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Saturday, August 11, 2012

a ‘Koshti’ by Caste and not a ‘Halba’The Committee in turn had declared that the appellant was a ‘Koshti’ by Caste and not a ‘Halba’ which is a notified Scheduled Tribe. 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. 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. 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 needful within a month from the date of this order. The parties are left to bear their own costs.


                                                   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 20th February,  2008  passed  by  the  Scheduled  Tribe
Certificate  Scrutiny  Committee,  Amravati.   The  Committee  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
20th 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
1st 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  12th  July,
1996. It is not in dispute 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 23rd February, 2008 whereby  the  services  of
the appellant were terminated with immediate effect. The  termination  Order
said:

         “……..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  25th  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 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 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  10th  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.

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
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,  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
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.   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-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
         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 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 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 12th 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. 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.  Milind1and  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 15th 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 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 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 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.”




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 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