Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5821 OF 2012

(Arising out of S.L.P. (C) No.33716 of 2009)

Kavita Solunke …Appellant

Versus

State of Maharashtra and Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1.Leave granted.

2.The High Court of Judicature at Bombay has while

dismissing Writ Petition No.1810 of 2008 filed by the

appellant herein refused to interfere with the order dated

20

th

February, 2008 passed by the Scheduled Tribe

Certificate Scrutiny Committee, Amravati. The Committee

1

Page 2 in turn had declared that the appellant was a ‘Koshti’ by

Caste and not a ‘Halba’ which is a notified Scheduled Tribe.

The facts giving rise to the present appeal lie in a narrow

compass and may be summarised as under:

Shri Shivaji High School, Dongaon, of which

respondent No.5 happens to be the Head Master, invited

applications in terms of advertisement dated 20

th

July, 1995

against three vacant posts of teachers in the said school.

One each of these two posts was reserved for Scheduled

Caste and Scheduled Tribe Candidates. The third post was

ostensibly in open category and required a minimum

qualification of B.P.Ed., which the appellant herein did not

possess. The appellant claiming to be a ‘Halba’ applied for

the solitary post reserved for the Scheduled Tribe

candidates and was appointed as a low grade co-teacher in

the pay scale of Rs.1200-2040 with effect from 1

st

August,

1995 or the date she joined the said post. The appointment

was on probation for an initial period of two years which

was duly approved by the Zila Parishad Education Officer in

terms of his order dated 12

th

July, 1996. It is not in dispute

2

Page 3 that the appellant satisfactorily completed the period of

probation and was confirmed in service as an Assistant

Teacher in due course.

A decade after her initial appointment, respondent

No.5 asked the appellant to get her caste credentials

verified from the Scheduled Tribe Certificate Scrutiny

Committee. The appellant complied with the said direction

and submitted her certificate to the Committee concerned,

which in turn forwarded it for a proper vigilance inquiry. In

the course of the said inquiry, the school record of the

appellant was also looked into which showed that the

appellant’s father was a ‘Koshti’ by caste which caste was

not a Scheduled Tribe in Maharashtra.

The Committee, therefore, concluded that the Caste

Certificate of the appellant was invalid and accordingly

cancelled the same. This led to the school passing an Order

dated 23

rd

February, 2008 whereby the services of the

appellant were terminated with immediate effect. The

termination Order said:

3

Page 4 “……..You were appointed on the post reserved for

candidate of Scheduled Tribes. At the time of

appointment you produced certificate showing that you

belong to the category of Scheduled Tribes. There after

the said Certificate was sent for verification to the

Caste Scrutiny Committee. The said Committee after

giving opportunity of hearing and adducing of evidence

decided the enquiry and came to the conclusion that

you do not belong to the category as mentioned in the

certificate produced by you and consequently

invalidated the caste certificate produced by you are

not entitled to continue on the post as the post is

reserved for the candidate of Scheduled Tribes

Community.”

Aggrieved by the above, the appellant filed an appeal

before the School Tribunal under Section 9 of the

Maharashtra Employees of Private School (Condition of

Service) Regulation Act, 1977 which failed and was

dismissed by the Tribunal by its order dated 25

th

September, 2008. The appellant then preferred a writ

petition before the High Court of Nagpur challenging the

order passed by the Scheduled Tribe Certificate Scrutiny

Committee invalidating her caste claim. The High Court saw

no reason to interfere and dismissed the said petition by

the order impugned before us. The High Court observed:

“... neither the petitioner personally nor through her

agent appeared before the Caste Scrutiny Committee

nor submitted any reply to the Vigilance Cell Inquiry

Report. Perusal of the order of Caste Scrutiny

4

Page 5 Committee further reveals that the Vigilance Cell

collected the document dated 18.10.1956 i.e., extract

of School entry in respect of father of the petitioner,

wherein caste of father of the petitioner mentioned as

“Koshti”. Similarly, the another document collected by

the Vigilance Cell further shows that the petitioner does

not belong to “Halba” Scheduled Tribe. Petitioner also

failed to establish affinity with the “Halba” Scheduled

Tribe. In the circumstances, the conclusion arrived at

by the Caste Scrutiny Committee is just and proper and

needs no interference.”

3.The present appeal assails the correctness of the

above order as already noticed.

4.Learned counsel appearing for the appellant raised a

short point before us. He contended that the appointment

of the appellant having attained finality, could not have

been set aside on the ground that Koshti-Halbas were not

‘Halbas’ entitled to the benefit of reservation as Scheduled

Tribes. Relying upon the decision of the Constitution Bench

of this Court in State of Maharashtra v. Milind (2001) 1

SCC 4, it was urged by the learned counsel that the

appellant was entitled to the protection of continuance in

service, no matter ‘Halba-Koshtis’ were not recognised as

‘Halbas’ by this Court. The High Court had not, according to

the learned counsel, correctly appreciated the decision of

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Page 6 this Court in Milind’s case (supra) and thereby fallen in an

error in dismissing the writ petition filed by the appellant.

He also placed reliance upon the Office Memorandum issued

by the Government of India, Ministry of Personnel, Public

Grievances and Pensions, Department of Personnel &

Training dated 10

th

August, 2010 whereby protection

against ouster of those appointed in the Scheduled Tribe

category had been extended to persons appointed on the

basis of their being ‘Halba-Koshti’ in the State of

Maharashtra. It was further urged that relying upon the

said subsequent development, this Court had allowed one

Raju Gadekar, a candidate similarly placed as the appellant

to seek the benefit under the circular by moving a suitable

application before the High Court. There was according to

the learned counsel no reason to take a different view in

the case of the appellant, especially when this Court had

in Milind’s case (supra) followed in subsequent decisions,

extended protection against ouster from service to those

appointed in the Scheduled Tribe category on the basis of

the certificates showing the persons appointed to be a

‘Koshti-Halba’ by caste.

6

Page 7 5.On behalf of the respondent, it was urged that the

decision of this Court in Milind’s case (supra) was

distinguishable from the facts of the case at hand inasmuch

as that case dealt with admission to a professional course

and not with appointment to any public office. It was

further argued that the decision of this Court in Milind’s

case (supra) had been explained by this Court in

subsequent decisions including R. Vishwanatha Pillai v.

State of Kerala (2004) 2 SCC 105; State of

Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481;

Bank of India v. Avinash D. Mandivikar (2005) 7 SCC

690 and Union of India v. Dattatray (2008) 4 SCC 612

and the benefit limited only to cases arising out of

admission to professional courses where the candidate had

already completed the course and their ouster would result

in no benefit to anyone.

6.In Milind’s case (supra), the Constitution Bench of

this Court was examining whether Koshti was a sub-tribe

within the meaning of Halba/Halbi as appearing in the

Constitution (Scheduled Tribes) Order, 1950. The

7

Page 8 respondent in that case had obtained a Caste Certificate

from the Executive Magistrate to the effect that he

belonged to ‘Halba’ Scheduled Tribe. He was on that basis

selected for appointment to the MBBS Degree Course in the

Government Medical College for the session 1985-86

against a seat reserved for Scheduled Tribe candidates. The

certificate relied upon by the respondent-Milind was sent to

the Scrutiny Committee, the Committee recorded a finding

after inquiry to the effect that the respondent did not

belong to Scheduled Tribe. In an appeal against the said

Order, the Appellate Authority concurred with the view

taken by the Committee and declared that the respondent-

Milind belonged to ‘Koshti Caste’ and not to ‘Halba Caste’

Schedule Tribe.

7.In a writ petition filed against the said order by Milind,

the High Court held that it was permissible to examine

whether any sub-division of a tribe was a part and parcel of

the tribe mentioned therein and whether ‘Halba-Koshti’ was

a sub-division of the main tribe ‘Halba’ within the meaning

of Entry 19 in the Constitution (Scheduled Tribes) Order,

8

Page 9 1950. The High Court further held that Halba-Koshti was

indeed a sub-tribe of Halba appearing in the Presidential

Order.

8.In an appeal filed against the above order of the High

Court, this Court held that the Courts cannot and should not

expand their jurisdiction while dealing with the question as

to whether a particular caste or sub-caste,tribe or sub-

tribe is included in any one of the Entries mentioned in the

Presidential Orders issued under Articles 341 and 342.

Allowing the State Government or the Courts or other

authorities or tribunals to hold an inquiry as to whether a

particular caste or tribe should be considered as one

included in the Schedule to the Presidential order, when it is

not so specifically included would lead to problems. This

Court declared that the holding of an inquiry or production

of any evidence to decide or declare whether any tribe or

tribal community or part thereof or a group or part of a

group is included in the general name, even though it is not

specifically found in the entry concerned would not be

9

Page 10 permissible and that the Presidential Order must be read as

it is.

9.Having said so, this Court noticed the stand taken by

the Government on the issue of ‘Halba-Koshti’ from time to

time and the circulars, resolutions, instructions but held

that even though the said circulars, instructions had shown

varying stands taken by the Government from time to time

relating to ‘Halba-Koshti’ yet the power of judicial review

exercised by the High Court did not extend to interfering

with the conclusions of the competent authorities drawn on

the basis of proper and admissible evidence before it. This

Court observed:

“…….The jurisdiction of the High Court would be much

more restricted while dealing with the question whether

a particular caste or tribe would come within the

purview of the notified Presidential Order, considering

the language of Articles 341 and 342 of the

Constitution. These being the parameters and in the

case in hand, the Committee conducting the inquiry as

well as the Appellate Authority, having examined all

relevant materials and having recorded a finding that

Respondent 1 belonged to “Koshti” caste and has no

identity with “Halba/Halbi” which is the Scheduled Tribe

under Entry 19 of the Presidential Order, relating to the

State of Maharashtra, the High Court exceeded its

supervisory jurisdiction by making a roving and in-

depth examination of the materials afresh and in

coming to the conclusion that “Koshtis” could be

treated as “Halbas”. In this view the High Court could

not upset the finding of fact in exercise of its writ

jurisdiction.”

10

Page 11 10.What is important is that this Court noticed the

prevailing confusion arising out of different circulars and

instructions on the question of ‘Halba-Koshti’ being

Scheduled Tribes. Dealing with the observations made by

the High Court and referring to circulars, instructions and

resolution issued by the Government from time to time, this

court observed:

“33. The High court in paras 20 to 23 dealt with

circulars/resolutions/ instructions/orders made by the

Government from time to time on the issue of “Halba-

Koshtis”. It is stated in the said judgment that up to

20-7-1962 “Halba-Koshtis” were treated as “Halbas” in

the specified areas of Vidarbha. The Government of

Maharashtra, Education and Social Welfare Department

issued Circular No. CBC 1462/3073/M to the effect that

“Halba-Koshtis” were not Scheduled Tribes and they are

different from “Halba/Halbis”. In the said circular it is

also stated that certain persons not belonging to

“Halba” Tribe have been taking undue advantage and

that the authorities competent to issue caste

certificates should take particular care to see that no

person belonging to “Halba-Koshtis” or “Koshti”

community is given a certificate declaring him as a

member of Scheduled Tribes. On 22-8-1967 the

abovementioned circular of 20-7-1962 was withdrawn.

Strangely, on 27-9-1967, another Circular No. CBC-

1466/9183/M was issued showing the intention to treat

“Halba-Koshti” as “Halba”. On 30-5-1968 by Letter No.

CBC-1468-2027-O, the State Government informed the

Deputy Secretary to the Lok Sabha that “Halba-Koshti”

is “Halba/Halbi” and it should be specifically included in

the proposed amendment Act. The Government of

Maharashtra on 29-7-1968 by Letter No. EBC-

1060/49321-J-76325 informed the Commissioner for

Scheduled Castes and Scheduled Tribes that “Halba-

11

Page 12 Koshti” community has been shown included in the list

of Scheduled Tribes in the State and the students

belonging to that community were eligible for the

Government of India Post-Matric Scholarships. On 1-1-

1969 the Director of Social Welfare, Tribal Research

Institute, Pune, by his Letter No. TRI/I/H.K./68-69

stated that the State Government could not in law

amend the Scheduled Tribes Order and that a tribe not

specifically included, could not be treated as Scheduled

Tribe. In this view the Director sought for clarification.

The Government of India on 21-4-1969 wrote to the

State Government that in view of Basavalingappa case

“Halba-Koshti” community could be treated as

Scheduled Tribe only if it is added to the list as a sub-

tribe in the Scheduled Tribes Order and not otherwise.

Thereafter, few more circulars were issued by the State

Government between 24-10-1969 and 6-11-1974 to

recognise “Halba-Koshtis” as “Halbas” and indicated as

to who were the authorities competent to issue

certificates and the guidelines were given for inquiry.

There was again departure in the policy of the State

Government by writing a confidential Letter No. CBC-

1076/1314/Desk-V dated 18-1-1977. The Government

informed the District Magistrate, Nagpur, that “Halba-

Koshtis” should not be issued “Halba” caste certificate.

Thereafter, few more circulars, referred to in para 22 of

the judgment, were issued. It may not be necessary to

refer to those again except to the circular dated 31-7-

1981 bearing No. CBC-1481/(703)/D.V. by which the

Government directed that until further orders insofar as

“Halbas” are concerned, the School Leaving Certificate

should be accepted as valid for the purpose of the

caste. Vide resolution dated 23-1-1985 a new Scrutiny

Committee was appointed for verification of caste

certificates of the Scheduled Tribes. The High Court had

observed in para 23 of the judgment that several

circulars issued earlier were withdrawn but the said

circular dated 31-7-1981 was not withdrawn. For the

first time on 8-3-1985 the Scrutiny Committee was

authorised to hold inquiry if there was any reason to

believe that the certificate was manipulated or

fabricated or had been obtained by producing

insufficient evidence. Referring to these

circulars/resolutions the High Court took the view that

the caste certificate issued to Respondent 1 could be

considered as valid and up to 8-3-1985 the inquiry was

governed by circular dated 31-7-1981. The High Court

12

Page 13 dealing with the stand of the State Government on the

issue of “Halba-Koshti”, from time to time, and also

referring to circulars/resolutions/instructions held in

favour of Respondent 1 on the ground that the

appellant was bound by its own circulars/orders. No

doubt, it is true, the stand of the appellant as to the

controversy relating to “Halba-Koshti” has been varying

from time to time but in the view we have taken on

Question 1, the circulars/ resolutions/instructions

issued by the State Government from time to time,

some times contrary to the instructions issued by the

Central Government, are of no consequence. They

could be simply ignored as the State Government had

neither the authority nor the competency to amend or

alter the Scheduled Tribes Order.

But we make it clear that he cannot claim to belong

to the Scheduled Tribe covered by the Scheduled Tribes

Order. In other words, he cannot take advantage of the

Scheduled Tribes Order any further or for any other

constitutional purpose. Having regard to the passage of

time, in the given circumstances, including interim

orders passed by this Court in SLP (C) No. 16372 of

1985 and other related matters, we make it clear that

the admissions and appointments that have become

final, shall remain unaffected by this judgment.”

11.A careful reading of the above would show that both

the High Court as also this Court were conscious of the

developments that had taken place on the subject whether

‘Halba-Koshti’ are ‘Halbas' within the meaning of the

Presidential Order. The position emerging from the said

circulars, resolutions and orders issued by the competent

authority from time to time notwithstanding, this Court on

an abstract principle of law held that an inquiry into the

13

Page 14 question whether ‘Halba-Koshti’ were Halbas within the

meaning of the Presidential order was not legally

permissible.

12.The appellant before us relies upon the above passage

extracted above to argue that her appointment had

attained finality long before the judgment of this Court was

delivered in Milind’s case and even when she was found to

be a ‘Koshti’ and not a ‘Halba’ by the Verification

Committee, she was entitled to protection against ouster.

13.We find merit in that contention. If ‘Halba-Koshti’ has

been treated as ‘Halba’ even before the appellant joined

service as a Teacher and if the only reason for her ouster is

the law declared by this Court in Milind’s case, there is no

reason why the protection against ouster given by this

Court to appointees whose applications had become final

should not be extended to the appellant also. The

Constitution Bench had in Milind’s case noticed the

background in which the confusion had prevailed for many

years and the fact that appointments and admissions were

made for a long time treating ‘Koshti’ as a Scheduled Tribe

14

Page 15 and directed that such admissions and appointments

wherever the same had attained finality will not be affected

by the decision taken by this Court. After the

pronouncement of judgment in Milind’s case, a batch of

cases was directed to be listed for hearing before a Division

Bench of this Court. The Division Bench eventually decided

those cases by an order dated 12

th

December 2000 (State

of Maharashtra v. Om Raj (2007) 14 SCC 488) granting

benefit of protection against ouster to some of the

respondents on the authority of the view taken by this

Court in Milind’s case. One of these cases, namely, Civil

Appeal No.7375 of 2002 arising out of SLP No.6524 of 1988

related to the appointment of a ‘Koshti’ as an Assistant

Engineer against a vacancy reserved for a ‘Halba/Scheduled

Tribe candidate. This court extended the benefit of

protection against ouster to the said candidate also by a

short order passed in the following words:

“4. Leave granted.

5. The appellant having belonged to Koshti caste

claimed to be included in the Scheduled Tribe of Halba

and obtained an appointment as Assistant Engineer.

15

Page 16 When his appointment was sought to be terminated on

the basis that he did not belong to Scheduled Tribe by

the Government a writ petition was filed before the

High Court challenging that order which was allowed.

That order is questioned in this appeal. The questions

arising in this case are covered by the decision in State

of aharashtra v. Milind

1

and were got to be allowed,

however, the benefits derived till now shall be available

to the appellant to the effect that his appointment as

Assistant Engineer shall stand protected but no further.

The appeal is disposed of accordingly.”

14.Reference may also be made to Punjab National

Bank v. Vilas (2008) 14 SCC 545. That too was a case

of appointment based on a certificate which was later

cancelled on the ground that ‘Halba Koshti’ was not the

same as ‘Halba’ Scheduled Tribe. The High Court had set

aside the termination of the service of the affected

candidates relying upon a Government resolution dated 15

th

June 1995 as applicable to Punjab National Bank. While

upholding the said order, H.K. Sema, J. held the candidate

to be protected against ouster on the basis of the

resolution. V.S. Sirpurkar, J., however, took a slightly

different view and held that the appointment made by the

Bank having become final the same was protected against

ouster in terms of the decision of the Constitution Bench in

Milind’s case (supra). The question whether the

16

Page 17 Government resolution protected the candidates against

ouster from service was for that reason left open by His

Lordship. Reliance in support of that view was placed upon

the decision of this Court in Civil Appeal No. 7375 of

2000 (wrongly mentioned in the report as Civil appeal No.

3375 of 2000) mentioned above. The Court observed:

“The situation is no different in case of the present

respondent. He also came to be appointed and/or

promoted way back in the year 1989 on the basis of his

caste certificate which declared him to be Scheduled

Tribe. Ultimately, it was found that since a “Koshti”

does not get the status of a Scheduled Tribe, the Caste

Scrutiny Committee invalidated the said certificate

holding that the respondent was a Koshti and not a

Halba. I must hasten to add that there is no finding in

the order of the Caste Scrutiny Committee that the

petitioner lacked in bona fides in getting the certificate.

I say this to overcome the observations in para 21 in

Sanjay K. Nimje case. But it is not a case where the

respondent pleaded and proved bona fides. Under such

circumstances the High Court was fully justified in

relying on the observations made in Milind case. The

High Court has not referred to the judgment and order

in Civil Appeal No. 3375 of 2000 decided on 12-12-

2000 to which a reference has been made above.

However, it is clear that the High Court was right in

holding that the observations in Milind case apply to

the case of the present respondent and he stands

protected thereby”.

15.Our attention was drawn by counsel for the

respondents to the decision of this Court in Addnl.

General Manager/Human Resource BHEL v. Suresh

17

Page 18 Ramkrishna Burde (2007) 5 SCC 336 in which the

protection against ouster granted by the decision in

Milind’s case was not extended to the respondent therein.

A bare reading of the said decision, however, shows that

there is a significant difference in the factual matrix in

which the said case arose for consideration. In Burde’s

case, the Scrutiny Committee had found that the caste

certificate was false and, therefore, invalid. That was not

the position either in Milind’s case nor is that the position

in the case at hand. In Milind’s case, the Scrutiny

Committee had never alleged any fraud or any fabrication

or any misrepresentation that could possibly disentitle the

candidate to get relief from the Court. In the case at hand

also there is no such accusation against the appellant that

the certificate was false, fabricated or manipulated by

concealment or otherwise. Refusal of a benefit flowing from

the decision of this Court in Milind’s case may, therefore,

have been justified in Burde’s case but may not be

justified in the case at hand where the appellant has not

been accused of any act or omission or commission of the

act like the one mentioned above to disentitle her to the

18

Page 19 relief prayed for. The reliance upon Burde’s case (supra),

therefore, if of no assistance to the respondent.

The decision of this Court in State of Maharashtra v.

Sanjay K. Nimje (2007) 14 SCC 481 relied upon by

learned counsel for the respondents was distinguished even

by V.S. Sirpurkar, J. in Vilas’s case. The distinction is

primarily in terms whether the candidate seeking

appointment or admission is found guilty of a conduct that

would disentitle him/her from claiming any relief under the

extraordinary powers of the Court. This Court found that if

a person secures appointment or admission on the basis of

false certificate he cannot retain the said benefit obtained

by him/her. The Courts will refuse to exercise their

discretionary jurisdiction depending upon the facts and

circumstances of each case. The following passage from

decision in the Nimje’s case is apposite:

“In a situation of this nature, whether the Court will

refuse to exercise its discretionary jurisdiction under

Article 136 of the Constitution of India or not would

depend upon the facts and circumstances of each case.

This aspect of the matter has been considered recently

by this Court in Sandeep Subhash Parate v. State of

Maharashtra (2006) 7 SCC 501.”

19

Page 20 16.Applying the above to the case at hand we do not see

any reason to hold that the appellant had fabricated or

falsified the particulars of being a Scheduled Tribe only with

a view to obtain an undeserved benefit in the matter of

appointment as a Teacher. There is, therefore, no reason

why the benefit of protection against ouster should not be

extended to her subject to the usual condition that the

appellant shall not be ousted from service and shall be re-

instated if already ousted, but she would not be entitled to

any further benefit on the basis of the certificate which she

has obtained and which was 10 years after its issue

cancelled by the Scrutiny committee.

17.In the result, we allow this appeal, set aside the order

passed by the High Court and direct the reinstatement of

the appellant in service subject to the condition mentioned

above. We further direct that for the period the appellant

has not served the institution which happens to be an aided

school shall not be entitled to claim any salary/back wages.

She will, however, be entitled to continuity of service for all

other intents and purposes. The respondent shall do the

20

Page 21 needful within a month from the date of this order. The

parties are left to bear their own costs.

……………………………………… .……….…..…J.

(T.S. Thakur)

…………………………… ..………………… ..…..…J.

(Fakkir Mohamed Ibrahim Kalifulla)

New Delhi

August 9, 2012

21