A.P. Bhangale, J.
1. Rule returnable forthwith. Heard finally with the consent of the learned Counsel for the respective parties.
2. The petitioner has questioned sustainability of the impugned order, dated 15th March, 2013 passed by the Office of the Divisional Commissioner, Amravati Camp whereby the Assistant Commissioner (Backward Class Section, Amravati) communicated that the services of the petitioner cannot be protected in view of Section 10 (1) of the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 and also under the Government decision, dt.24.6.2004. The roster was directed to be prepared accordingly.
3. The facts are that the petitioner claimed that she belonged to âDhangar Caste. The Government of Maharashtra vide Government Resolutions dt. 13.10.1997, 17.1.1990 and 25.1.1990 changed the social status of Dhangar as âDhanawar notified as Nomadic Tribe. (Nomadic tribe (c) at Sr. No. 29 under the Governments Resolution dt.6.8.1992). It is case of the petitioner that, on or about 3.7.1995, respondent no.2/Trust had issued an advertisement calling upon the applications for the post of Assistant teacher in respondent no.3âs Junior College. The petitioner who had qualification as M.A., B.Ed. applied for the said post. On 18.7.1995, the petitioner was appointed as an Assistant teacher. In 1996, the Deputy Director of Education approved her appointment. The petitioner had completed probation and thus, became a permanent employee.
4. The petitioner claimed that, respondent no.1, in consequence to the approval, had approved interchange of the roster point upon the roster submitted and on 16.8.2012, respondent no.3/Headmaster had submitted Caste claim of the petitioner to the Divisional Caste Certificate Scrutiny Committee No.1, Amravati Division, Amravati. The petitioner moved her representation for not taking any adverse action against her since her caste claim is pending.
5. Respondent no.2, however, terminated the services of the petitioner. According to the petitioner, there is a post vacant for VJ/NT category for the petitioner to work. On no.2 has already submitted proposal to absorb the petitioner.
6. It is settled principle of law that if the appointment is meant for the reserved category it cannot be converted into an open category unless permitted by the Rules applicable. In the institutions which are aided and are under the control of the State or Statutory bodies, Constitutional doctrine of equality and non-discrimination must be respected as mandated by Articles 14 and 16 of the Constitution of India. The question is about protection of services of the person who claimed as belonging to Nomadic Tribe at the time of recruitment/appointment and succeeded continuing to serve, although, in fact, such person could not have claimed the benefit of reservation. Protection can be granted if appointee has right to the employment under the relevant rules and after a proper competition amongst qualified persons, after due process of selection under relevant rules vide ruling in the case of State of Bihar vs. Upendrasingh, (2009) 5 SCC 65. When recruitment rules are made, the employer is bound to comply with the same. The appointment in violation of the rules is nullity as the appointment cannot be through the back door. Articles 15 and 16 of the Constitution of India have objectives to ensure that benefit shall be granted to genuine SC/ST persons with utmost expedition and promptitude. Those who are entitled to benefit of reservations are also entitled for fair and efficient process to obtain certification or verification; adjudication with reasonable dispatch. Fairness contemplates that the claimant shall not be subjected to cumbersome; tardy; harassing process.
7. Article 16 of the Constitution of India contemplates that appointment to public post/Office shall be by open advertisement to enable all eligible persons to compete for selection on merit. Article 14 of the Constitution of India contemplates that if illegality has been committed in favour of any individual or group or wrong order has been passed by judicial forum, others cannot invoke jurisdiction of higher or Superior Court for repeating or multiplying the same irregularity/illegality or for passing wrong order.
8. Under Article 342 of the Constitution of India, the President of India is empowered to specify S.T. (notified) vide Constitution (ST) Order, 1950. The entries have to be taken as they stand (appear). No evidence can be led to interpret or explain those entries. Synonimity is no excuse. Not permissible for State Government/Court to modify; amend; alter entries as they are to be read as they are. No inquiry at all is permissible and no evidence can be let in; to find out and decide if any tribe/community or part of group within community is included within scope and meaning of entry concerned in presidential order when it is not so expressly or specifically included. S.T. order must be read as it is, can be amended only by the Parliament. It is not open for State/Court/Tribunal/or any Authority to amend/alter/modify the list of ST specified under Article 342(1). In Maharashtra, we find the tribals and nonâtribals classified as below:
| Tribal | Nontribals |
| 1. Mahadeo KoliTokre Koli Malhar Koli | Koli, Son, Suryavanshi, Vaiti Koli |
| 2. Dhanwar (emphasis ours) | Dhangar. (emphasis ours) |
| 3.Thakur/ThakarKathakur/Thakar Ma Thakur/Thakar | Thakur, Bhat, Brahmabhat, Kshatriya; Rajput, Sindhi, Maratha, Pardeshi, Thakar. |
| 4. Gond Gawari | Gowari. |
| 5. Mannewarls | Munnurwar/Mannewar/Munnarwar. |
| 6. Halba/Halbi | Koshti/Halba Koshti. |
(i) Caste Certificate issued by the Competent Authority/Appellate Authority).
(ii) Verification thereof. Genuineness is verified upon documentary material, information, evidence.
Scrutiny Committee must examine entire body of evidence including as to whether applicant has satisfied affinity test. The procedure as prescribed involves :
1. Application for issuance of Caste Certificate.
2. Competent Authority to issue/reject Certificate subject to verification.
3. Appeal against rejection u/s.4. 4. Verification of Caste Certificate by Committee.
5. Inquiry by Committee may cancel/confiscate Certificate, if fraudulently obtained.
10. Verification of Scheduled Tribe (ST) involves examination of birth, School records, Affinity of candidate with S.T. designated, Anthropological and Ethnological traits, affinity with ST concerned must be established. Rituals; customs worship, ceremonies associated with birth, marriage, death, conventions to dispose of dead body. Affinity test is a process to identify customs and rituals of the applicant and his kinship/close relatives to know whether the applicant is a genuine member of S.T. The applicant must be demonstrably a member of Tribe. A Tribe which is not specifically named as S.T. cannot lay claim to inclusion on the basis of nomenclature; similarity or by contending that Tribe is subsumed within designated S.T. Genuine person alone shall obtain benefit of reservation. False and fraudulent claim shall be discouraged. Object of inquiry/verification is to prevent fraud on the constitution by making spurious claim as belonging to SC/ST to obtain benefit of the reservation. Mere fact that claimant's surname is synonymous with the name of designated tribe is not sufficient to establish that he/she belongs to S.T. The Claimant must demonstrate his membership with S.T. designated. At the same time, absence of documentary evidence does not ipso facto result in invalidation of claim when the claim is scrutinized on the basis of all the material available; including affinity established to a Tribe.
11. Onus is upon the claimant. If claimant has established affinity in part, it is for the Competent Authority/Caste/Tribe Scrutiny Committee to determine in each case whether upon considering entire material on record, claim is correct and genuine. Answer in the abstract cannot be furnished and the order must be reasoned order. Burden of proof is on the claimant to prove his status as tribal or nontribal.
Vigilance Cell report can only assist the Caste Scrutiny Committee to arrive at a decision. Delay does not validate appointment which was conceived in deceit. Foundation of appointment vanishes and it is rendered illegal. Followed State and Others .vs. Ravi Prakash Babulalsing Parmar and another, 2007 (1) Bom. C.R.(SC) 102, (2007) 1 SCC 80. AIR 2007 SC 295 Ashok Bhaskar Chaulkar vs. Central Bank of India and Others, 2009(3) BCR 172.
12. Unverified claims of imposters must be nipped in bud (State vs. Milind and Others, (2001) 1 SCC 4, 2009(3) Mh.L.J. 995 (Full Bench comprising of Swatanter Kumar, C.J. and V.C.Daga, J and Dr.D.Y.Chandrachud, J). But Pseudotribalisation attempts by communities which do not have genuine affinity to S.T. must be discouraged. Because of the false caste claims of S.T./S.C. benefits are frittered away to non-tribals, in the result genuine member of the Scheduled Tribe is deprived of benefit. Equity, sympathy or generosity has no place where original appointment rests upon false Caste Certificate. Such person deprives genuine candidates of benefit. Court would not be justified to exercise equity jurisdiction in favour of any such candidate, therefore, deliberate deception and fraud need to be penalised by nibbling it in the bud itself. Once fraud is proved, it will deprive the person of all advantages/benefits obtained thereby. Delay in detection or taking action will raise no equities. Fraud unravels everything. Suppression of material documents amounts to fraud on Court. Justice Kuldip Singh, J in S.P Chengalvaraya Naidu (Dead) by L.Rs. vs Jagannath (Dead) by L.Rs. and Others reported in AIR 1994 SC 853 observed that, âthe Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
13. Thus, normal rule is to withdraw benefits granted based upon false Certificate, e.g. the consequence may be to debar student from admission/discharge an employee from employment Vijay Kumar s/o. Madhukar Ingle .vs. Caste Scrutiny Committee, Amravati and Others, (2007 (6) Mh.L.J. 36. In the ruling in M. P. State Co-operative Bank Ltd., Bhopal vs. Nanuram Yadav and Others reported in (2007) 8 SCC 264, the principles were summarised as under:
â24) It is clear that in the matter of public appointments, the following principles are to be followed:
1) The appointments made without following the appropriate procedure under the Rules/Government Circulars and without advertisement or inviting applications from the open market would amount to breach of Arts. 14 and 16 of the Constitution of India.
2) Regularisation cannot be a mode of appointment.
3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.
4) Those who come by back door should go through that door.
5) No regularization is permissible in exercise of the statutory power conferred under Art. 162 of the Constitution of India if the appointments have been made in contravention of the statutory Rules.
6) The Court should not exercise its jurisdiction on misplaced sympathy.
7) If the mischief played so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.â
An attempt to induct an employee without following the due procedure is the back door appointment which is deprecable as illegal. Such appointment cannot be regularised if one can smell a rat in it. In Sanjeev G.Devre and Others V/s.State of Maharashtra and Others, 2004 (1) ALL M.R. 75, it is held that the recourse to the proceedings under Article 226 of the Constitution of India is permissible even if the alternate remedy is available, as the Respondent No.11 (in that case) has fraudulently procured caste certificates as also the certificate of validity.
14. Keeping in mind the above-mentioned principles, we have to consider whether the appointment was made in accordance with the Rules applicable by following the due procedure? When answer is in the negative the service cannot be protected emphatically so when it was prima facie obtained on the weak, wicked or rotten plank of falsehood /fraud.
15. Appointment dated 18.7.1995 as an Assistant teacher in Junior College was on probation for two years subject to the approval by the Deputy Director of the Education, Amravati. Conditional approval was granted in 1996 directing the Management of College to attempt searching to recruit the backward Class candidates so as to fill the backlog. Persons belonging to 'Dhangar' Community spending half of their time for wandering and taming sheeps were to be considered as belonging to Nomadic Tribes vide Government Resolution No.CBC 1089/203/Mavak-5, dt.17.1.1990. Divisional Caste Commissioner, Amravati Camp whereby Assistant Commissioner (Backward Class Section, Amravati) communicated that the services of the petitioner cannot be protected in view of Section 10 (1) of the Maharashtra Scheduled Caste, Scheduled Tribes, Nomadic Caste, Tribes, Special Backward Community Caste Validity Certificate Act, 2000 and also under the Government decision dt. 24.6.2004. Roster was directed to be prepared accordingly. The petitioner had claimed as belonging to âDhanvarâ Scheduled Tribe. Certificate produced was dt.2.7.1983, by suppressing the facts that she is, in fact, belonging to Nomadic Tribe. Roster meant for the reservation of the candidate of the Scheduled Tribe cannot be changed to the roster for the Nomadic Tribe.
16. In view of the above discussion as to the legal position and considering seriousness of the allegations and the effects entailing from the order passed as the Divisional Commissioner Office has already conducted an inquiry in relation to this matter and the only grievance of the petitioner is that there has been non-compliance with the principles of natural justice and the impugned order was passed without hearing the petitioner without allowing her to put forward her case, the Authority concerned proceeded to pass the impugned order. It is the fact that the application for inter-change of the point exhausted by the petitioner filed by he, was not decided by any competent Authority after giving the opportunity of hearing and hence, we direct that before submission of any report by the Secretary, Bharatiya Shikshan Mandal, Murtizapur, District Akola, petitioners application must be disposed of and the petitioner must be given a fair opportunity of hearing and to cross-examine the witnesses, if any, examined before the competent Authority constituted under the Act and Rules framed thereunder. The impugned order, thus, is set aside.
We further direct the competent Authority constituted for the purpose to pass appropriate reasoned order in accordance with law and communicate the same to the petitioner in writing by registered Post A.D. and under Certificate of Posting to her residential address. The decision by the competent Authority/preferably by the Scrutiny Committee constituted under the Rules framed under the Act and Rules consisting the Divisional Commissioner etc., its Officials in Amravati Division through its backward Class section be taken expeditiously, preferably within four months from the date of the communication of this order.
The final decision taken by the Scrutiny Committee be acted upon by the State Government.
Rule is made absolute accordingly in the above terms.