The Chief Regional Office The … vs Pradip on 27 January, 2020


Supreme Court of India

The Chief Regional Office The … vs Pradip on 27 January, 2020

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, K.M. Joseph

                                                             1

                                                                                        Reportable



                                           IN THE SUPREME COURT OF INDIA
                                            CIVIL APPELLATE JURISDICTION

                                                 Civil Appeal No 742 of 2020
                                          (Arising out of SLP(C) No 21619 of 2017)



     The Chief Regional Officer
     The Oriental Insurance Co Ltd                                                   .... Appellant(s)

                                                          Versus


     Pradip and Anr                                                                  ....Respondent(s)




                                                     JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Delay condoned.

     2                   Leave granted.


     3                   The first respondent was appointed as an Assistant by the appellant on the basis

of a claim that he belonged to a Scheduled Tribe, namely, the Dhangad community. As
Signature Not Verified

Digitally signed by
SANJAY KUMAR
Date: 2020.01.29
the record shows, he belongs to the Dhangar community (a nomadic tribe) and not to
16:55:37 IST
Reason:

the Dhangad community (listed as a Scheduled Tribe for Maharashtra). The first
2

respondent claimed the benefit of belonging to a Schedule Tribe on the basis of a caste

certificate dated 17 August 1984 issued by the Executive Magistrate, Hingna. The

appellant called upon the first respondent to submit the caste certificate by a letter

dated 15 February 2011. The appellant then addressed a communication on 14 July

2011 to the issuing authority which, by a communication dated 9 May 2014, informed

the appellant that the caste certificate was not registered in its records. In August 2014,

the first respondent was called upon to submit a fresh caste certificate. The first

respondent did not submit a fresh caste certificate, but approached the issuing authority

and then submitted a letter dated 14 August 2014 to the appellant whereby the issuing

authority had stated that the caste certificate had been issued from the office of the

Executive Magistrate. On 3 August 2015, the first respondent applied for verification of

his caste certificate to the Scrutiny Committee. The first respondent submitted an

application before the Scrutiny Committee on 15 February 2016. By an order dated 25

April 2016, the Scrutiny Committee invalidated the claim. The Scrutiny Committee

noted, in the course of its order, that the first respondent had submitted an application

on 15 February 2016 merely seeking protection of his service. The Scrutiny Committee

observed that the first respondent was well aware of the fact that he did not belong to

the Dhangad Scheduled Tribe, but belonged to the Dhangar Community, which is a

nomadic tribe. It noted that the documents which had been submitted by the first

respondent pertained only to the Dhangar Community and not to the Dhangad

Scheduled Tribe. The documents pertaining to the first respondent and his father were

scrutinized by the Committee which came to the conclusion that there was no merit in

the claim of the first respondent of belonging to the Dhangad Scheduled Tribe.
3

4 Aggrieved by the order of the Scrutiny Committee, the first respondent instituted

a writ petition1 before the High Court of Judicature at Bombay Bench at Nagpur. The

relief which was sought in the writ petition was for the protection of his services in view

of a Full Bench decision of the High Court in Arun Sonone v State of Maharashtra2

(Arun Sonone). The first respondent also challenged the order of the Scrutiny

Committee.

5 The High Court, by its judgment and order dated 11 July 2016, issued a direction

to the effect that the services of the first respondent were liable to be protected, in view

of the judgment of its Full Bench in Arun Sonone.

6 Assailing the judgment of the High Court, it has been submitted on behalf of the

appellant by Mr Dinesh Mathur, learned counsel, that the judgment of the Full Bench of

the Bombay High Court in Arun Sonone has been overruled in a decision of a three-

Judge Bench of this Court in Chairman and Managing Director, Food Corporation of

India v Jagdish Balaram Bahira3 (FCI).

7 In its judgment in FCI, this Court has held:

“48…Where a candidate had been appointed to a reserved
post on the basis of the claim that he or she was a member of
the group for which the reservation is intended, the
invalidation of the claim to belong to that group would, as a
necessary consequence, render the appointment void ab
initio. The rationale for this is that a candidate who would
otherwise have to compete for a post in the general pool of
unreserved seats had secured appointment in a more
restricted competition confined to the reserved category and
usurped a benefit meant for a designated caste, tribe or class.
Once it was found that the candidate had obtained admission
upon a false representation to belong to the reserved
category, the appointment would be vitiated by fraud and
would be void ab initio. The falsity of the claim lies in a

1 Writ Petition No 2846 of 2016
2 2015 (1) Mh LJ 457
3 (2017) 8 SCC 670
4

representation that the candidate belongs to a category of
persons for whom the reservation is intended whereas in fact
the candidate does not so belong. The reason for depriving
the candidate of the benefit which she or he has obtained on
the strength of such a claim, is that a person cannot retain the
fruits of a false claim on the basis of which a scarce public
resource is obtained…

A candidate who does so causes detriment to a genuine
candidate who actually belongs to the reserved category who
is deprived of the seat. For that matter, a detriment is caused
to the entire class of persons for whom reservations are
intended, the members of which are excluded as a result of
an admission granted to an imposter who does not belong to
the class. The withdrawal of benefits, either in terms of the
revocation of employment or the termination of an admission
was hence a necessary corollary of the invalidation of the
claim on the basis of which the appointment or admission was
obtained. The withdrawal of the benefit was not based on
mens rea or the intent underlying the assertion of a false
claim. In the case of a criminal prosecution, intent would be
necessary. On the other hand, the withdrawal of civil benefits
flowed as a logical result of the invalidation of a claim to
belong to a group or category for whom the reservation is
intended.”

8 We may note at this stage that in paragraph 59 of the judgment, this Court has

observed thus:

“59. The Full Bench judgment of the Bombay High Court
in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom
4595 : (2015) 1 Mah LJ 457] has essentially construed the
judgments in Kavita Solunke [Kavita Solunke v. State of
Maharashtra
, (2012) 8 SCC 430 : (2012) 2 SCC (L&S) 609] and
in Shalini [Shalini v. New English High School Assn., (2013) 16
SCC 526 : (2014) 3 SCC (L&S) 265] as having impliedly
overruled the earlier Full Bench judgments in Ganesh Rambhau
Khalale [Ganesh Rambhau Khalale v. State of Maharashtra
, 2009
SCC OnLine Bom 20 : (2009) 2 Mah LJ 788] and Ramesh
Suresh Kamble [Ramesh Suresh Kamble v. State of
Maharashtra
, 2006 SCC OnLine Bom 1078 : (2007) 1 Mah LJ
423] . In view of the conclusion which we have arrived at in
regard to the earlier decisions rendered by the two-Judge
Benches in Kavita Solunke [Kavita Solunke v. State of
Maharashtra
, (2012) 8 SCC 430 : (2012) 2 SCC (L&S) 609]
and Shalini[Shalini v. New English High School Assn., (2013) 16
SCC 526 : (2014) 3 SCC (L&S) 265] , we are unable to subscribe
5

to the view expressed by the Full Bench in Arun [Arun v. State of
Maharashtra
, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ
457] . The judgment of the Full Bench of the Bombay High Court
in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom
4595 : (2015) 1 Mah LJ 457] holds that: (SCC OnLine Bom para

75)

(i) mere invalidation of the caste claim by the Scrutiny Committee
would not entail the consequences of withdrawal of benefits or
discharge from employment or cancellation of appointments that
have become final prior to the decision in Milind [State of
Maharashtra v. Milind
, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] on
28-11-2000;

(ii) the benefit of protection in service upon invalidation of the
caste claim is available not only to persons belonging to Koshti
and Halba Koshti but is also available to persons belonging to the
special backward category on the same terms.

The High Court has even gone to the extent of holding that the
decision in Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4
: 2001 SCC (L&S) 117] was in the nature of prospective
overruling of the law which was laid down by the Bombay High
Court. The above view of the Bombay High Court is clearly
unsustainable. Neither the judgment in Milind [State of
Maharashtra v. Milind
, (2001) 1 SCC 4 : 2001 SCC (L&S) 117]
nor any of the judgments of this Court which have construed it
have held that Milind [State of Maharashtra v. Milind, (2001) 1
SCC 4 : 2001 SCC (L&S) 117] was an exercise in prospective
overruling. The High Court was in error in holding so. The
decision of the Full Bench in Arun [Arun v. State of Maharashtra,
2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] is
unsustainable. The Full Bench had evidently failed to notice that
cases where the protection was granted by this Court following
the invalidation of a caste claim was in exercise of the power
conferred by Article 142 of the Constitution, depending upon the
facts and circumstances of each case. The jurisdiction under
Article 142 is clearly not available to the High Court in the
exercise of its jurisdiction under Article 226. The High Court erred
in arrogating that jurisdiction to itself.”
6

9 Hence, the basis of the judgment of the High Court is unsustainable as a result of

the law which has been laid down in the judgment in FCI. The decision of the Bombay

High Court in Arun Sonone has been disapproved.

10 Faced with this difficulty, Mr Soumya Chakraborty, learned senior counsel

appearing on behalf of the respondent, has relied upon an Office Memorandum dated 8

April 2019 issued by the Ministry of Personnel, Public Grievances and Pensions,

Department of Personnel and Training. The Office Memorandum is extracted below:

“OFFICE MEMORANDUM

Subject: Orders of Hon’ble Supreme Court in Civil Appeal No
10396/2018 arising out of SLP No. 13011/2018 Gajanan
Marotrao Nimje & Others Vs RBI & Others and Civil Appeals
Nos 10387-10388/2018 arising out of SLP Nos 18555-
18556/2018 SG Barapatre & Others Vs Shri Ananta Gajanan
Gaiki & Others regarding Appointment of candidates
belonging to Halba/Halba Koshti/Koshti caste/community
against vacancies reserved for the Scheduled Tribes;
representations received – Regarding

****

With reference to the subject cited above, attention is drawn
to the Hon’ble Supreme Court judgment dated 11.10.2018 in
Civil Appeal No 10396/2018 arising out of SLP No.
13011/2018 Gajanan Marotrao Nimje & Others Vs RBI &
Others In which the Apex Court has, inter-alia, passed the
following order:-

“,…all appellants (who are from Ha/ba
Koshti/Koshti/Halba communities) shall be
placed below the list of the general category
candidates as on 28.11.2000 and will be
continued as such till their superannuation. All
the benefits which the appellants earned as
reserved category candidates after 28.11.2000
will be surrendered/recovered. After 28.11.2000
the benefits available to the reserved category
candidates will be given to the members of the
reserved category regarding whom there is no
dispute. There shall be no recovery of any
benefits from the employees who are already
7

superannuated…”

2. A similar stand has been taken by the Hon’ble
Supreme Court in Civil Appeals Nos 10387-10388/2018
arising out of SLP Nos 18555-18556/2018 SG Barapatre &
Others Vs Shri Ananta Gajanan Gaiki & Others dated
10.10.2018 as under:-

“For all purposes, those people will get
themselves arrayed in the general category as
on 28.11.2000 and placed below the last of the
general category candidate as on that date.”

3. All Ministries/Departments are requested to furnish
action taken in the light of the above judgments. Copies of the
aforesaid judgments are annexed herewith for ready
reference.”

Reliance has also been placed on another circular dated 20 June 2019 issued by the

Government of India, Department of Revenue, Central Board of Direct Taxes. Both

circulars have relied upon the judgments of a two-Judge Bench of this Court in S G

Barapatre v Shri Ananta Gajanan Gaiki4 (Barapatre) and Gajanan Marotrao Nimje v

The Reserve Bank of India5 (Nimje).

11 In order to consider the background in which the above circulars are issued, it

would be necessary to advert to certain significant facets having a bearing on the above

two decisions of this Court.

12 In Barapatre, the appellants were in appeal before this Court against the orders

passed by the Nagpur Bench of the Bombay High Court. The High Court noted that the

appellants had declined to subject themselves to a scrutiny of their caste certificate, as a

consequence of which their services were directed to be discontinued. When the matter

4 Civil Appeal Nos 10387-10388 of 2018
5 Civil Appeal Nos 10396 of 2018
8

travelled in appeal before this Court, a two judge Bench of this Court, by its judgment

dated 10 October 2018, noted that the same issue had earlier been considered by the

High Court, leading to a judgment dated 1 November 2012 in Writ Petition No 5198 of

2009 and connected matters. The High Court, in the course of its earlier judgment, had

issued the following directions:

“18. In that view of the matter, we find that the petitioners are
entitled to limited relief, that they are praying for. In the result,
the impugned show cause notices are quashed and set aside.

It is declared that the petitioners would be entitled to
protection of their appointments. It is further declared that if
any benefits are granted after 28.11.2000 on the basis that
they belong to Scheduled Tribes, the respondent Authorities
are at liberty to withdraw the said benefits and restore the
position as on 28.11.2000. The respondents to take further
necessary steps in accordance therewith.”

This Court noted in its decision in Barapatre that Food Corporation of India challenged

the order of the High Court dated 1 November 2012 before this Court in Special Leave

Petitions under Article 136 of the Constitution which were dismissed on 12 April 2013.

Review petitions were also dismissed on 26 February 2014. In this background, the

Bench of two judges in the judgment dated 10 October 2018 in Barapatre observed as

follows:

“8. Therefore, the said judgment qua the employees, who
were parties to those writ petitions have become final. The
benefits which have been granted, as per the judgment
specifically referred to in paragraph 18 of the judgment, which
is extracted above, cannot be taken away in collateral
proceedings.

9. We make it clear that the employees covered by the said
judgment shall only be entitled to the benefits which have
been granted specifically in paragraph 18 of the judgment
referred to above. For all purposes, those people will get
themselves arrayed in the general category as on 28.11.2000
and placed below the last of the general category candidate
as on that date.”
9

13 The above observations make it abundantly clear that the challenge by the Food

Corporation of India to the order of the Bombay High Court had been rejected on 12

April 2013 and as a result of the decision inter partes, the order of the High Court had

attained finality. Consequently, this Court clarified in paragraph 9 of the above order

that only the employees covered by the earlier judgment shall be entitled to the benefits

which have been granted specifically by the High Court in paragraph 18 of its judgment,

which has been extracted above.

14 The decision of the two judge Bench of this Court in Nimje was delivered on 11

October 2018, a day after Barapatre. The judgment, which pertained to the Reserve

Bank of India, again adverted to the earlier decision of the High Court dated 1

November 2012. The judgment of this Court extracted paragraph 18 of the judgment of

the High Court (quoted above) based on which the Reserve Bank of India had issued a

circular dated 1 July 2013. It was in this background that this Court, in its judgment

dated 11 October 2018, observed as follows:

“7. Apparently, there was some confusion with regard to the
implementation of the judgment dated 01.11.2012 in the
judgment in Writ Petition No.1512/2004 and connected
matters.

8. Based on the recent judgment of this Court passed in
Chairman and Managing Director, Food Corporation of India
and Others Vs. Jagdish Balaram Bahira and Others, reported
in (2017) 8 SCC 670, the High Court passed the impugned
order directing the termination and recovery of the benefits.

9. We are afraid, in the peculiar background of the appellants
and the history of the previous litigation of the same issue, the
High Court is not justified in passing such an omnibus order.
There is no case for anybody leave alone the writ petitioners
that at the time of entry in service, the appellants played any
fraud. There was no case that the petitioners therein had
played any fraud in obtaining the certificate or employment. In
any case the appellants, it is pointed out that, even assuming
that they do not belong to Scheduled Caste or Scheduled
10

Tribe, fall either under the most backward or under the
backward category, who were also entitled to some
reservation at the time of recruitment. In order to avoid any
litigation on this aspect only, the High Court in its wisdom
passed the judgment dated 1.11.2012, that all the petitioners
therein will be put in the general category.

10. It will be relevant to note that the common judgment dated
01.11.2012 was challenged before this Court and the special
leave petition(s) and the review petition(s) were also
dismissed.

11. Having regard to the background, as above, we are of the
view that the appellants are entitled to the protection granted
by the same High Court in the judgment dated 1.11.2012 in
Writ Petition No.1512/2004. In any case the parties to the writ
petition cannot be disturbed collaterally and the judgment
operated as a judgment in rem in view of the circular dated
1.7.2013 issued by the Reserve Bank of India and since the
litigations were pursued by the respective associations.”

15 The above observations indicate that it was in the peculiar background, which

was noted by this Court, that the protection of services was granted. Again, it is

necessary to note that in paragraph 10 of the observations which have been extracted

above, this Court has noted that the common judgment of the High Court dated 1

November 2012 had been challenged before this Court and both the Special Leave

Petitions and the Review Petitions were also dismissed.

16 The above narration would indicate that the decisions in Barapatre dated 10

October 2018 and Nimje dated 11 October 2018 were rendered in a context where,

prior to the decision of the three judge Bench in FCI, the order of the High Court dated 1

November 2012 had attained finality. Since the order of the High Court inter partes had

attained finality before the decision in FCI, the matter had to rest there. Both Barapatre

and Nimje are decisions of a two judge Bench and do not lay down any principle of law

contrary to the binding three judge Bench decision in FCI. Neither the DOPT circular

dated 8 April 2019 nor the circular dated 20 June 2019 of the Department of Revenue
11

can depart from the principles laid down in FCI. The circulars must hence be construed

to apply only to the peculiar facts noted in Barapatre and Nimje which we have

explained earlier. Any other construction of the circulars will render them ultra vires. The

government by an executive act cannot possibly over-ride the binding decision of the

three judge Bench of this Court in FCI. In the decision in FCI, this Court held :

“65. Administrative circulars and government resolutions are
subservient to legislative mandate and cannot be contrary
either to constitutional norms or statutory principles. Where a
candidate has obtained an appointment to a post on the
solemn basis that he or she belongs to a designated caste,
tribe or class for whom the post is meant and it is found upon
verification by the Scrutiny Committee that the claim is false,
the services of such an individual cannot be protected by
taking recourse to administrative circulars or resolutions.

Protection of claims of a usurper is an act of deviance to the
constitutional scheme as well as to statutory mandate. No
government resolution or circular can override constitutional
or statutory norms. The principle that the Government is
bound by its own circulars is well settled but it cannot apply in
a situation such as the present. Protecting the services of a
candidate who is found not to belong to the community or
tribe for whom the reservation is intended substantially
encroaches upon legal rights of genuine members of the
reserved communities whose just entitlements are negated by
the grant of a seat to an ineligible person. In such a situation
where the rights of genuine members of reserved groups or
communities are liable to be affected detrimentally,
government circulars or resolutions cannot operate to their
detriment.”

17 The present case is governed by the judgment in FCI. Admittedly, the issue

pertaining to the protection of the services of the first respondent had not attained

finality prior to the decision of the three judge Bench in FCI to which we have made a

reference earlier. The High Court has granted protection to the first respondent purely

on the basis of the Full Bench judgment in Arun Sonone, which has specifically been

overruled by this Court.

12

18 In the circumstances, we allow the appeal and set aside the impugned judgment

and order of the High Court dated 11 July 2016. In consequence, the Writ Petition filed

by the first respondent shall stand dismissed. There shall be no order as to costs.

………………………….……………………..J.

[Dr Dhananjaya Y Chandrachud]

…..…..…….………..……………….………..J.

[K M Joseph]

New Delhi;

January 27, 2020



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