R.M. Borde, J.
1. Petitioner has approached this Court challenging Government Resolutions dated 13.6.1995 and 3.7.1995 issued by the General Administrative Department i.e. respondent No.2 granting protection to the employees who have been inducted in employment prior to 15.6.1995, from termination, although the tribe certificates secured by them for availing employment have been found to be not valid.
2. Petitioner, in nut shell objects continuance of such of the employees in employment although their claim for validation of certificates are found to be unsubstantiated and the certificates obtained by them have been declared as invalid, false or fake. The petitioner by way of amendment to the petition, is also challenging the Government resolution dated 30.6.2014 extending the benefits in employment to such categories of employees.
3. Petitioner is an Advocate by profession and is rendering services for upliftment of tribes. He is President of the Tribal Rights Protection Committee, a nongovernmental organization functioning in Dhule district.
4. The State Government having noticed that there are various cases having similar nomenclature to that of scheduled tribes, included in the Scheduled Tribes Order, however, are kept away from the benefits available to the tribes, the Government as such, issued resolution on 7.12.1994 directing inclusion of such cases under a specified category Viz. âSpecial Backward Classâ. The Special Backward Class category includes tribes like Govari, Manas, Koshti, Koli, Mannerwar etc. Those categories have been extended benefits under Government Resolution dated 7.12.1994. The State Government issued resolution on 15.6.1995 specifying therein that 2% reservation earmarked for special backward class category would be available to such of those categories in the matter of direct recruitment and for promotion. The principle of creamy layer shall not be made applicable for such category. It is also specified in Government Resolution that such of those employees who have already secured employment on the basis of a caste certificate, certifying them as belonging to ST category and such of those employees who have been promoted during the course of employment, their services shall not be dispensed with.
5. The State Government has issued another Resolution on 3.7.1995 whereunder, the decision taken by the Government on 15.6.1995 has been clarified and it has been specified that the benefits in the matter of direct employment and promotional benefits would be available to special backward class category and the principle of creamy layer shall not be applicable. Services of the employees belonging to such special backward class category, who have secured employment prior to enforcement of the resolution on the basis of a caste certificate certifying them as belonging to ST category, shall not be terminated or promotion accorded to them shall not be withdrawn until further orders. The decision taken by the Government is enforceable from 13.6.1995.
6. By virtue of Government Resolution dated 30.6.1995, it has been specified that employees not belonging to ST category, having secured employment prior to 15.6.1995 or who have been promoted, shall not be removed from employment or such employee shall not be reverted to a lower post and they shall be categorized in the category to which they belong and henceforth the benefits available to such category to which they belong shall be made available to them. Such of those posts falling vacant, shall be filled in by inducting in employment a person belonging to ST category. The aforesaid protection shall be available to the employees inducted in employment prior to 15.6.1995. The seniority of employees falling under said category, shall be considered as on 15.6.1995.
7. Petitioner contends that the State Government has extended protection by issuing Government Resolutions specified above in favour of pseudo tribes. It is contended that the benefits which are not intended for the categories of persons, are made available and thereby depriving the benefits to a category of persons namely to the persons belonging to ST category. The petitioner contends that extending such benefits to pseudo tribes is nothing but a fraud on constitution. It is canvassed that the Government Resolutions are contrary to the law laid down by the Supreme Court in case of KumariMadhuri Patil and another V/s Additional Commissioner Tribal Development and another reported in AIR 1995 SC 94.
The State Government has no authority to issue any executive instructions thereby superseding and nullifying the directives issued by the Supreme Court which is a law of land. It is further contended that the aforesaid Govt. resolutions are against public policy, since the category of persons who have played fraud and secured employment by making misrepresentation and posing themselves as persons belonging to tribes are being extended protection though they are found to be not belonging to tribal class.
8. Another ground of challenge is that the Government Resolutions are in breach of statutory provisions of Section 10 of the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimuktajatis), Nomadic Tribes And Other Backward Classes and Special Backward Classes Category (Regulation of Issuance And Verification of) Caste Certificate Act, 2000. (Herein after referred to as âThe cast Certificate Act,2000â). It is contended that Section 10 of the Act of 2000 provides for withdrawal of benefits secured by claimants on the basis of false caste certificate. Section 11 of the Act deals with Offenses and Penalties. Subsection 1 thereof provides that the persons who have obtained a false caste certificate by furnishing false information or by filing false statement of documents or by any fraudulent means or not being a person belong to any of the scheduled castes, scheduled tribes, Denotified 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 institution 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 Cooperative 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 up to two years or with fine which shall not be less than two thousand rupees, but which may extent up to twenty thousand rupees or both.
Section 11(1) relates to obtaining a false certificate and applies to all the cases wherein candidates availing benefits on the strength of false certificate. It is contended that misrepresentation itself amounts to fraud and innocent representation may also give rise to claim relief against fraud. It is contended that the word 'false' occurring in Sections 10 and 11 is used in broader sense. It is also contended by petitioner that when a person not belonging to SC or ST claims himself to be a member thereof by procuring a bogus caste certificate, would be committing fraud on the constitution and no protection to such category of persons shall be extended.
9. Petitioner, in order to substantiate contentions, has placed heavy reliance on the judgment delivered by Division Bench of this Court in the matter of NutanVidarbha Shikshan Mandal V/s Presiding Officer, School Tribunal, Amravati and others reported in 2007(2) ALL MR 60. The question that was taken up for consideration by the Division Bench was as to whether Government Resolution dated 30.6.2004 or earlier Government resolutions, issued on similar lines would over ride constitutional provisions or could avoid the consequences stipulated under sections 7 and 10 of the said Act pursuant to invalidation of the caste/tribe certificate by the scrutiny committee. Can such circulars give protection to such students and the employees in the face of the statutory provisions comprised under sections 7 and 10 of the said Act.
Our attention is invited to paragraphs No.23 and 24 of the Judgment which read as:
â23. Perusal of all those sections, it would be very clear that the word 'false' which precedes the expression 'caste/tribe certificate' has been used in broad sense. If it was confined to 'fraud' then there would have been no occasion for the legislature to qualify the said expression by the terms like âfraudulently obtainedâ, âintentionally issuedâ, 'by furnishing false information', 'by any other fraudulent means', 'provided to be false' etc. In other words, whenever the legislature expects the element of fraud to invite the consequences enumerated under the statutory provisions in case of false certificate, it has specifically qualified the said expression with the words quoted above. This clearly discloses the term 'false caste certificate' relates to that certificate which does not reveal true and real caste of the claimant. If it was to refer to a certificate obtained by playing fraud or necessarily with an intention to cause loss to somebody, then there would have been no occasion to the legislature to make separate provision in cases of false certificate being obtained fraudulently.
24. It is to be borne in mind that the provisions for reservation of seats or benefits in educational institution of seats or benefits in educational institutions for reserved category are being made in pursuance of the constitutional mandate in that regard. The Constitution endeavors for social and economic upliftment of the down trodden population of this country and social equality of status and dignity of person, by providing reservation in services of the state and in education by operation of Articles 15, 16 read with 14 of the Constitution of India, and therefore, the Apex Court clearly observed in S. Nagarajan Vs. District Collector, Salem and ors reported in 1997 (2) SCC 571 that, âit is obvious that the Constitution intended to give benefit or social and economic advancement and empowerment and social equality of status and dignity of person, by providing reservation in services of the State and in education by operation of Articles 15, 16 and 14 of the Constitution and that therefore, only the persons who are members of Scheduled Tribes and Scheduled Caste alone are entitled to that benefit. â
10. Referring to the decision in the matter of MadhuriPatil, the Division Bench has observed that before enforcement of the Act of 2000, the mandate of the Supreme Court was binding on the government. In paragraph 14 of the Judgment, it is observed thus:
â14. In case, the certificate obtained or social status claimed found to be false, the parent/guardian/the candidate should be prosecuted for making facile claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offense involving moral turpitude, disqualification for elective posts or offices under the State or Union or elections to any local body, legislature or the Parliament.â
It is thus contended by petitioner that, the Judgment in MadhuriPatil's case was delivered by the Supreme Court on 2.9.1994 and the State Government has issued resolution extending benefits to pseudo tribes since 15.6.1995 which decision, according to the petitioner, is contrary to the mandate of the Supreme Court. It is also contended by the petitioner that by issuing executive instructions, State Government cannot be permitted to nullify the effect of the directives issued by the Supreme Court which is in the nature of law laid down and applicable through out the country. It is contended that, an employee who has secured employment, on the basis of a caste certificate certifying that, he belongs to ST category, on invalidation of such certificate by the scrutiny committee, is not entitled to claim continuance in employment, since the certificate obtained by him which is the basis for his securing employment, shall be treated as false one and according to the petitioner expression 'false' which mandates expression must be used in broad scene, as has been observed by the Division Bench in the Judgment cited above.
11. The petitioner also contends that, the law is settled as regards the principle that, the statutory provisions cannot over rule Government Resolution. In order to substantiate his contention, reliance is placed on paragraph No.42 of the Judgment in the matter of Nutan Vidarbha Shikshan Mandal Vs. The Presiding Officer, School Tribunal, Amravati and others reported in 2007(2) ALL MR 60, which reads thus:
42. It is settled law that the statutory provisions cannot be overridden by the government resolution. Once the statutory provisions denies protection to unscrupulous persons, no government resolution providing protection contrary to such statutory provisions can be enforceable at law. The sphere which is covered by an Act cannot be allowed to be encroached upon by any government resolution. The law in this regard is well settled.
12. A decision in the matter of R. Vishwanatha Pillai V/s State of Kerala, reported in AIR 2004 SC 1469, has been relied upon to contend that, a person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of the Court. The principle laid down so far as the SC category is concerned, is equally applicable to all the reserve categories including Scheduled tribes.
13. In the matter of Sunil Ingle Vs. Zilla Parishad and another reported in 2009(2) ALL MR 867, the Division Bench of High Court declined to extend the benefits to the petitioner therein, on the basis of Govt. resolution dated 15.6.1995. The petitioner, therein claimed that he belonged to Mahadev Koli, ST. Ultimately, it was found that, he does not belong to said category and belongs to Koli caste, which is included in special backward classes and as such, in view of the decision taken by the Govt. the petitioner claimed benefits in the employment. In para No.2 and 3 of the Judgment, it is observed thus:
2. Perusal of the government resolution dated 15.6.1995 shows that the government has by resolution dated 7.12.1994 declared that certain castes are to be treated as Special Backward Class and for that 2% reservation is made in government/semi-government service and educational institutions. Then it is stated that the reservation to be given to the Special Backward Class shall be given for direct recruitment and also for promotion. It further states that those persons who have been appointed against seats reserved for Scheduled Tribe in government/semi-government service, if that person is found to be belonging to Special Backward Class, his services should not be terminated and he should not be reverted. After having heard the learned counsel for the petitioner we find that this government resolution which directs protection of the services of the persons belonging to Special Backward Class is invalid. It is violative of guarantee under articles 14 and 16 of the Constitution of India.
3. The petitioner was appointed admittedly against a seat reserved for Scheduled Tribe, when the petitioner did not actually belong to Scheduled Tribe. Therefore, now the services of the petitioner cannot be accommodated in the quota reserved for the Special Backward Class category. Reservation for Special Backward Category is created for the first time on 7.12.1994. The recruitment to Zilla Parishad services is governed by the rules framed under the Zilla Parishad Act. So far as the reservation to be given in service under Zilla Parishd is concerned, a provision is made in the Rules framed under the Zilla Parishad Act and therefore, reservation of seats in Zilla Parishad is occupied field, unless and until those rules are amended, no Government Resolution for reservation for Special Backward Class in Zilla Parishad Services can be issued and therefore, the government resolution dated 15.6.1995 directing accommodation of those persons against seats reserved for Special Backward Class cannot be made applicable to Zilla Parishad services. In our opinion there is one more reason why the persons who have been appointed against Scheduled Tribe Quota can not be accommodated in the seats reserved for Special Backward Class, because if it is assumed that the seat against which person is to be accommodated is reserved for Special Backward Class, then before granting petitioner appointment against that seat, it is mandatory, because it is public service, to advertise that post so that every person who will be eligible to compete for that post and who belongs to Special Backward Class gets an opportunity to apply for the post and offer himself as candidate. Accommodation of the petitioner against a seat reserved for Special Backward Class by such back door method will deprive other persons belonging to Special Backward Class of their fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. Article 13 of the Constitution mandates the State not to make any law which abridges the fundamental rights. Prohibition contained in article 13 will also apply to the exercise of executive power by the State, because executive power of the State is co-extensive with the legislative power. If the state does not have power to make legislation violating or abridging fundamental right obviously, it does not have power to issue government resolution which has the result of abridging fundamental rights. We find that this government resolution in terms violates fundamental rights guaranteed by article 14 and 16 of the Constitution and therefore, the High Court will not be justified in issuing its writ for enforcement of such invalid and infirm government resolution. The Supreme Court has observed in the judgment reported in (2008) 4 Supreme Court Cases 612 : [2008(3) ALL MR 441 (S.C.)] (Union of India Vs. Dattatray s/o Namdeo Mendhekar) that persons who secure services on the basis of invalid caste certificate, their services can not be protected. The observations made in paragraph no. 6 of the judgment, in our opinion are relevant and same are as under:
â6. In this context, we may also refer to the decision in Bank of India Vs. Avinash D. Mandivikar and Addl. G.M. Human Resource, Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde wherein this Court held that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. In the latter case, this Court explained Milind thus : (Suresh Ramkrishna Burde case, SCC P.340, para 7)
â7. The High Court has granted relief to the respondent and has directed his reinstatement only on the basis of the Constitution Bench decision of this Court in State of Maharashtra Vs. Milind. In our opinion the said judgment does not lay down any such principle of law that where a person secures an appointment by producing a false caste certificate his services can be protected and an order of reinstatement can be passed if he gives an undertaking that in future he and his family members shall not take any advantage of being member of a caste which is in reserved category.â
This Court further held that even in cases of admission to educational institutions, the protection extended by Milind will be applicable only where the candidate had successfully completed the course and secured the degree, and not to cases where the falsehood of the caste certificate is detected within a short period from the date of admission.â
The petition is therefore, rejected.
Petition dismissed.â
14. In the matter of Bank of India V/s Avinash D Mandivikar, reported in 2006(1) Bom CR 300, the Supreme Court refused to grant protection to the employee, who had secured employment, on the basis of caste certificate issued to him, certifying that, he belongs to ST category and the scrutiny committee thereafter directed invalidation of the caste certificate, thereby recording finding that the petitioner does not belong to the category of the tribe to which he claims to belong.
In paragraph No.6 of the Judgment, the Supreme Court has observed that, â .. When the clear finding of the scrutiny committee is that he did not belong to scheduled tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eyes of law. There is absolutely no justification for his claim in respect of post he usurped, as the same was meant for reserved candidate. In concluding paragraph of the Judgment, the Supreme Court has observed, â By giving protection even for a limited period, result would be that a person who has a legitimate claim shall be deprived of the benefits. On the other hand a person who has obtained it by illegitimate means, would continue to enjoy it notwithstanding the clear finding that he does not even have a shadow of right even to be considered for appointment.â
15. Our attention is invited to a Judgment of division Bench in the matter of RajendraRamji Mahisbadwe Vs. The Joint Commissioner and Vice Chairman, reported in 2013 (4) All MR 114.. The Division Bench has observed thus:
â12. In para 11 Ganesh Rambhau Khalale Vs. State of Maharashtra and others (2009(2) ALL MR 152) (supra) considers a three Judges Judgment of the Hon'ble Apex Court in the case of Union of India Vs. Dattatraya Namdeo Mendhekar and others (2008(3) ALL MR 441 (S.C.) (supra) has been noted and appreciation of Constitution Bench judgment in the case of State of Maharashtra V/s Milind and others (2001 (1) ALL MR 573 (S.C.) (supra), therein has been elaborately looked into. The moulding of relief in exercise of powers under Article 142 by the Constitution Bench is again highlighted. It is in this background that the Full Bench then proceeds to apply the law in para 12. In para 13, the following conclusions have been recorded:
âHaving regard to the legal position that emerges from above referred Judgments, we record the conclusions and answer the question framed:
observations / directions issued by the Supreme Court in para 36 of the Judgment in the case of State Vs. Milind, reported in 2001(1) Mah. L.J. SC 1: (AIR 2001 SC 393) is not the 'law declared by the Supreme Court under Article 141 of the Constitution of India. The said observations / directions are issued in exercise of powers under Article 142 of the Constitution. The said observations / directions have no application to the cases relating to appointments and are restricted to the cases relating to admissions. The protection, if any, to be granted in the facts and circumstances of the case would depend upon the exercise of discretion by the Supreme Court under Article 142 of the Constitution. As the powers under Article 142 are not available to the High Court, no protection can be granted by this Court even in cases relating to admissions.ââ
16. In para No.23 of the Judgment, conclusion is drawn thus:-
âIn Vemareddy Kumarswamy Reddy vs. State of A.P. Reported at (2006) 2 SCC 670, the Hon'ble two judges have held that a statute is an edict of the Legislature and when words are very clear and there is no obscurity and ambiguity, there is scope for the Court to innovate or take upon itself the task of amending or alerting the statutory provision. The Hon'ble Apex Court has pointed out that there is a very thin line which separate the adjudication from legislation and cautioned that said line should not be crossed. We, therefore, can not overlook the mandate of section 10 of Act No.23 of 2001. We have to follow the full bench Judgment of this Court in Ganesh Khalale (supra) and various other Judgments of coordinate benches of this Court already pointed out above. â
17. Similar view is expressed in the matter of ArchanaDadarao Pethkar Vs. Joint Commissioner and Vice Chairman, reported in 2013 (3) Mh.L.J. 764, by the Division Bench.
18. Reliance is placed on the Judgment in the matter of SanjivkumarRajendrarao More vs. State of Maharashtra, reported in 2007(6) Bom CR 759 of the Division Bench to which one of us (RM Borde) was a member. In paragraphs No.16 and 17 of the Judgment, Division Bench recorded thus:-
â16. The petitioner has secured benefits on the basis of tribe claim and has secured employment with the Government. The petitioner is holding a post of the rank of Deputy Collector at present. The petitioner has derived the service benefits for more than eleven years. As the petitioner has failed to substantiate his claim in respect of his special status, all the benefits, which are accrued to the petitioner and which are derived by the petitioner, are required to be withdrawn forthwith. In view of the provisions of Section 10 of the Act of 2000, the petitioner is not entitled to secure benefits and as such, the protection, which the petitioner has secured in the matter of employment, is required to be withdrawn forthwith.
17. We may refer to the observations made by the Apex Court in the reported judgment of (Kum. Madhuri Patil vs. Additional Commissioner, Tribal Development) reported in 1995 (2) Bom. C.R. (SC) 690:
â13, The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has 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 candidates are also denied admission to educational institutions or appointers to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny committee. â
In view of these observations, the benefits accrued to the petitioner and secured by the petitioner are required to be withdrawn forthwith.
19. The petitioner, in order to substantiate his contention that a judicial decision cannot be rendered ineffective by fiat, has
placed reliance on the Judgment in the matter of State of Maharashtra and others V/s Kumari Tanuja, reported in AIR 1999 SC 791. The petitioner contends that it was not permissible for the State Government to issue resolution in the year 1995 thereby nullifying the effect of Judgment in case of Madhuri Patil.
20. It is contended by the petitioner that by issuing Govt. resolutions, the State Government has indirectly issued directions to disobey the decision of the Court which is impermissible. In this context, reliance is placed in the matter of Municipal Corporation of City of Ahmedabad and another V/s The New Shrock Spg. and Wvg. Co. Ltd. reported in AIR 1970 SC 1292. In paragraph No.7 of the Judgment, Supreme Court has observed thus:
7. This is a strange provision. Prima facie that provision appears to command the Corporation to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. The State of Gujrat was not well advised in introducing this provision. That provision attempts to make a direct inroad into the judicial powers of the State. The legislatures under our Constitution have within the prescribed limits, powers to make laws prospectively as well as retrospectively. By exercise of those powers, the legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective. But no legislature in this country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by courts. The limits of the power of legislatures to interfere with the directions issued by courts were considered by several decisions of this Court. In Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, Civil Appeals Nos. 21972198 of 1996, D/2541969 = (reported in AIR 1970 SC 192) our present Chief Justice speaking for the Constitution Bench of the Court observed:
âBefore we examine Section 3 to find out whether it is effective in its purpose or not we may say a few words about
validating statutes in general. When a legislature sets out a validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statues or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by reenacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the reenacted law.â
21. The contentions raised by the petitioner are controverted by presenting an affidavit-in-reply on behalf of the State Government wherein it has been denied that protection has been extended by the State to such of those candidates who have secured employment on the basis of fake Scheduled Tribe certificates, under Government Resolutions dated 15.06.1995 and 03.07.1995. It is contended that benefits are extended to certain communities who are socially and economically backward and have been listed in Special Backward Class category. It is contended that under the Government Resolution, benefit is extended to the persons whose claim for validation of tribe certificates certifying that they belong to Scheduled Tribe category have been invalidated and that those candidates in fact belong to Special Backward Class and have secured employment on the basis of tribe certificates, have been extended protection in the employment, however, with a precondition that a candidate should have been inducted in employment prior to 15.06.1995.
22. It is further contended that it is permissible for the State Government to extend benefits of reservation to the communities who are socially and economically backward and not covered under the Order issued by the President of India under Articles 341 and 342 of the Constitution of India. It has been pointed out that a large number of candidates have been inducted in employment on the basis of tribe certificates certifying them to be belonging to Scheduled Tribe category prior to 15.06.1995. On invalidation of their Tribe Certificates, such of those candidates, who are found to be belonging to Special Backward Category, are only extended protection. A conscious decision has been taken by the State Government in order to protect the employment of such candidates who have rendered service for years together. If on the invalidation of tribe certificates of such of those candidates protection is withdrawn, the candidates would become unfit to secure any other employment since they are rendered overage and such decision is likely to create a larger social problem. The State Government has issued another Resolution on 30.06.2004 extending benefits to those non tribals who have secured employment with Government or Semi-Government or promotion as against posts reserved for Scheduled Tribe category prior to 15.06.1995. Their services are protected and that it has been directed not to revert them. It is further directed that they should be shown in the categories to which they belong. It is declared that they would be entitled from the date of issuance of Resolution to be accommodated from the category which they belong and the posts falling vacant shall be filled in from amongst the Scheduled Tribe category candidates. It is also pointed out that benefits under the Government policy dated 15.06.1995 have been extended to large number of employees under several orders issued by the High Court as well as Supreme Court of India.
23. The contention raised by the State Government that withdrawing service benefits to the employees who are in employment for many years and if the length of service, as on today is concerned, at least for more than twenty years, is likely to pose a serious social problem.
24. It is not a matter of dispute that the persons, who are inducted in employment, are from socially and economically disadvantaged group. It is permissible for the State Government to extend protection to such socially, economically and educationally backward class.
25. In the matter of KavitaSolunke Vs. State of Maharashtra and others, reported in 2012 (5) Mh.L.J. 921, the Supreme Court has granted protection to the petitioner who was in employment and rendered service for not less than 10 years, even after order of invalidation of tribe certificate by the Scrutiny Committee. The protection was claimed on the basis of judgment in the matter of State of Maharashtra Vs. Milind, reported in 2001 (1) Mh.L.J. (SC) 1 = (2001) 1 SCC 4. Petitioner â Kavita, before the Supreme Court, claimed benefits available to a person belonging to Halba, Scheduled Tribe. While dealing with the issue as regards grant of protection, the Supreme Court has observed in paragraph 14 of the judgment, as below:
â14 Reference may also be made to Punjab National Bank Vs. Vilas, 2007 (3) Mh.L.J. (S.C.) 805 = (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:
âThe 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 âKoshtiâ 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 of 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.â
Ultimately, noticing that the petitioner has not indulged in fabricating or falsifying particulars of being a Scheduled Tribe category candidate, with a view to obtain undeserved benefits in the matter of appointment as a teacher, she was held entitled for extension of protection against ouster.
26 The Division Bench of this Court, in the matter of A.P. Ramtekkar Vs. Union of India, has considered case of the petitioner for granting protection from ouster noticing that the petitioner, who claimed benefits as a candidate belonging to Scheduled Tribe and having rendered service for number of years, is entitled to protect his employment on the basis of judgments delivered in the matter of KavitaSolunke Vs. State of Maharashtra (supra) and in the matter of State of Maharashtra Vs. Milind (supra). A reference is made to the judgment in the matter of DattuNamdeo Thakur Vs. State of Maharashtra, reported in 2012 (3) Mh.L.J. (S.C.) 179 = (2012) 1 SCC 549, wherein the Hon'ble Supreme Court has held that disturbing educational career or employment of a candidate, which has become final with the passage of time, will not be in the interest of anyone. The view taken by the Division Bench in A.P.Ramtekkar'smatter, has been confirmed by the Three-Judge Bench of the Supreme Court.
27. The Division Bench of this Court, while disposing of a batch of Writ Petition bearing No.5530 of 2012 (Kum. Vijaya Deorao Naridanwar Vs. Chief Officer, Municipal Council, Wardha), and companion writ petitions, decided on 5th10th July, 2013, has directed extension of benefits in the nature of relief as against ouster from employment on noticing that petitioners were continued in employment for number of years and that they belong to disadvantaged group, however, their tribe certificates, certifying that they belong to a particular Scheduled Tribe, have been invalidated.
28. In the matter of Kum.BhaminiSadashiv Thanekar Vs. State of Maharashtra and others (Writ Petition No.194 of 2003), decided by the Division Bench of this Court at Mumbai on 14.08.2003, the petitioner claimed benefit as against ouster from employment on the basis of Government Resolution dated 15.06.1995 upon invalidation of tribe claim of the petitioner by the Scrutiny Committee. The Division Bench, agreeing with the view taken by the another Division Bench, while disposing of Writ Petition No.3895/1998 (Smt.Vandana Joseph Vaity Vs. State of Maharashtra and others), held that Maharashtra Act No.XXIII of 2001 does not take away the protection of service which was provided under the Government Resolution dated 15.06.1995.
29. The Hon'ble Supreme Court, in the matter of Punjab National Bank Vs. Vilas Govindrao Bokade and another, reported in 2007 (3) Mh.L.J. 805, has dealt with the issue of extending benefits to the employees on the basis of Government Resolutions dated 15.06.1995 and 30.06.2004. Hon'ble Shri Sema, J., while recording reasons, has observed that, âthe observation made in para 17 of the judgment in the matter of State of Maharashtra Vs. Sanjay K. Nimje, in reference to Government Resolution dated 15.06.1995, is obiter dicta and no law has been laid down.â It is observed by the learned Judge that Government Resolution dated 15.06.1995, protect candidates appointed prior to Government Resolution dated 15.06.1995; and held that case of the employee, before the Court, is covered by the Government Resolution and his service stands protected. Hon'ble Sirpurkar, J., who has recorded separate reasons, agreed with the view expressed by Hon'ble Sema, J., that the observation in the matter of Sanjay K. Nimje, in para 17 of the judgment, is in the nature of obiter dicta. In Sanjay K. Nimje'scase, it was noticed that the employee was appointed in service on 29.06.1995 and as such, his appointment, being after issuance of G.R. dated 15.06.1995, benefits thereunder are not available, however, provisions of Act of 2000 shall have to be made applicable. While dealing with the issue, in paragraph 17 of the judgment, the Supreme Court has observed that âthe judgment of the Supreme Court as also provisions of the statute, in the light of Constitutional provisions contained under Articles 341 and 342 of the Constitution of India, cannot be diluted by Government Resolution or otherwise.â As has been observed by the Supreme Court in the matter of Punjab National Bank (supra), observations contained in para 17 of the judgment in the matter of Sanjay K. Nimje, are held to be obiter dicta.
30. The issue raised in the instant petitions stand concluded in view of the judgment delivered by the Supreme Court in the matter of ShaliniVs. New English High School Association and others, reported in 2014 (2) Mh.L.J. 913. The petitioner before the Supreme Court was a teacher who came to be employed as an Assistant teacher against a vacancy earmarked for Scheduled Tribe candidate, she having filed a caste certificate dated 08.07.1974, issued by the competent authority, certifying her to belong to Halba, Scheduled Tribe category. The Scrutiny Committee, verifying the tribe certificate, directed its invalidation. As such, services of the petitioner came to be terminated, which gave rise to the litigation and ultimately, the learned Single Judge and Division Bench of this Court, dealing with the Letters Patent Appeal, held against the petitioner. The Supreme Court was called upon to consider as to whether employment of the petitioner, before the Supreme Court, was justifiably terminated because the Caste Scrutiny Committee, after passage of several decades, found her disentitled to claim benefits inuring to Halbas. The employee claimed benefits under the policy formulated by the Government reflected in Government Resolution dated 15.06.1995. While dealing with the issue, in paragraph 5 of the judgment, the Supreme Court has observed thus:
â5 It is evident that there is a plethora of precedents on this aspect of the law, and perhaps for this reason Counsel for the parties were remiss in drawing our attention in the present proceedings to the detailed judgment in Kavita Solunke Vs. State of Maharashtra, 2012 (5) Mh.L.J. (S.C.) 921 = (2012) 8 SCC 430, in which one of us, Thakur, J., had analysed as many as eleven precedents including those discussed above. After reviewing all the judgments it was held, in the facts and circumstances of that case, that since that party had not intentionally or with dishonest intent fabricated particulars of a scheduled tribe with a view to obtain an undeserved benefit in the matter of appointment, she was entitled to protection against ouster from service, but no other benefit. In view of the comprehensive yet concise consideration of case law in Solunke, any further analysis would make the present determination avoidably prolix, and therefore our endeavour will be to cull out the principles which would be relevant for deciding such like conundrums. These are â (a) If any person has fraudulently claimed to belong to a Scheduled Caste or Scheduled Tribe and has thereby obtained employment, he would be disentitled from continuing in employment. The rigor of this conclusion has been diluted only in instances where the Court is confronted with the case of students who have already completed their studies or are on the verge of doing so, towards whom sympathy is understandably exdtended; (b) Where there is some confusion concerning the eligibility to the benefits flowing from Scheduled Caste or Scheduled Tribe status, such as issuance of relevant certificates to persons claiming to be 'Koshtis' or 'Halba Koshtis' under the broadband of 'Halbas', protection of employment will be available with the rider that these persons will thereafter be adjusted in the general category thereby rendering them ineligible to further benefits in the category of Scheduled Caste or Scheduled Tribe as the case may be; © this benefit accrues from the decision of this Court inter alia in Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar, 2009 (1) Mh.L.J. (S.C.) 1 = (2008) 9 SCC 54, which was rendered under Article 142 of the Constitution of India. Realizing the likely confusion in the minds of even honest persons the Resolutions/Legislations passed by the State Governments should spare some succour to this section of persons. This can be best illustrated by the fact that it was in Milindthat the Constitution Bench clarified that 'Koshtis' or 'HalbaKoshtis' were not entitled to claim benefits as Scheduled Tribes and it was the 'Halbas' alone who wre so entitled. A perusal of the judgment in Vilas by Sirpurkar, J., as well as Sounke, makes it clear that this protection is available by virtue of the decisions of this Court; it is not exclusively or necessarily predicated on any Resolution or Legislation of the State Legislature; (d) Where a Resolution or Legislation exists its raison d'etre is that protection is justified in presentie (embargo on removal from service or from reversion) but not in futuro(embargo on promotions in the category of Scheduled Caste or Scheduled Tribe).
31. So far as Government Resolution dated 15.06.1995 is concerned, the Supreme Court has observed that it grants status quo as regards employment in respect of the category of employees who have already been appointed or promoted in employment prior to specified date. The Supreme Court has also referred to the observations in Sanjay K. Nimje'scase, that the Government Resolution would continue to apply even after passing of Act of 2000 so long as the appointment has been made prior to 1995. The Supreme Court has taken a view that an innocent statement, which later transpires to be incorrect, may not be treated to be false in general sense and would not attract punitive or detrimental consequences. An untruth coupled with dishonest intention, however, requires legal retribution. The Supreme Court, as such, in effect ruled upon the validity and legality of Government Resolution dated 15.06.1995. In paragraph 7 of the judgment, the Supreme Court has observed thus:
â7. We must now reflect upon the Government Resolution dated 15.06.1995 passed by the Government of Maharashtra. Virtually it grants status quo as regards employment inasmuch as it states that those persons who, on the basis of Caste Certificates, already stand appointed or promoted in the Government or Semi-Government, shall not be demoted or removed from service. Thereafter, the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (for short, '2000 Act') was passed by the Legislature and received the assent of the President. Section 10 thereof reads thus:
10. Benefits secured on the basis of false Caste Certificate to be withdrawn.
(1) Whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category secures admission in any education institution against a seat reserved for such Castes, Tribes or Classes, or secures any appointment in the Government, local authority or in any other company or corporation, owned or controlled by the Government or in any Government aided institution or cooperative 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, 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.
(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 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 of a Caste Certificate which is subsequently proved to be false shall also stand cancelled, on cancellation of such Caste Certificate by the Scrutiny Committee.
(4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory body if he has contested the election fro local authority, cooperative society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by procuring a false Caste 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 be deemed to have been terminated retrospectively.â
In essence, the section cancels with preemptive effect any benefit that may have been derived by a person based on a false caste certificate. Whilst âCaste Certificateâ has been defined in section 2(a) of the 2000 Act, âFalse Caste Certificateâ has not been dealt with in the Definitions clause. There is always an element of deceitfulness, in order to derive unfair or undeserved benefit whenever a false statement or representation or stand is adopted by the person concerned. An innocent statement which later transpires to be incorrect may be seen as false in general sense would normally not attract punitive or detrimental consequences on the person making it, as it is one made by error. An untruth coupled with a dishonest intent however requires legal retribution. It appears to us that section 10 applies in the Dattatraymould only. It was obviously for this reason that in Vilas, Sema, J., was of the opinion that the 2000 Act did not apply to the facts before it whereas Sirpurkar, J., after concurring with Sema, J., granted protection albeit under Article 142 of the Constitution of India. In Nimje, another Two-Judge Bench held that Government Resolution dated 15.06.1995 would continue to apply even after the passing of the 2000 Act so long as the appointment had taken place prior to 1995. There is, therefore, palpable wisdom in the office.â
The Supreme Court found that there is palpable wisdom in issuing Office Memorandum dated 10.08.2010 of the Government of India, so far as it relates to Halba Koshtis and Koshtis, granting them protection against ouster, if their appointments had become on or before 28.11.2000. Same analogy applies so far as Government Resolution dated 15.06.1995 is concerned. The decision taken by the State Government is in the interest of large Section of employees. If any fault is found with the action of the Government in directing protection in employment to class of such candidates who are inducted in employment prior to 1995, their services will have to be dispensed with, may be after lapse of about 20 years of their induction. Such an action would affect thousands of employees who have already been in employment of the State. Such a resolution, as contended by the petitioner, would pose a serious social problem and the State Government is justified in contending that in order to avert occurrence of such problem, decision is taken to extend protection in employment to the category of employees belonging to Special Backward Class and who have been inducted in employment as against the vacancies reserved for Scheduled Tribe categories prior to 15.06.1995.
32. In view of the decision rendered by the Supreme Court in the matter of ShaliniVs. New English High School Association and others, reported in 2014 (2) Mh.L.J. 913; as well as for the reasons recorded above, we do not find any reason to cause interference in the matter. Writ Petition is devoid of substance.
33. In the result, writ petition stands dismissed. Rule discharged. There shall be no order as to costs.