patil and Section 10 of the said Act, the protection to employment can be granted only to those who are governed by the law laid down by the Apex Court in the case of Kavita Solunke as held in Paragraph 27 above. The decision in the case of Kavita Solunke is confined only to those who were claiming to be Halbas and will not apply to the persons who claimed benefit of reservation on the basis of any other caste and whose claim has been negatived even if their appointments had become final on or before 28th November 2000. All the conditions in Kavita Solunke, as enumerated in Paragraph 27, must be met for any protection to be afforded to the person's employment.
(iv)     The Government Resolution dated 15th June 1995 holds the field only in relation to employee appointed before the cutoff date mentioned therein and to whom the same is otherwise applicable.
(v)     The protection which can be extended to the employees in terms of Clauses (iii) and (iv) above shall be only in relation to the post to which the initial appointment is made.                             (Para 35)

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(4) BILKIS SHEIKH IBRAHIM VS. THE SCHEDULED TRIBE CASTE CERTIFICATE SCRUTINY COMMITTEE & ORS.
      2013-ALL MR-7-261

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), S.3 - Constitution of India, Art.16 - Caste claim - Protection of service pending scrutiny - Petitioner was appointed on post of assistant teacher in respondent Education Society - Appointment was based on certificate of belonging to Bhena Scheduled Tribe - On a complaint having been lodged, Scrutiny Committee asked petitioner to appear before it - Education Society asked petitioner to get order of court to protect service, in view of relevant Government Circular - Education Society also decided to protect service and passed necessary resolutions in its Managing Committee - Held, Education Society has taken proper decision to protect service in view of Kavita Solunke's case - Such approach will curtail further litigation - Petitioner directed to cooperate in verification of caste claim.
2012 ALL SCR 2393 Rel. on.     (Paras 4, 6)

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(5) KU. VIJAYA DEORAO NANDANWAR VS. CHIEF OFFICER, MUNICIPAL COUNCIL, WARDHA
      2013-ALL MR-5-849

(A) Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), S.10 - Constitution of India, Arts.14, 226, 227, 144 - Caste claim - Termination of service on invalidation of caste certificate after 15 years of service - Protection granted to those who obtained certificate at relevant time as per Supreme Court judgments - Protection granted to similarly situated persons - Plea of delay, constructive res judicata, estoppels - These doctrines have foundation of procedural law - Constitutional and fundamental rights under Art.14 cannot be deterred by procedural law.
    Union of India and State of Maharashtra extended benefit of Halba Koshti/Koshti and similarly situated persons by various Circulars. Submission that those Circulars are contrary to provisions of law and cannot be foundation to grant protection referring to Division Bench judgment in Rajendara vs. State (2013(3) Mh.L.J. 393) and Archana dadarao Pethkar's case (2013(4) ALL MR 807) is unacceptable. Contesting respondents Union of India, State of Maharashtra and concerned respondents just cannot overlook binding judgments/directions issued by Supreme Court from time to time by reinforcing that protection so enlarged/granted by Constitution Bench, needs to be extended to all similarly placed persons, specifically in view of their own Circulars. They are stopped from challenging or opposing protecting relief. All are bound by 'law of precedent', doctrine of 'judicial discipline' and above all basic principles of treating 'equals equally' flowing from Art.14.
    While exercising jurisdiction under Art.226, it is prime duty of Court to protect constitutional rights and to see that everyone has been treated equally. Argument that judgment passed in writ petition and review petition refusing protection of service to petitioner are based on principles of 'res judicata'. Law concerning 'res judicata' is based on public policy and procedural law and it cannot deter Court from protecting constitutional and fundamental rights of petitioner. When fundamental rights are to be protected, then procedural laws cannot deter this Court from denying relief and this Court cannot turn its eyes on ground that continuation of violation of fundamental rights and constitutional rights cannot be looked into in view of procedural impediments.
    Power of Art.142 vests with Supreme Court. Power of Article 226 of Constitution of India vests with High Court. These powers are wide enough to cover various aspects including to exercise discretionary powers in interest of justice. Both powers are equally important and independent. There is no question of any restriction. Power of Supreme Court and High Court of judicial review is to issue such directions against any person including any authority or any Government to enforce legal and fundamental rights and for 'any other purpose' to do complete justice.
2012 ALL SCR 2393, 1987 Mh.L.J. 572, 2013 (3) Mh.L.J. 393, 2013(4) ALL MR 807, 2009(2) ALL MR 152 Ref. to.                            (Paras 27, 28, 32, 33, 51, 52, 53)
(B) Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.3, 4, 6 - Constitution of India, Art.14 - Caste certificate - Requirement of - Termination of service on invalidation of caste certificate after many years of service - Protection granted to those who obtained certificate at relevant time - Protection granted to similarly situated persons - Contention that no certificate is necessary once protection is granted, liable to be rejected.
    Order of protection/reinstatement are on foundation of certificate on date when employee /student got benefits and that has been continued by Supreme Court orders. Government Circulars from time to time, on contrary though granted /extended protection to Halba-Koshti, nowhere dispenses with requirement of certificate but insisted for such certificate even to whom Court has granted protection/reinstatement.
1987 Mh.L.J. 572 Ref. to.         (Para 36)
(C) Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.3, 4, 6 - Constitution of India, Art.14 - Caste certificate - Requirement of - Termination of service on invalidation of caste certificate after many years of service - Protection granted to those who obtained certificate at relevant time - Protection granted to similarly situated persons - Such person is not entitled to any benefit of reservation in future - However that cannot be reason to treat them in open category - Contention that caste certificate is not necessary is liable to be rejected.
1987 Mh.L.J. 572 Ref. to.     (Paras 37, 38)
(D) Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.3, 4, 6 - Constitution of India, Art.14 - Caste claim - Termination of service on invalidation of caste certificate after many years of service - Such person is not entitled to any benefit of reservation in future - However it does not mean that family members of such person have also given up caste claim.
2012 ALL SCR 2393, 1987 Mh.L.J. 572.             (Para 39)
(E) Maharashtra Scheduled Caste, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.3, 4, 6 - Constitution of India, Art.14 - Caste claim - Termination of service on invalidation of caste certificate after many years of service - Employees claiming other benefits need to be treated on different footing - Court to pass appropriate order in matters of reinstatement, back wages.
2012 ALL SCR 2393, 1987 Mh.L.J. 572 Ref. to.     (Para 48)

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(6) KU. ARCHANA DADARAO PETHKAR VS. JOINT COMMISSIONER AND VICE CHAIRMAN, SCHEDULED TRIBE CERTIFICATE SCRUTINY COMMITTEE & ANR.
      2013-ALL MR-4-807

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.10, 6 - Invalidation of Caste Claim as belonging to Halba Schedual Tribe - Petitioner gave up caste claim and claimed only protection in employment - In view of mandate of S.10 protection in employment declined.             (Paras 12, 13)

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(7) RAJENDRA S/O. RAMAJI MAHISBADWE VS. THE JOINT COMMISSIONER AND VICE CHAIRMAN, SCHEDULED TRIBE CASTE CERTIFICATE SCRUTINY COMMITTEE & ANR.
      2013-ALL MR-4-114

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), S.10 - Invalidation of caste claim - Order of termination of service - Protection of employment cannot be extended over by the Central Government.
2009(2) ALL MR 152, 2010(5) ALL MR 341 Rel. on.     (Paras 12, 13, 23)

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(8) JAGAN GANPATRAO TAKLIKAR VS. UNION OF INDIA & ORS.
      2013-ALL MR-1-382

Constitution of India, Arts.226, 227, 311 - Termination - Petitioner appointed on basis of his claim of belonging to 'Halba' in 1972 - Caste claim was invalidated in year 2000 - Petitioner terminated from service on ground of suppression of material fact regarding caste - In Kavita Solunke's case Apex Court has taken view that all appointments made prior to 28-11-2000 are entitled to be protected - Petitioner's appointment is prior to 28-11-2000 - Ground of rejection of caste claim is that pre independence documents show either caste claim Kosti or Halba Kosti - Petitioner is entitled to protection of service.
2012 ALL SCR 2393 Rel. on.
2001(1) ALL MR 573 (S.C.) Ref. to.             (Para 7)

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(9) A. P. RAMTEKKAR & ORS. VS. THE UNION OF INDIA & ORS.
      2013-ALL MR-7-376

(A) Constitution of India, Art.226 - Writ jurisdiction - Interference with show cause notice - Non-exercise of jurisdiction is a rule of self-restraint - If the Court finds that show cause notice is vitiated, it would not be precluded from exercising its jurisdiction under Art.226.     (Para 9)
(B) Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), S.6 - Constitution of India, Art.16 - Protection of service - Persons belonging to "Halba koshti" who are already appointed on basis of their belonging to scheduled tribe, are entitled to protection of service in view of Kavita Solunke's case - Whereas persons of other scheduled tribes are entitled to protection of service in view of Dattu Namdeo Thakur's case.
2012 ALL SCR 2393, 2012(5) ALL MR 954 (S.C.) Rel. on.     (Paras 12, 13)
(C) Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), S.6 - Constitution of India, Arts.16, 226 - Protection of service - Appointment of petitioners 25 years back on basis of their belonging to "Halba Koshti"or other scheduled tribes - Claim also validated by District Magistrate at relevant time - Show cause notices for termination issued to them for non-production of documents to Scrutiny Committee under Act of 2000 - Not a case of fraud on part of petitioners - Petitioners already gave up their claim as belonging to scheduled tribe - Scrutiny would be an empty formality - Petitioners entitled to protection of service - However any other benefit granted to them after 28.11.2000 on basis of caste claim, open to be withdrawn.    (Paras 14, 16)
(D) Constitution of India, Art.226 - Writ petition - Service matter - Petition on behalf of Association, not maintainable when an employee is in a position to agitate his own claim.     (Para 16)

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(10) APURVA ASHOK GOKHALE VS. STATE OF MAHARASHTRA & ORS.
      2013-ALL MR-1-114

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.10(1), 10(3) - Caste claim - Cancellation of - Degree or diploma obtained on the basis of false caste certificate - Provision specifically states that despite conferment of a degree or diploma, upon subsequent invalidation of caste claim based on false caste certificate, benefit accrued to student shall stand withdrawn - No protection to be granted.
2008(2) ALL MR 13 Foll.     (Para 8)

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(11) PRABHAKAR S/O. RUSHI NANDANWAR VS. JOINT COMMISSIONER & VICE-CHAIRMAN, SCHEDULED TRIBE CERTIFICATE, CASTE SECURITY COMMITEE & ORS.
      2013-ALL MR-4-814

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act (2000), S.6 - Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Caste Certificate Rules (2003), R.11 - Invalidation of caste claim - Petition for protection of services - Held, appointments even of Halba Koshties which had become final are entitled to be protected unless it is found that claim is fraudulent or fabricated - However such a consideration cannot be made applicable to promotions.
2001(1) ALL MR 573 (S.C.), 2012 ALL SCR 2393 Rel. on.     (Paras 11 to 13)

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(12) TARACHAND S/O. FUKIRCHAND NINAVE VS. JOINT COMMISSIONER & VICE CHAIRMAN, SCHEDULED TRIBE CASTE CERTIFICATE SCRUTINY COMMITTEE & ORS.
      2013-ALL MR-2-549

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), S.3 - Protection of employees appointed as belonging to ST under Govt. of India Memo dt.10.8.10 - Employee belonging to Halba tribe appointed before 28.11.2000 - Is entitled to protection on invalidation of his caste claim - Employee or his progeny, however, shall not be entitled to any benefit on basis of belonging to ST after 28.11.2000.    (Para 6)

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(13) KAVITA SOLUNKE VS. STATE OF MAHARASHTRA & ORS.
      2012-ALL SCR-2393

Constitution of India, Art.335 - Caste claim - Appellant appointed as Teacher on post reserved for Scheduled Tribe and Scheduled Caste candidate - Appellant claiming to be "Halba" applied for the post - No reasons to hold that appellant had fabricated or falsified particulars of being a Scheduled Tribe candidate - Her certificate, however, was cancelled by Scrutiny Committee ten years after its issue on ground that her father was "Koshti" by caste which was not a scheduled tribe in Maharashtra - Held, appellant was entitled to benefit of protection against ouster subject to condition that she would not be entitled to any further benefit on the basis of her cancelled certificate.
2001(1) ALL MR 573 (S.C.) Rel. on.     (Para 16)

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(14) SHRI MANGESH NIVRUTTI KASHID VS. THE DISTRICT COLLECTOR, SATARA & ORS.
      2012-ALL MR-5-759

(A) Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificates Act (2000), Ss.2(k), 6(1) - Caste Scrutiny Committee - Composition - Provisions of the 2000 Act and the Rules made thereunder, silent on the point of composition - Held, composition as laid down by Apex Court in Madhuri Patil's case will continue to govern the field.
1997 (5) SCC 437 Ref. to.    (Para 25)
(B) Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificates Act (2000), S.6(1) - Maharashtra State Government Notification, Dt.30-7-2011 - Special Scrutiny Committee - Under Chairmanship of Collector/Addl. Collector - Not in consonance with directions of Apex Court in Madhuri Patil's case wherein Chairmanship was specifically provided to be given to Addl. Commissioner (Revenue) - Decision of Apex Court on Chairmanship had specific reasons - Deviation therefrom, not permissible.
    The Apex Court in Madhuri Patil-II [1997 (5) SCC 437] in its directions, specifically laid down that the Additional Commissioner (Revenue) alone shall be the Chairman of the Committee. The phrase "or equivalent" is conspicuously missing from the said direction. If the State of Maharashtra wanted to substitute the word "Collector/Additional Collector" in place of the "Additional Commissioner (Revenue)", the State was obliged to move the Apex Court for clarification. The State has neither moved for clarification of the aforesaid directions nor has brought in the legislative enactment to that effect. The Apex Court has categorically mentioned a particular post for specific reason. If any deviation is to be permitted, it would, completely dilute the rigor of the requirement predicated by the Apex Court, which is presently the law within the meaning of Article 141 of the Constitution of India. Such deviation and further deviation without the backing of law made by the legislature cannot be countenanced.                            (Paras 26, 27)
    Further, reading of the provisions of Ss.6, 7(2) and 11 (2) of land Revenue Code also show that the appointment of the District Collector is not the same as appointment of the Additional Commissioner (Revenue) for the purpose of the scheme laid down in the case of Madhuri Patil. Thus is no manner of doubt in our mind that the constitution of the special committees as far as the post of chairman is concerned, is not in consonance with the directions given in the case of Madhuri Patil (II).
1997 (5) SCC 437, 2011(6) Mh.L.J. 414, 2004(3) Mh. L.J. 49 Ref. to.   (Paras 28, 29)
(C) Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificates Act (2000), S.6 - Maharashtra State Govt. Notification, Dt.30-7-2011 - Validity - Special Scrutiny Committee - Govt. of Maharashtra through its notification provided for constitution of 35 local Scrutiny Committees - Said committees were of temporary nature and constituted specifically to deal with applications of candidates in ensuing elections of local self-Govt. - Norms stipulated by Apex Court in Madhuri Patil's case, not adhered to - Neither any law was made nor Apex Court was approached for clarification on the matter - Notification is a nullity having no force of law - Caste validity certificate issued by the committee so constituted would be void ab initio.
1997 (5) SCC 437 Ref. to.     (Paras 32, 33)
(D) Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificates Act (2000), S.4 - Maharashtra Scheduled Tribes (Issuance and Verification of) Caste Certificate rules (2003), R.12 - Caste validity certificate - Requirement of Vigilence Cell Reports - Mandatory - Vigilence Cell Report is mandatory even when the claim of applicant is based on validity certificate already granted to his near relatives - Argument that same will cause delay, not acceptable.
    The Apex Court in Madhuri Patil's case emphasized that in the peculiar social situations prevailing in this Country, large scale bogus claims based on the fabricated documents were coming to the light, and it will be necessary to conduct the comprehensive inquiry before granting the validity certificates. If one validity certificate is granted, it is used by the near relatives to stake their claims, leading to a cascading effect. Thus one wrong validity certificate has potential of inflicting mass scale deprivation of the rights of backward classes. If one wrong validity certificate has such potential to cause damage, it cannot be but emphasized that any validity certificate must be issued with a comprehensive inquiry. Therefore, the argument that calling for the Vigilance Cell report will result in delay, cannot be accepted.
    Thus even if the State Government enacts a procedure (Rule-12 in the instant case) to replace the directions contained in Madhuri Patil's case, the procedure cannot dispense with the core requirement of obtaining vigilance cell report. If such a procedure is enacted by the State, it cannot be termed as 'proper' procedure as contemplated by the Act. the directions issued in the Madhuri Patil's case cannot be viewed with pedantic approach and must be understood and employed in its true sense and spirit. The said directions are issued for the protection of the weaker section in the country and they must be employed strictly.
    Rule 12 of the Rules of 2003 which deal with the requirement of calling for the vigilance cell report, does not state that it is only in those cases where the scrutiny committee is not satisfied with the documents, it will call for the report from the vigilance cell. Once the Apex Court has laid down that the vigilance cell report is core of the caste verification process, this mandatory requirement cannot be left to the whims and fancies of the members of the scrutiny committees. Rule 12 will have to be interpreted keeping in mind the judgments of the Apex Court in Madhuri Patil's case and Dayaram's case. The argument of the State that whenever the validity certificate is issued to the near relative, there is no need to call for the vigilance cell report, cannot be accepted. Each case will have to be decided on its own merits and merely because one relative is granted validity certificate, the certificates to others may not automatically follow.
    The State does not have discretion to grant a validity certificate without following proper scrutiny and verification. The State cannot propogate shortcut methods for verification of caste claims. The verification of validity certificates must be undertaken with seriousness and rigors of scrutiny cannot be diluted on the ground of administrative inconvenience.
    The argument that the committees are over burdened and calling for the vigilance cell reports would prolong the procedure cannot be a ground for adopting a summary method. Section 6 of the Act of 2000 enables the State to set up as many scrutiny committees as required. Thus the State can always counter the additional workload by creating adequate infrastructure.
1997 (5) SCC 437, 2011 (6) Mh. L.J.414 Ref. to.         (Paras 38, 39, 43, 44, 46, 48, 50)
(E) Maharashtra Scheduled Tribes (Issuance and Verification of) Caste Certificate Rules (2003), R.12 - Verification by Vigilence cell - Term 'verify' implies inquisitional enquiry and conscious application of mind - It does not denote mere examination of documents or evidence - Each and every claim must be verified in its entirety.
    The term "verify" implies an inquisitional enquiry and conscious application of mind. It has to be a deliberate process to arrive at truth of the matter. It does not denote mere examination of the documents or the evidence. To 'verify' means not merely to be satisfied with the face value of the evidence so produced, but to satisfy itself about the truthfulness of the claim founded on it. Thus, what the scrutiny committee and the vigilance officer is supposed to do is not merely to 'examine' the claim but to 'verify' the same. The approach must be to arrive at the truth of the claim. The constitution of the scrutiny committees and the Vigilance Cell to assist the scrutiny committees and the procedure laid down is for the sole purpose of arriving at the truth and genuineness of the claim. For example, if the school leaving certificate is produced before the committee in support of the claim, mere examination of the school leaving certificate will show the certificate to be in order. But if the certificate is to be verified then the process will involve checking of the original register based on which the certificate was issued. If the school register is merely examined as it is, it may be found to be in order. But if the school register is verified with an object of checking its genuineness, it may reveal that some part of the entry has been written in different ink. The headmaster of the school can be then examined by the vigilance officer, who may give his version about the manipulations. The same logic ought to apply even in cases where the scrutiny committee has already granted validity certificate in favour of the close blood relative of the applicants, with or without obtaining Vigilance Cell report. The above example is given to draw the attention to the difference between the word "examined" and "verified", and the deliberate use of the word "verify" by the legislation. Each and every claim must be verified in its entirety and that is the legislative mandate as well as the mandate in the case of Madhuri Patil [1997 (5) SCC 437].                           (Para 40)

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(15) SHANKARRAO RANGRAO PATKAR VS. STATE OF MAHARASHTRA & ORS.
      2010-ALL MR-3-269

(A)   Constitution of   India , Art.142 - Judicial precedents - Binding nature - Theory of - Discussed.
   The doctrine of judicial precedents enunciate rules of law which forms the foundation of our system of administration of justice. Before applying the decision of the   Apex Court   to the case in hand, the Court should ascertain with reference to the question of law decided by the   Apex Court , ratio and principle upon which the question was decided by the   Apex Court   in that case since the same alone is binding precedent. The decision of the Court upon a question of law is considered to be a binding precedent and this must be ascertained and determined by analysing all the material facts and issues involved in the case. The scope and authority of the precedent should never be expanded unnecessarily beyond the need of the given situation. The ratio decidendi of the judgment can be found out only on reading the entire judgment and not by reading the mere few observations made in some of the paragraphs of the judgment, unless it is ascertained in what context those observations are made.
   A Judgment of the Apex Court operates as precedent only for what it decides, known as “ratio decidendi” and not for its general or casual observation. What is the essence in a decision is its ratio and not every observation found therein. What is binding under Article 141 is only the law declared by the Supreme Court with reference to the questions decided by the Apex Court, based on the principle involved in that case. Hence, before applying decision of the Apex Court, all these factors must be ascertained and it is thereafter the decision of the Apex Court should be applied to the facts of the case in hand. (Paras 13, 14)
(B)   Constitution of India, Arts.141, 142 - Judicial precedent - Declaration of law by Full Bench - Is completely binding on smaller Benches - In event of disagreement by smaller benches appropriate course would be to make reference to the Chief Justice after recording reasons.
   The judicial decorum and legal propriety demand that where a Single Bench or Division Bench does not agree with the decision of the Bench of coordinate jurisdiction, the matter shall be referred to the larger Bench. It is a subversion of judicial process not to follow this precedent. The doctrine of binding precedent has an import of permitting certainty and consistency in judicial decisions and enabling an organic development of laws besides providing assurance to the individual as to consequences of transactions forming part of his daily affairs and, therefore, there is a need for a clear and consistent enunciation of legal principles in the decisions of High Court. (Paras 15, 16)
(C)   Constitution of India, Arts.16, 226, 14, Govt. Resolutions dt.15-6-1995 - Grant of protection in service - Senior Clerk (Accountant) appointed in Scheduled Tribe Category - His caste claim invalidated by Caste Scrutiny Committee - Cannot seek protection of service under Govt. Resolution dt.15-6-1995 which is held violative of Art.14 and Art.16 in 2009(2) ALL MR 867,   2009(2) ALL MR 867 - Foll.   (Paras 18, 20)
(D)   Constitution of India, Arts.141, 142 - Judicial Precedents - Law laid down by Apex Court in 2000(1) Mh.L.J. 1 - Was not general preposition of law - Protection granted to petitioner even after invalidation of his caste claim by competent authority was in view of peculiar facts and circumstances of case - Therefore by necessary implication power exercised by Apex Court was under Art.142 and was not law declared under Art.141 of Constitution - Observations made therein could not be made applicable on other cases.   (Paras 7, 8)

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(16) KU. SHALINI GAJANANRAO DALAL VS. NEW ENGLISH HIGH SCHOOL ASSOCIATION THROUGH ITS SECRETARY & ORS.
      2010-ALL MR-Supp-263

Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (1977), Ss.5(2), 9 - Caste claim - Appointment of teacher on basis of his caste claim - Employee/Teacher is not entitled to protection of his employment after his caste claim on the basis of which he was appointed was found to be invalid. 2009(2) ALL MR 867 & 2009(5) ALL MR 828 (F.B.) - Ref. to.         (Para 5)

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(17) TEJRAM NETRAM BANNAGARE VS. STATE OF MAHARASHTRA & ORS.
      2009-ALL MR-6-314

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.6, 9 - Government Resolution dt.15-6-1995 - Protection of employment - Caste claim - Petitioner procuring caste certificate as belonging to Pawara Scheduled Tribe, though in school admission register, his case was mentioned as Bhoyar - Petitioner not giving those details to Scrutiny Committee and tried to mislead it in the matter - Petitioner, thereafter, not participating in enquiry before Scrutiny Committee - Held, all these facts clearly show guilty mind of petitioner - The petitioner, therefore, not entitled to any protection under the Government Resolution. 2008(3) ALL MR 441 (S.C.) : 2008(2) Mh.L.J. 720 (S.C.) : 2008(4) SCC 612 : AIR 2008 SC 1678 - Rel. on. (Para 14)

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(18) VANDANA BHARAT KAUTHALIKAR VS. STATE OF MAHARASHTRA & ORS.
      2009-ALL MR-5-828

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.6, 9 - Government Resolution Dt.:-15-6-1985 - Caste claim - Protection of employment under Government Resolution - Grant of protection by High Court - As the powers under Art.142 are not available to High Court, no protection can be granted by High Court under the Resolution. 2009(2) ALL MR 152 (F.B.) - Rel. on. (Paras 5, 6)

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(19) KU. SONALI D/O. KRISHNA MOHADIKAR VS. STATE OF MAHARASHTRA & ORS.
      2007-ALL MR-4-712

Constitution of India, Arts.226, 14 - Caste claim - Fraud committed on Constitution - What extent a person should be allowed to derive benefit out of fraud committed on Constitution - Held, merely because some time has elapsed and one has completed a degree or is in employment since long time does not justify the unjust enrichment which that person derives, to which he is not entitled in law - There should be imposition of costs on such persons and if somebody has availed benefit of a SC/ST seat etc. and gained education at concessional rates, should pay back the amount to Government Exchequer and in subsequent year one post/vacancy should be added from that money, and this preference should apply to exceptional case of protection in a rarest of rare case.
    In this case, the appellant joined the Regional Engineering College in the year 1992. He completed the course of his studies in the year 1996 under the interim orders of High Court which were subject to the final orders to be passed in the Writ Petition. Again in this case, it was held that no purpose would be served in withholding the declaration of the result on the basis of the examination already taken by him or depriving him of the degree in the case he passes the examination. Orders were issued to declare the result of the petitioner with the condition that he will not be treated as a Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing from the caste certificate obtained by him. Caste certificate was cancelled and he was ordered to be treated as a general category candidate for all purposes.
    The question which falls for consideration is that to what extent a person should be allowed to derive benefit out of the fraud committed on the Constitution. Whether it would not amount to unjust enrichment. Whether it would not give a precedent to the people, in this era of unemployment and scarcity of resources to tamper ones caste certificate and try a chance to have education on the place of a bonafide SC/ST candidate?
    Merely because some time has elapsed and one has completed a degree or is in employment since long time does not justify the unjust enrichment which that person derives, to which he is not entitled in law. There should be imposition of costs on such persons and if somebody has availed benefit of a SC/ST seat etc. and gained education at concessional rates, should pay back the amount to the Govt. Exchequer, and in the subsequent year one post/vacancy should be added from that money, and this preference should apply to exceptional case of protection in a rare in rarest case.
    Law is not averse to compassion, however, what shall be the dead line of law to help a wrong doer being impressed by compassion. On this issue of knot, Court finds that compassion ought not override the constitutional goals and objectives. Compassion in solitary cases ought not be precedent. In this background to this Court this is an opportune time to say 'No' to fall prey to the argument of compassion, and Court says so in this case, and accepts to say "enough is enough" and no more.
    Rule of compassion cannot be lost, however, it shall be an exception of rarest of rare case, and not a counterfeit coin dominating genuine currency of genuine one.
    When admission is cancelled, the loss of one year can be carried forward in the next year instead of allowing it to get extinguished. 2004 Lab.I.C. 556, 2003(2) ALL MR 62 and (2006)7 SCC 501 - Ref. to.
(Paras 17,18,21to24)

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(20) STATE OF MAHARASHTRA & ORS. VS. SANJAY K. NIMJE
      2007-ALL MR (S.C.)-2-911

Constitution of India, Art.342 - Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.6, 7, 10 - Caste Claim - Caste Scrutiny Committee found respondent as belonging to "Koshti" caste falling within category of 'special backward class' and not within scheduled tribe category - Caste certificate invalidated by order dt.24-6-04 - Respondent was selected for post on 15-6-1995 and was appointed on 29-6-1995 - Hence he was not entitled to protection under the Govt. Resolution dt.15-6-1995 and the Act of 2000 would apply and as respondent was not a member of a tribe, leave alone a scheduled tribe, was not entitled to be protected. (Paras 17,19,23)

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(21) STATE OF MAHARASHTRA & ORS. VS. SANJAY K. NIMJE
      2007-ALL SCR-540

Constitution of India, Art.342 - Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.6, 7, 10 - Caste Claim - Caste Scrutiny Committee found respondent as belonging to "Koshti" caste falling within category of 'special backward class' and not within scheduled tribe category - Caste certificate invalidated by order dt.24-6-04 - Respondent was selected for post on 15-6-1995 and was appointed on 29-6-1995 - Hence he was not entitled to protection under the Govt. Resolution dt.15-6-1995 and the Act of 2000 would apply and as respondent was not a member of a tribe, leave alone a scheduled tribe, was not entitled to be protected.      (Paras [ 17 , 19 , 23 ])

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(22) NUTAN VIDARBHA SHIKSHAN MANDAL VS. THE PRESIDING OFFICER, SCHOOL TRIBUNAL, AMRAVATI & ORS.
      2007-ALL MR-2-60

(A) Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act (2000), Ss.7, 10 - Constitution of India, Art.14 to 16 - Caste Certificate - Word "false" which precedes the expression "caste/tribe certificate" - Word has been used in broad sense - Term "false caste certificate" relates to that certificate which does not reveal true and real caste of the claimant.
    The word "false" which precedes the expression "caste/tribe certificate" has been used in broad sense. If it was confined to `fraud', then there would have been no occasion for the legislature to qualify the said expression by the terms like "fraudulently obtained", "intentionally issued", "by furnishing false information", "by any other fraudulent means", "proved to be false", etc. In other words, whenever the legislature expects the element of fraud to invite the consequences enumerated under the statutory provisions in case of false certificate, it has specifically qualified the said expression with the words quoted above. This clearly discloses the term "false caste certificate" relates to that certificate which does not reveal true and real caste of the claimant. If it was to refer to a certificate obtained by playing fraud or necessarily with an intention to cause loss to somebody, then there would have been no occasion to the legislature to make separate provision in cases of false certificate being obtained fraudulently.
    It is to be borne in mind that the provisions for reservation of seats or benefits in educational institutions for reserved category are being made in pursuance of the constitutional mandate in that regard. The Constitution endeavours for social and economic upliftment of the down trodden population of this country and social equality of status and dignity of person, by providing reservation in services of the State and in education by operation of Articles 15, 16 read with 14 of the Constitution of India. (1997)2 SCC 571 - Rel.on. (Para 23)
(B) Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act (2000), Ss.7, 10 - Caste Certificate - Fraud - Gravity of offence would increase with finding about the caste certificate having been obtained fraudulently - Caste being within the knowledge of the claimant, by no stretch of imagination, it can be said that his claim can be false by mere mistake or by accident.
    The gravity of offence would increase with the finding about the caste certificate having been obtained fraudulently. Nonetheless, when the caste claim on the basis of the certificate produced by the claimant is not established to be true in the verification proceedings, and therefore, the certificate is declared to be invalid and cancelled, it would eventually follow that the caste certificate does not disclose true and real caste of the claimant, and therefore, it is a false certificate. No doubt, an act or a statement can be a false by intent or by accident or by mistake. But it cannot be said that the claim of caste can be made by an accident or by mistake because the certificate is to be obtained on the basis of the representation made by the claimant to the concerned authority, supported by the materials prima facie disclosing the claim relating to the caste/tribe being genuine. Being so, it is entirely for the claimant to make a genuine and true claim and produce cogent materials regarding his caste. The caste being within the knowledge of the claimant, by no stretch of imagination, it can be said that his claim can be false by mere mistake or by accident. It is pertinent to note that the caste certificate is essentially obtained to avail certain benefits in life of an individual, either may be for educational purpose or for employment, or for other benefits like contesting election. In any case, it is essentially to avail some benefits by or for the claimant. Besides, it is also to be noted that the Section 8 of the said Act specifically provides that when an application for obtaining the caste certificate is made by the claimant, as well as in the inquiry by the scrutiny committee or competent authority about the verification or any trial, the burden to prove that a person belongs to the caste claimed or disclosed in the caste certificate is always upon the claimant. This obviously discloses that unless the claimant is able to establish his caste claim which he had made for obtaining the caste certificate, the inevitable conclusion which will have to be drawn, is that he had either obtained a false caste certificate or there was a fraud played in obtaining such certificate. Such an act cannot be by way of mere accident, nor it can be unintentional. The caste certificate is essentially obtained with an intention of availing the benefits. Being so, it is absolutely necessary for the claimant to ensure that he makes a truthful claim, otherwise it is nothing but a deceit which should warrant consequences as contemplated under the statutory provisions. 2003(2) ALL MR 409, 2005(3) ALL MR 548 - Ref. to. (Para 29)
(C) Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act (2000), S.10 - GRs. dated 15/6/1995, 27/5/2002 and 30/6/2004 - Granting protection to employees contrary to provision of Act - Are invalid.    (Paras 46,48)

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(23) L.I.C. OF INDIA VS. SUSHIL
      2006-ALL MR (S.C.)-2-34

Constitution of India, Arts.341, 342 - Caste claim - Invalidated by Scrutiny Committee - Petitioner willing to file undertaking that he will not claim any benefit on basis of his caste either in his service or anywhere else at any time for himself or for his legal heirs - Protection given on a similar undertaking by Apex Court in Milind's case 2001(1) ALL MR 573 (S.C.) was in the peculiar facts of that case - Present petitioner cannot claim similar protection by relying on Milind's case as binding precedent.    (Paras 6,9)

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(24) BANK OF INDIA & ANR. VS. AVINASH D. MANDIVIKAR & ORS.
      2005-ALL MR (S.C.)-5-1023

Constitution of India, Art.341 - Caste claim - Respondent appointed in Bank under reserved Category of Scheduled Tribe in 1976 - His caste Certificate was referred to Scrutinee Committee in 1987 on his promotion to higher post - Scrutinee Committee invalidated caste certificate - His services were terminated in 2002 - Termination challenged by filing writ petition - High Court held that though proceedings were not initiated validly petitioner was not entitled to promotion as he did not belong to Scheduled Tribe and Bank was directed to reinstate him in the post he was appointed with continuity of service and back wages - Held mere delayed reference when foundation for the same was alleged fraud did not in any way affect legality of reference and viewed from any angle order of High Court was clearly untenable.
    Mere delayed reference when the foundation for the same is alleged fraud does not in any way affect legality of the reference. Looked from any angle the High Court's judgment holding that the respondent no.1-employee was to be reinstated in the same post as originally held is clearly untenable. The order of termination does not suffer from any infirmity and the High Court should not have interfered with it. By giving protection for even a limited period, the result would be that a person who has a legitimate claim shall be deprived of the benefits. On the other hand, a person who has obtained it by illegitimate means would continue to enjoy it notwithstanding the clear finding that he does not even have a shadow of right even to be considered for appointment.   (Paras 12,13)
    On one hand the High Court faulted the reference which was made after about ten years and on the other hand accepted the findings of the Scrutiny Committee that the respondent no.1 did not belong to Scheduled Tribe as was held by the Scrutiny Committee. Mere delay in making a reference does not invalidate the order of the Scrutiny Committee. If the High Court felt that the reference was impermissible because of long passage of time, then that would have made the reference vulnerable. By accepting the findings of the Scrutiny Committee that the respondent no.1-employee did not belong to Scheduled Tribe, the observations about the delayed reference lose significance. The matter can be looked into from another angle. When fraud is perpetrated the parameters of consideration will be different. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. (Para 11)

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(25) SURENDRA S/O. HANMANLOO GANDAM VS. STATE OF MAHARASHTRA & ORS.
      2006-ALL MR-1-347

(A) Constitution of India, Art.226 - Caste claim - Scrutiny Committee on basis of School leaving certificate coming to conclusion that petitioner belonged to Mannerwarlu, Scheduled Tribe - No fault can be found with order impugned because it is not the quantity of evidence which would be decided but the quality of evidence.        (Para 5)
(B) Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), S.10 - Applicability - Provisions are not retrospective in operation - Protection granted by Govt. Resolution dt.15-06-1995 is not withdrawn expressly or by necessary implication by the provisions of the Act - It continues to hold the field even after coming into force of the Act - Person can be denied benefit of G.R. if he has procured appointment on the basis of false Caste Certificate.    (Para 17)
(C) Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.7, 10 - False Caste Certificate - Does not cover bona fide cases where claimant fails to establish his caste claim.
    To hold that a person has obtained a 'false caste certificate' or a 'certificate fraudulently', there need to exist an element of mens rea or a guilty mind and only on the establishment of the existence of said element, that a person could be branded as one who has obtained false caste certificate. It is in this sense, that a person can be denied the benefit of Government Resolution dated 15-06-1995, if he has procured the appointment on the basis of false caste certificate. (Para 18)
(D) Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.7, 10, 11 - Adjudication of caste claim - Scrutiny Committee prima facie finding that claim is false on ground that certificate itself is forged or obtained fraudulently - Claimant will have to be put on notice in that regard and afforded opportunity of hearing. (Para 19)
(E) Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act (2000), Ss.2(1), 7, 10, 11, 15, 16 - Object of the Act - Government Resolutions dt.07-12-1994 and 15-06-1995 - Act and Government Resolutions operate in different spheres and there is no conflict whatsoever between the provisions of the Act and the Govt. Resolutions.    (Para 23)

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