CHAIRMAN AND MANAGING DIRECTOR FCI AND ORS. v. JAGDISH BALARAM BAHIRA AND ORS.

The Judgment of the Court was delivered by c DR. D. Y. CHANDRACHUD, J. I. Delay condoned in SLP (C) ...... CC No.1088912015.

2Copy pinpoint2. Leave granted in the Special Leave Petitions. A The perspective D

3Copy pinpoint3. The framers of the Constitution conceived of a policy of affirmative action to redress the social exclusion, economic deprivation and political alienation suffered by historically disadvantaged classes of Indian society. Reservation of posts in public employment and seats for admission in educational institutions and the setting apart of seats in electoral bodies was envisaged by the Constitution for the fulfilment of a E constitutional aspiration of social justice to the Scheduled Castes and Tribes and to socially and educationally backward classes of citizens. Jn pursuit of the constitutional goal of substantive equality, reservations have been envisaged as a means of enabling members of beneficiary groups to realise, in a true sense, dignity, freedom and liberty which the F Constitution guarantees as its basic philosophy. But the problem which has confronted legislatures, policy makers as well as courts (as enforcers of the rule of law) is a capture of the benefits of affirmative action programmes by persons who do not genuinely belong to the beneficiary groups. This kind of capture poses a serious dimension. When a person who docs not belong to a caste, tribe or class for whom reservation is G meant, seeks to pass off as its member, such a stratagem constitutes a fraud on the Constitution. For one thing a person who is disentitled to the benefit of a welfare measure obtains the benefit. For another.this deprives a beneficiary who is genuinely entitled to receive those benefits of a

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A legitimate entitlement. This constitutes an egregious constitutional fraud. It is a fraud on the statutes which implement the provisions of the Constitution. It is a fraud on state policy. Confronted with this problem. the legislatures have intervened with statutory instruments while the executive has, in implementation of law, set down administrative parameters and guidelines to prevent the usurpation of benefits. B

4Copy pinpoint4. The batch of cases with which the court is confronted involves individuals who soµght the benefit of public employment on the basis of a claim to belong to a beneficiary group which has, upon investigation been fow1d to be invalid. Despite the invalidation of the claim to belong to a Scheduled Caste or, as the case may be, a Scheduled Tribe or c backward community, the intervention of the Court is invoked in the exercise of the power of judicial review. The basis for the invocation of jurisdiction lies in an assertion that equities arise upon a lapse of time and tllese equities arc capable of being protected citllcr by the High Court (in the exer¢ise of its jurisdiction under Article 226) or by this D Court (when it discharges the constitutional function of doing complete justice under Article 142). The present batch of cases then raises the fundamental issue as to whether such equities are sustainable at law and, if so, the limils that define the jurisdiction of the court to protect individuals who have secured access to the benefit of reservation inspite of the fact that they do not belong to the caste, tribe or class for whom reservation is intended.

5Copy pinpoint5. A large body of precedent has evolved both in the High Courts as well as in this Court in seeking to find answers to pleas raised by individuals that they are entitled to protection by a constitutional court, even after the invalidation of their caste or tribe claims. The decided cases reflect a profound awareness on the part of courts of the human element involved. Assessment of human consequences case by case has resulted in a conflicting line of approach, in the effort of the court to balance the letter Of law with a sense of compassion. Since this Bench of three Judges is called upon to seek a median, through the body of judicial precedent, it is, at the outset, necessary to set out the fundamental values and vision which the cou11 must pw·sue. Those values as well as the vision is charted out to the court by the Constitution and it is the Constitution which the court expowids. The constitutional policy of creating reservations subserves a high constitutional value of providing

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BALARAM BAHIRA [DR. D. Y. CHANDRACHUD, J.]

social redress and a life of dignity to castes, tribes and classes which A were in a historical sense oppressed by a systemic pattern of social exclusion and human deprivation. The benefits which the Constitution has conferred on beneficiary groups cannot be dissipated by allowing others who do not belong to the designated castes or tribes to secure the benefit. Public employment is a significant source of social mobility. B Access to education opens the doors to secure futures. As a matter of principle, in the exercise of its constitutional jurisdiction, the court must weigh against an interpretation which will protect unjust claims over the just, fraud over legality and expediency over principle. As the nation evolves, the role of the court must be as an institution which abides by constitutional principle, enforces the rule oflaw and reaffirms the belief that claims based upon fraud, expediency and subterfuge will not be recognised. Once these parameters are established with a clear judicial formulation individual cases should pose no problem. Usurpation of constitutional benefits by persons who are not entitled to them must be answered by the court in the only way permissible for an institution which has to uphold the rule of law. Unless the courts were to do so, it would leave open a path of incentives for claims based on fraud to survive legal gambits and the creativity of the disingenuous. B The regulatory regime : Madhuri Patil

6Copy pinpoint6. On 24 February 1981, the Government of Maharashtra issued E a G.R. which prescribed the procedure for obtaining (i)castc certificates from the Sub-divisional Officers; and (ii) validity certificates from a Scrutiny Committee.

7Copy pinpoint7. In 1994, the systemic usurpation of benefits by persons who did not belong to the beneficia1y groups came to the fore before this F Court. There was before this Court, an urgent need expressed to set down a framework to regulate the grant of caste certificates and to scrutinise claims. The need for scrutiny and verification of caste claims was addressed in a judgment of this Court, speaking through a bench of two judges, in Kumari Madhurl Patil Vs. Additional Commissioner, Tribal Development 1• The judgment was delivered on 2 September G

1994. While emphasizing the need to ensure that claims to belong to a beneficiary group must be carefully scrutinized, this Court observed thus: " ... 13. The admission wrongly gained or appointment wrongly '(1994) 6 sec z41 H

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A obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the constitution. The genuine candidate~ are also denied admission to educational institutions or appointments to office or posts under a State for want of social B status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquires by the Scrutiny Committee .... " (Id. at p. 254)

8Copy pinpoint8. Detailed guidelines were formulated in the judgment of this c Court for the constitution of committees by the State Governments for scrutinizing claims of candidates to belong to a Scheduled caste or tribe or, as the case may be, to a backward community designated for reservations. The directions issued by this Court envisaged the constitution ofVigilance Cells which would conduct local enquiries to determine the authenticity of a claim to belong to a designated caste or tribe. The court, among other things, issued the following directions: "13 ...... (14). In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be' prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament; ( 15). As soon as the finding is recorded by the Scrutiny Committee F holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by rcgistcrcd,post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the G appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post." (Id. at p. 256- 257)

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BALARAM BAHIRA [DR. D. Y. CHANDRACHUD, J.]

C The Halba I Halbi controversy A

9Copy pinpoint9. The Constitution (Scheduled Castes) Order 1950 and the Constitution (Scheduled Tribes) Order 1950 provide in relation to each State a list of Scheduled Castes and Scheduled Tribes for the purpose of constitutional reservations. In the list of Scheduled Tribes for the State of Maharashtra, Entry 19 is: B "Haiba, Halbi"

10Copy pinpoint10. In the State of Maharashtra, the ambit of Entry 19 became a bone of contention particularly with persons belonging to the Halba- Koshti community claiming to be a sub-tribe of the designated tribe. A Division Bench of the High Court spoke on the issue on 4 September C 1985 in Milind Sharad Katwarc Vs. State of Maharashtra'. The Division Bench held that Halba-Koshti constituted a sub-division of the tribe "Halba-Halbi" under Entry 19 of the Scheduled Tribes Order, 1950. Halba-Koshtis were, in the view of the Division Bench, entitled to the status of a Scheduled Tribe on the ground that they were comprehended within a designated tribe namely, Halba-Halbi. In coming to this conclusion, D the Di vision Bench opined that it is permissible to enquire whether a sub-division of a tribe which is not mentioned in the Scheduled Tribes Order, 1950 is nevertheless a part and parcel of a tribe which is designated.

11Copy pinpoint11. Upon a challenge by the State of Maharashtra before this E Court, the issue wa~ referred to a Constitution Bench and eventually resulted in the judgment in State of Maharashtra Vs. Milind 3 • The Constitution Bench held that the Scheduled Tribes Order had to be read as it is; and no evidence could be let in to urge that a tribe or tribal community or its part constituted a part of a tribe which was specifically designated. In other words : F "36 ... ( 1). It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, G 1950. (2). The Scheduled Tribes Order must be read as it is. It is not even permissible Iv say that a tribe, sub-tribe, part of or group of '(1986) t Born CR 403 3 (2001) l SCC4 H

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A any tribe or tribal community is synonymous to the one mentioned m the Scheduled Tribes Order if they are not so specifically mentioned in it. (3).A notification issued under clause (I) ofArticle 342, specifying Scheduled Tribes, can be amended only by law to be made by B Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause ( 1) of Article 342 only by Parliament by law and by no other authority. (4). It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled c Tribes specified i.n the notification issued under clause (I) ofArticle 342." (Id at p. 30-31) The judgment of the Bombay High Court holding that Halba-Koshti formed a part of the designated scheduled tribe, Halba-Halbi was reversed. The declaration oflaw by this Court under Article 141, negated the position oflaw enunciated by the Bombay High Court. This was, it must be emphasised, not a case of prospective over-ruling.

12Copy pinpoint12. The Constitution Bench in Milind dwelt on the dangers in allowing benefits which are reserved to designated castes and tribes being usurped by individuals who do not belong to them. Allowing the benefits which are reserved by Presidential orders issued under Articles 341 and 342 to be usurped by an imposter would negate the purpose of the reservation. This was succinctly emphasized in the following observations of the Constitution Bench: "35 .... The Presidential Orders are issued under Articles 341 and F 342 of the Constitution recognizing and identifying the needy and deserving people belonging to Scheduled Castes and Scheduled Tribes mentioned therein for the constitutional purpose of availing benefits of reservation in the matters of admissions and employment. If these benefits arc taken away by those for whom they are not meant, the people for whom they are really meant or G intended will be deprived of the same and their sufferings will continue. Allowing the candidates not belonging to Scheduled tribes to have the benefits or advantage of reservation either in admissions or appointments leads to making mockery of the very reservation against the mandate and the scheme of the Constitution." H (id. alp. 30)

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BALARAM BAHIRA [DR. D. Y. CHANDRACHUD, J.]

13Copy pinpoint13. Milind Sharad Katwarc whose cause had travelled from A the Bombay High Court in 1985 to this Court had, by the time that the Constitution Bench resolved the issue on 28 November 2000 qualified as a doctor. He claimed the benefit of equities which had intervened in the meantime. They were recognized in the ultimate directions which were issued by this Court in the following observations: B "38. Respondent 1 joined the medical course for the year 1985-

86. Almost 15 years have passed by now. We are told he has already completed the course and may be he is practicing as a doctor. In this view and at this length of time it is for nobody's benefit to annul his admission. Huge amount is spent on each candidate for completion of medical course. No doubt, one c Scheduled Tribe candidate was deprived ofjoining medical course by the admission given to Respondent 1. If any action is taken against Respondent I, it may lead to depriving the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect the degree obtained by him and his practicing as a doctor. 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 Cowt in SLP (C) No. 16372of1985 and other related matters, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment." (Id. at p. 31) The latter part of the above extract covered other cases before the court. Reading these observations there can be no manner of doubt that this Court took recourse to its constitutional power under Article 142 to protect benefits which had accrued to a candidate who had qualified as a doctor though with the caveat that he would not be entitled to claim the status of belonging to a Scheduled tribe in the futw·c. The latter part protected, having regard to the passage of time and interim orders passed in the batch of cases, appointments and admissions which had become final. These directions were evidently under Article 142 of the Constitution. H

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A D The legislation in Maharashtra

14Copy pinpoint14. The legislature in the State of Maharashtra enacted the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (VimuktaJatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste B Certificate Act, 2000. The legislation essentially takes care, for that state of the concerns that were expressed in the decision of this Court in Madhuri Patil by providing a statutory framework to regulate the issuance of caste certificates, scrutiny and verification of claims and the consequences to ensue upon the invalidation of a claim. The legislation received the assent of the President and was published in the gazette on c 23 May 200 l. By a. notification dated 17 October 200 I, the Act came into force from 18 October 2001, in terms of Section I (2). Section 3 requires every person claiming to belong to a Scheduled caste or tribe, other backward class or a.ny other designated tribe or community seeking to obtain public employment or an admission to an educational institution or contesting an electoral scat in a local authority or a co-operative society to apply for tho issuance ofa caste certificate to a competent authority named by the State Government. Section 4 empowers the competent authority to issue a ca~tc certificate upon being satisfied of the genuineness of the claim. Section 6 requires the State Government to constitute Scrntiny Committees for the verification of caste certificates issued by the competent authorities constituted under Section 4(1 ). Sub-Section (2) of Section 6 reqlllircs the beneficiary ofa caste certificate to submit an application to a Scrutiny Committee for the verification of the caste certificate and for issuance of a validity certificate. The appointing author~ty is similarly required by sub-Section (3) to make an application to the Scrutiny Committee to verify the caste certificate. Section 6 provides thus: "6. (I) The Government shall constitute by notification in the official Gazette, one or more Scrutiny Committee(s) for verification of Caste Certificates issued by the Competent Authorities under sub- G section ( 1) of section 4 specifying in the said notification the functions a.nd the area of jurisdiction of each of such Scrutiny Committee or Committees. (2) After obtaining the Caste Certificate from the Competent Authority, any person desirous of availing of the benefits or H

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BALARAM BAHIRA [DR. D. Y. CHANDRACHUD, J.]

concessions provided to the Scheduled Castes, Scheduled Tribes, A De-notified Tribe (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for the purposes mentioned in section 3 may make an application, well in time, in such form and in such manner as may be prescribed, to the concerned Scrutiny Committee for the verification of such Caste B Certificate and issue of a validity certificate. (3) The appointing authority of the Central or State Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions shall, make an application in such form and in such manner as may be prescribed by the Scrutiny Committees for the verification c of the Caste Certificate and issue of a validity certificate, in case a person selected for an appointment with the Government, local authority, public sector undertakings, educational institutions, Co- operative societies or any other Government aided institutions who has not obtain such certificate. D (4) The Scrutiny Committee shall follow such procedure for verification of the Caste Certificate and adhere to the time limit for verification and grant of validity certificate, as prescribed.'" Section 7 provides for the confiscation and cancellation of "false certificates". Section 7 is in the following terms : E

"7. ( 1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any (2) The order passed by the Scrutiny Committee under this Act H

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A shall be final and shall not be challenged before any authority or cowt except the High Court under Article 226 of the Constitution of India." Section 8 relates to the burden of proof and envisages that in any application for the issuance of a caste certificate by the competent B authority; in any enquiry conducted by the competent authority or Scrutiny Committee or appellate authority; and in the trial of any offence under the Act, the buO}en of proving that the person belongs to such caste, tribe or class shaill be on the claimant - applicant. Section 10 provides for the consequence of the invalidation of a caste certificate and reads thus: c "'10. (!)Whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other backward Classes or Special Backward Category secures admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or secures any appointment in the Government, local D authority or in any other Company or Corporation, owned or controlled by the Government or in any Government aided institution or Co-opcrati ve Society against a post reserved for such Castes, Tribes or Classes by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, E be liable to be debarred from the concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed or derived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith.

F (2) Any amount paid to such person by the Government or any other agency by way of scholarship, grant, allowance or other financial benefit shall be recovered from such person as an arrears of land revenue. (3) Notwithstanding anything contained in any Act for the time G being in force, any Degree, Diploma or any other educational qualification acquired by such person after securing admission in any educational institution on the basis ofa Caste Certificate which is subsequently proved to be false shall also stand cancelled, on cancellation of such Caste Certificate, by the Scrutiny Conunittee. (4) Notwithstanding anything contained in any law for the time H

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being in force, a person shall be disqualified for being a member A of any statutory body if he has contested the election for local authority, co-operative society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, De- notified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward Classes or Special Backward Category by procuring a false Caste B Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall he deemed to have been terminated retrospectively." Section 11 deals with offences and penalties and provides thus : c "I !.{I) Whoever, - (a) obtains a false Caste Ce11ificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or D (b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for such Castes, Tribes, or Classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institu1ion against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Co-operative Society against the office, reserved for such Castes Tribes or Classes by producing a false Caste Certificate; Shall, on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees or both. G (2) No court shall take cognizance ofan offence punishable under this section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorized by the Scrutiny Coinmittee for this purpose." H

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A Offences punishable under Section l l have been made cognizable and non bailable under Section 12. Section 13 imposes cnminal penalties upon a person dis¢hargmg the functions of a competent authority who intentionally issu~s a false caste certificate.

15Copy pinpoint15. Legislative intervcntwn in the State of Maharashtra by the B enactment of 2000 puts into place a statutory framework covering the area from the issuance of caste I tribe certificates and traversing the scrutiny and verification of caste I tribe claims and withdrawal ofbenefits accruing upon a false claim. Stringent penalties are provided against violators by creating a regime of criminal offences which are punishable at law. An application for a caste certificate is required to be made to a c designated authority constituted by the State Government. The competent authority has to be satisfied about the genuineness of the claim before it issues a caste certificate. Issuance of a caste certificate docs not in itself conclude the level of scrutiny. The next stage of scrutiny is contemplated before the Scrutiny Committee which is conferred with a D statutory status by the provisions of the Act. Section 6 mandates in sub- section (2) that a person who desires to avail of a benefit or concession provided to a desi~natcd caste, tribe orclass must make an application well in time to tl1e Scrutiny Committee for verification of the caste certificate and for the issuance ofa validity ce11ificatc. Not only this, the appointing authority is obligated to move the Scrutiny Committee to conduct a verification of the caste certificate ofa person who has been selected for appointment. Section 7 empowers the Scrutiny Committee either suo mow or otherwise to enquire into the correctness of a caste certificate and, if it is of the opinion that the ce11ificatc was obtained fraudulently. it shall cancel and confiscate it after furnishing a reasonable opportunity to be heard. Section 7 operates in respect of all caste certificates whether obtained before or after the commencement of the Act. If a caste certificate has been obtained falsely by a person either claiming himself or his children to belong to a designated caste, tribe or class, the Scrutiny Committee is empowered to cancel it upon an opinion formed that it was obtained fraudulently. The fact that a person belongs to a designated caste, tribe or class is based on facts which are to the knowledge of the applicant and hence the burden of proof is placed on the claimant by Section 8.

16Copy pinpoint16. The sta(c legislature was evidently not content with a mere invalidation of a caste certificate which is founded on a false claim made by a candidate to belong to a designated caste, tribe or class. Section 6

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(2) provides that a candidate who desires to obtain a benefit must apply A well in time to the Scrutiny Committee for verification and similarly the appointing authority of a candidate who has been selected for appointment but has not obtained a validity certificate must apply to the Scrutiny Committee for verification. The legislature however was cognizant of the fact that by the time a scrutiny takes place before the Scrutiny B Committee the candidate may have obtained the benefit of a concession reserved for a caste, tribe or class. As a matter of public interest, the legislation stipulates that the benefits which have been obtained on the basis of a false caste certificate shall be withdrawn upon the invalidation of the claim by the Scrutiny Committee. The ambit of Section I 0 (I) extends, among other things, to an admission which is secured in an c educational institution against a scat reserved for one of the designated castes, tribes or classes; an appointment in the government, local authority or corporation owned or controlled by the government or any government institution or co-operative society against a reserved post. A benefit which is obtained on the foundation of a false caste claim which has been D invalidated is not permitted to be retained by the candidate. There is a legislative mandate that the benefit of an admission granted or an appointment to a post shall be withdrawn forthwith on the cancellation of a caste I tr.ibc certificate. Any amount which is paid by way of scholarship. grant, allowance or financial benefits has to be recovered as arrears of land revenue. Sub-Section (3) of Section 10 contains a E 11011-obsta11te provision as a result of which notwithstanding anything contained in any Act for the time being in force a degree, diploma or educational qualification acquired by a person after securing admission on the basis of a caste certificate which is proved to be false and is cancelled would also be invalid. Similarly, by sub-Section (4) a F disqualification from holding an electoral office has been stipulated where a person has contested an election on the basis of a false caste certificate which is since cancelled by the Scrutiny Committee. To ensure that the stringent provisions made by it impose a sufficient deterrent, the legislature considered it fit in its wisdom to create offences and to impose criminal penalties in Section 11. G

17Copy pinpoint17. The consequences which emanate from the cancellation of a caste certificate are distinct. The first is the withdrawal of benefits secured on the basis of a claim to belong to a designated tribe, group or class which has been held to be invalid. This is of a civil nature by which the applicant is deprived of the benefits of a false caste certificate which H

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A is cancelled by the Scrutiny Committee. The second consequence is the liability to be subject to a criminal prosecution. This is a criminal liability arising from an offence created by the legislature. E Prec<•dent

18Copy pinpoint18. Several decisions of this Court have considered whether a B person who has secured the benefit of public employment or admission to an educational institution on a reserved quota is entitled to retain the benefits obtained despite the invalidation of the claim to belong to the tribe or caste. In all such cases, equities arc pressed in aid, chief among them being the lapse of time since the acquisition ofbenefits on the basis c of a claim to belong to a designated caste or tribe. As decided cases indicate, the claim for equity is coupled with a "voluntary" undertaking that the person would not secure or claim any future benefits on the basis that he or she belongs to the Scheduled Caste, Schedule Tribe or socially and educationally backward class on the basis of which the original appointment or admission was obtained. In the case of ad.missions D to educational institutions, particularly institutions of higher learning, the additional ground which is often urged is that the withdrawal of benefits obtained in the past would a.mount to a societal loss since scarce productive resources of the nµtion are invested in providing for training and education to professionals ip a discipline such as .medicine.

19Copy pinpoint19. ln Ma~huri Patil (supra), a Bench of two learned Judges set down a principlecll rationale as to why a claim for equity by a person who is not found to belong to the designated caste, tribe or class cannot be countenanced. The Court observed : "16. Whether appellants are entitled to their further continuance F in the studies is the further question. Otten the plea of equities or promissory estoppel would be put forth for continuance and completion offurther course of studies and usually would be found favour with the courts. The courts have constitutional duty and responsibility, in exercise of the power of its judicial review, to see that constitutional goals set down in the Preamble, the Fundamental G Rights and the Directive Principles of the Constitution, are achieved. A party that seeks equity, must co.me with clean hands. He who co.mes to the court with false claim, cannot plead equity nor the court would be justified to exercise equity jurisdiction in his favour. There is no estoppel as no promise of the social status H

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is made by the State when a false plea was put forth for the social status recognised and declared by the Presidential Order under the Constitution as amended by the SC & ST (Amendment) Act, 1976, which is later found to be false. Therefore, the plea of promissory cstoppel or equity have no application. When it is found to be a case of fraud played by the concerned, no sympathy and equitable considerations can come to his rescue. Nor the pica of estoppel is germane to the beneficial constitutional concessions and opportunities given to the genuine tribes or castes. Courts would be circumspect and wary in considering such cases." (Id. at p. 257) However, on the facts of that case the Bench of two Judges while c upholding the cancellation of the status of Mahadeo Koli which was fraudulently obtained, directed that the student who had completed the course of medical studies be allowed to appear for the final year examination of the M.B.B.S. degree course but not as a candidate belonging to a Scheduled Tribe. The circumstance which weighed with the Court was that the student had approached the High Court for the grant of a caste certificate since the Additional Commissioner was not dealing with the matter. The student obtained admission pursuant to a direction of the High Court. It was the parents of the student who had put the career of the student in jeopardy and since she had completed her course of study except to appear for the examination; she should be permitted to do so. The above directions were issued in the case of one of the two appellants, Suchita Laxman Patil. However, her sister Madhuri (who was the first appellant) was found to have approached an officer without jurisdiction and after showing the order of the High Court in the case of her sister Suchita, secured a caste certificate and got admission. F This Court observed that though she was in the midst of her B.D.S. studies in the second year, .she could not continue as a student belonging to Mahadeo Kol i Scheduled Tribe. She could only obtain admission as a general candidate and continue her studies. These directions are referable to the jurisdiction confcn-cd on this Court under Article 142. G

20Copy pinpoint20. The next decision which is of relevance on the issue, is a judgment of three Judges of this Court in R. Vishwanatha Pillai Vs. State of Kcrala4 . In that case the appellant who did not belong to a designated reserved community obtained a caste certificate ·and was

'(2004) 2 sec 105 H

306 SUPREME COURT REPORTS [2017) 1I S.C.R.

A selected as a Deputy Superintendent of Police on a seat reserved for the Scheduled Castes. However, it was found upon a complaint that the appellant did not belong to a Scheduled Caste and the Scrutiny Committee rejected his claim. The order of the Scrutiny Committee was upheld by the High Court and by this Court. Subsequently at the behest of the appellant the Central Administrative Tribunal directed that he should not B be terminated from service without following the procedure under Article 31 l. The High Court reversed that decision and the appeilant was dismissed from service. Before this Court the appellant inter alia sought protection since he had rendered nearly 27 years of service. Rejecting the submission this Court held that: c "'15. This apatt, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken D away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the E Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste ce1tificate he cannot be considered to be a person who holds a post within the meaning ofArticlc 3 11 of the Constitution of India, Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning ofArticle 311 of the Constitution oflndia,As appellant had obtained the appointment by playing a fraud he cannot be all owed to take advantage of his own fraud in entering the service and claim that he was holder of H

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BALARAM BAHIRA [DR. D. Y. CHANDRACHUD, J.)

the post entitled to be dealt with in terms of Article 3 l l of the A Constit'ution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article ill of the Constitution is not attracted at all." (Id. at p. 115) (emphasis suppled) B The Bench of three Judges also rejected the submission that since the appellant had rendered 27 years of service. the ordcrof dismissal should be substituted with an order of compulsory retirement or removal to protect his pensionary benefits. The Court observed: "l 9 ..... The rights to salary, pension and other service benefits c are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes oflaw. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who, seeks equity must come with clean hands. He. who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favom. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms oflaw in a case where an individual acquired a status by practising fraud." (Id. at p. 116)

21Copy pinpoint21. In Bank of India Vs. Avinash D. Mandivikar' the first respondent obtained an appointment in the service of the bank in October '(2oosi 1 sec 690 H

308 SUPREME COURT REPORTS [2017] ll S.C.R.

A 1976 on a post reserved for the Scheduled Tribes. The Scrutiny Committee found that he did not belong to a Scheduled Tribe and, therefore, invalidated the caste certificate. Following the termination of his services the first respondent moved the High Court which accepted his plea that the initiation of proceedings against him by the Scrutiny Committee for verification of the caste certificate in 1987 was beyond a B reasonable period. The High Court, while allowing the pica. reinstated him in service with back-wages. In an appeal by the employer. this Court held that once a claim of the employee to belong to a Scheduled Tribe had been rejected, the employment was "no appointment in eye of law" and that he had "absolutely no justification for his claim" in c respect of the post he usurped. Distinguishing the directions issued in Milind (under Article 142). this Court held that: "JO.The protection under the Milind's case (supra) cannot be extended to the respondent No. I-employee as the protection was given under the peculiar factual background of that case. The D employee concerned was a doctor <ind had rendered long years of service. This Court noted that on a doctor public money has been spent and. therefore, it will not be desirable to deprive the society ofa doctor's service. Respondent No. I-employee in the present case is a bank employee and the factor which weighed with this Court cannot be applied to him." (Id. at p. 698) E The above observations of the court arc also an indication that para 38 of the decision in Milind was construed as consisting of directions issued under Article 141. For it was on that basis that the court in Avinash Mandivikar held that no case was made out for protecting the services of a bank employee who had obtained employment on the basis of a F false claim. Besides, this Comt also held that the first respondent having perpetrated a fraud, a claim for protection will not be legally sustainable and a person who had obtained employment by illegitimate means could not continue to enjoy the fiuits of the appointment despite the clear finding by the Scrutiny Committee that "he does not even have a shadow of a right even to be considered for appointment". This Court relied upon the G earlier decision in Vishwanatha Pillai (supra) in coming to its conclusion.

22Copy pinpoint22. Another decision of two learned Judges was in Additional General Manager/Human Resou·rccs, Bharat Heavy Electricals Ltd. Vs. Suresh Ramakrishna Burde' where a Division Bench of

H • t2001) s sec 336

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BALARAM BAHIRA [DR. D. Y. CHANDRACHUD, J.]

310 SUPREME COURT REPORTS [2017] ll S.C.R.

A Tribes Order relating 10 State of Maharashtra. even though it is not specijically mentioned as such,

8. Aller thorough discussion of the matter the conclusions of the Bench are recorded in paragraph 36 of the report. It was held that it is not at all permissible to hold any enquiry or let in any B evidence to decide or declare that any tribe or tribal community or part ofor group within any tribe or tribal community is included in the gemiral name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order,

1950. It was fmther held that the notification issued under Clause ( l) of Article 342, specifying Scheduled Tribes, can be amended c only by law to be made by Parliament and it is not open to the State Governments or courts or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause ( l) of Article 342 and the Constitution (Scheduled Tribes) Order 1950. The law declared D by the Constitution Bench docs not at all lay down that where a person secures an appointment by producing a false caste certificate, his services can be protected on his giving an undertaking that in future he will not take any advantaflie of being a member or the reserved category." (Id. at p. 340-341) (emphasis supplied) E In this view of the matter, the High Court was held to be in error in setting aside the order of termination and in directing reinstatement of the employee.

23Copy pinpoint23. ABeneh of two Judges of this Court in State of Maharashtra Vs. Sanjav K. Nimjc 7 considered a case where the respondent had been appointed to the service of the state in June l 995 on a claim that he belonged to the Halba Scheduled Tribe. The Scrutiny Committee upon verifying the caste certificate found in its order of August 1989 that the employee was a Koshti (a Special Backward Class) and not a Halba. The respondent accepted the findings of the Scrutiny Committee but on the basis of a Government Resolution dated 15 June 1995 sought the protection of his service. This Court noted that on 7 December 1994 Koshtis were declared to be a Special Backward Class. As regards the G.R. dated 15 June l 995, this Court came to the conclusion that since the respondent was appointed on 29 June 1995, which was after the '(2007) 14SCC48l H

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BALARAM BAHIRA [DR. D. Y. CHANDRACHUD, J.]

G.R., he was not entitled to protection in terms thereof. Moreover, A adverting to Section 10 of the Act enacted by the Maharashtra state legislature, this Court observed that : "16. The 2000 Act being a legislative Act would prevail over any government resolution. A government resolution may be beneficent in nature but it is well settled that a benefit B under a government resolution cannot be extended to a person who docs not satisfy the conditions precedent thereof. In any event, the effect of the judgment of this Court as aiso the provisions of a statute in the light of the constitutional provisions contained in Articles 341 and 342 of the Constitution of India cannot be diluted by reason of a C government resolution or otherwise." (Id. at p. 487) (emphasis supplied) In the view of this Court : "18. We may also notice that ordinarily a person, who has obtained appointment on the basis of a false certificate, cannot retain the said benefit. (Sec Bank oflndia v. Avinash D. Mandivikar [(2005) 7 SCC 690: 2005 SCC (L&S) 1011], Ram Saran v. JG of Police, CRPF [(2006) 2 sec 541 : 2006 sec (L&S) 351 : (2006) 2 Scale 131] and Supdt. of Post Offices v. R. Valasina Babu ((2007) 2 SCC 335] .) 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 Sandcep Subhash Parnte v. State of Maharashtra [(2006) 7 SCC 501 : (2006) 8 Scale 503] ."(Id. at p. 487) F

Finally this Court held that the provisions of Maharashtra Act XXlll of 200 l must apply. Though at one point in time indulgence had been shown to students or to persons who were found to have acted bona fide this "would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative act''. G

24Copy pinpoint24. The position in law was reaffirmed in a subsequent decision of a Bench of three Judges in Union of India Vs. Dattatray'. The respondent was appointed as an Assistant Professor of Psychiatry in a '(2008) 4 SCC612 H

312 SUPREME COt;RT REPORTS [2017] 11 S.C.R.

A government hospital on the strength of a claim to belong to a Scheduled Tribe. The Scrutiny Committee in an order of March 1999 found that the claim that he belonged to the Halba Tribe was false. The High Court upheld the invalidation of the tribe claim but held that the respondent would not be entitled to any benefit as a member of the Scheduled Tribe from the date of its decision. In consequence, the services of the B respondent were directed not to be disturbed. This Court held that the High Court had misconstrued the decision of the Constitution Bench in Milind (supra) and adverted to the peculiar circumstances in which protection was granted in that case to a student who had been admitted to a medical course over 15 years ago. Distinguishing that decision with c the case at hand this Court observed that :

"5 ... When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to scheduled caste/tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation." (Id at p. 614) (emphasis supplied)

The judgment of the High Court directing the continuance of the first respondent in service was accordingly set aside.

25Copy pinpoint25. In Yogcsh Ramchandra Naikwadi Vs. The State of Maharashtra', the direction contained in paragraph 38 of the decision of the Constitution Bench in Milind (supra) for protecting a student who had completed his medical studies, when nearly 15 years had elapsed, was held to be referable to the power conferred upon by this Court by Article 142 of the Constitution. This Court observed: "7. There may however be cases where it will not be proper to permit the student to retain the degree obtained by making a false claim. One example is where the candidates secure scats by producing forged or fake caste certificates. There may be cases, where knowing full well that they do not belong to a Scheduled Tribe/Caste, candidates may make a false claim that they belong to a Scheduled Tribe/Caste. There may also be cases where even

H '(2008J s sec 652

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