Judgment wp1802.14+5 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION Nos. 1802/2014, 1503/2011, 2839/2013, 5178/2013, 5766/2013, 6868/2013, 3476/2013 & 5892/2013. WRIT PETITION No. 1802/2014. Ku. [ENTITY] d/o. Prabhakarrao Mahure, (Sau. [ENTITY] w/o Vijay Khuje) Aged about 40 years, Occ - Service, r/o. 53, Ahilya Nagar, Jaitala Road, Nagpur. PETITIONER VERSUS 1. [ENTITY]. 2. The [ENTITY]. 3. The [ENTITY]. RESPONDENTS . Downloaded on - 19/03/2015 00:01:03 Judgment wp1802.14+5 2 Mr. [ENTITY], Advocate for Petitioner. Mrs. [ENTITY], Advocate for Respondent No.1. Mr. [ENTITY], Advocate for Respondent Nos.2 and 3. WRIT PETITION No. 1503/2011. [ENTITY] s/o Vishwanath Shinde, Aged about 39 years, Occ - Service, r/o. Blue Bell, A-602, Hiranandani Garden, Pawai, Mumbai-76. PETITIONER. VERSUS 1. The [ENTITY]. 2. The [ENTITY], through its Secretary, General Administration Department, Mantralaya, Mumbai - 32. RESPONDENTS . Mr. [ENTITY], Advocate for Petitioner. Mr. [ENTITY], Advocate for Respondent No.1. Mrs. [ENTITY], A.G.P. for Respondent No.2. Downloaded on - 19/03/2015 00:01:03 Judgment wp1802.14+5 3 WRIT PETITION No. 2839/2013. [ENTITY], ([ENTITY]), Aged about 42 years, Occ - Assistant Teacher, r/o. Solanki Layout Buldhana, Tahsil and District Buldhana. PETITIONER. VERSUS 1. The [ENTITY], through its Secretary, School Education Department, Mantralaya, Mumbai - 32. 2. Chief Executive Officer, Zilla Parishad, Buldhana, Tahsil and District Buldhana. 3. Chief Secretary, General Administration Department, Mantralaya, Mumbai - 400 032. RESPONDENTS . Mr. [ENTITY], Advocate for Petitioner. Mrs. [ENTITY], A.G.P. for Respondent Nos.1 & 3. Mr. [ENTITY], Advocate for Respondent No.2. Shri [ENTITY], A.S.G.I. For Union of India. [CASE NUMBER]. Smt. [ENTITY], Downloaded on - 19/03/2015 00:01:03 Judgment wp1802.14+5 4 Aged about 42 years, Occ - Service as Assistant Teacher, r/o. Shiv colony Ramalaya Apartment, near Vitthal Mandir Amravati. PETITIONER. VERSUS 1. [ENTITY], through its Secretary, Ministry of Tribal Welfare Department, Mantralaya, Mumbai - 32. 2. Scheduled Tribe Caste Certificate Scrutiny Committee, Amravati Division, Amravati, through its Member Secretary. 3. Shree Ganeshdas Rathi Chhatralaya Samiti, a society registered under the [ACT], Morshi Road, Amravati, through its Secretary. 4. Shree Deorao Dada High School, Tiosa, District Amravati, through its Head Master. RESPONDENTS . Mr. [ENTITY], Advocate for Petitioner. Mr. [ENTITY], A.G.P. for Respondent No.1. Mr. [ENTITY], Advocate for Respondent No.2. Mr. [ENTITY], Advocate for Respondent Nos. 3 and 4. Downloaded on - 19/03/2015 00:01:03 Judgment wp1802.14+5 5 [CASE NUMBER]. Ku. [ENTITY], Aged about 40 years, (After marriage [ENTITY]) r/o. Chitra Chowk, Pulgaon, Deoli District Wardha. PETITIONER. VERSUS 1. Scheduled Tribe Certificate Scrutiny committee, through its Member Secretary, Irwin Chowk, Amravati. 2. [ENTITY], through its President Shri [ENTITY], r/o. Dhamangaon Railway, District Amravati. 3. Head Mistress, late [ENTITY] & Junior College Dhamangaon Railway, District Amravati. 4. Education Officer (Secondary) Zilla Parishad, Amravati. RESPONDENTS . Mr. [ENTITY], Advocate for Petitioner. Mr. [ENTITY], Advocate for Respondent no.1. Mr. [ENTITY], A.G.P. for Respondent No.4. Downloaded on - 19/03/2015 00:01:03 Judgment wp1802.14+5 6 [CASE NUMBER]. [ENTITY] s/o [ENTITY], Aged about 44 years, Occ - Service r/o. Parimal 85, Chakradhar Nagar Post Ayodhya Nagar, Nagpur - 440024. PETITIONER. VERSUS 1. Joint Director and Vice Chairman, Scheduled Tribe Caste Certificate Scrutiny Committee, Adiwasi Vikas Bhavan, Giripeth, Nagpur. 2. Sub Area Manager, Western Coalfields Ltd., Sillewara Sub Area. Tah. [ENTITY], District Nagpur. RESPONDENTS . Mr. [ENTITY], Advocate for Petitioner. Mr. [ENTITY], Advocate for Respondent No.1 Mr. [ENTITY], Advocate for Respondent No.2. [CASE NUMBER]. [ENTITY] s/o [ENTITY], Aged about 34 years, Occ - Assistant teacher, Shivaji High School, Gadchiroli r/o. Porla, Taluka and District Gadchiroli. PETITIONER. Downloaded on - 19/03/2015 00:01:03 Judgment wp1802.14+5 7 VERSUS 1. Shivaji High School, Gadchiroli, through Head Master. 2. [ENTITY], Gadchiroli, through its Secretary. 3. Scheduled Tribe Caste Certificate Scrutiny Committee, Gadchiroli through its Member Secretary. RESPONDENTS . Mr. [ENTITY], Advocate for Petitioner. Mr. [ENTITY], Advocate for Respondent No.3 [CASE NUMBER]. Smt. [ENTITY] wd/o [ENTITY] (maiden name Ku. [ENTITY]) Aged about 52 years, Occ - Nurse r/o. [ENTITY], PHC Karajgaon, Tq. Chandurkar Bazar, District Amravati. PETITIONER. VERSUS 1. Zilla Parishad, Amravati through its Chief Executive Officer, Amravati. Downloaded on - 19/03/2015 00:01:03 Judgment wp1802.14+5 8 2. The District Health Officer, Zilla Parishad, Amravati. 3. Scheduled Tribe Caste Certificate Scrutiny Committee, through its Member Secretary, Irwin Chowk, Amravati. RESPONDENTS . Mr. [ENTITY], Advocate for Petitioner. Mr. [ENTITY], Advocate for Respondent No.1. ig CORAM : [ENTITY] AND [ENTITY], JJ.
Date of Reserving the Judgment : 12.01.2015 (W.P.NO.1802/2014) 20.01.2015 ([CASE NUMBER]. 21.01.2015 (W.P.NO.6868/2013) 23.01.2015 (W.P.NO.5766/2013,) 25.02.2015 ([CASE NUMBER]) Date of Pronouncement : 13.03.2015. Judgment wp1802.14+5 JUDGMENT. (Per [ENTITY], J)
In all these petitions filed under [SECTION] of the [ACT], challenge is to order of the Scrutiny Committee functioning under 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) [ACT], invalidating the caste/tribe claim of respective petitioner. The petitioners seek protection in employment, in terms of Full Bench judgment of this Court in the matter of Arun Vishwanath Sonone .vrs. [ENTITY] and others (2015 (1) Mh.L.J. 457). The said claim for protection is objected by the State Government, as also by their respective employers on the ground that their caste/tribe does not figure in the Government Resolution dated 15.06.1995 or later policy decision dated 30.06.2004, and hence benefit cannot be extended to them.
2. As the issue involved is same, as requested by the parties, we have heard the matters together. Some matters have been added afterward, after hearing the respective counsel therein. Thus, looking to the nature of the Judgment wp1802.14+5 controversy involved, we have heard all the matters finally by issuing Rule, and making it returnable forthwith by consent of the parties.
3. Shri [ENTITY], learned Counsel appearing for petitioner in [CASE NUMBER] had expressed desire to argue the matter first.
Other counsel for petitioners did not oppose his request. Accordingly we have heard the learned counsel.
4. In [CASE NUMBER], the Caste Scrutiny Committee is not party and said petitioner has assailed a communication dated 05.04.2013, issued by the Zilla Parishad, Buldhana calling upon him to produce validity certificate issued by the Scrutiny Committee. Petitioner claims to belong to '[ENTITY], Scheduled Tribe'. He is born on 14.05.1971.
He got caste certificate on 04.01.1989 showing that he belongs to [ENTITY], Scheduled Tribe and he got selected for employment on 03.06.1995. His caste claim was invalidated on 13.02.1998 and his Writ petition has been rejected in limine in 1999 itself. He however, continued in service and after receipt of show cause notice dated 05.04.2013, he has chosen to approach this Court. This Court has protected his employment on 24.05.2013.
Judgment wp1802.14+5 In [CASE NUMBER], the petitioner initially assailed order of the Scrutiny Committee invalidating his caste claim as belonging to '[ENTITY] Scheduled Tribe' passed on 04.09.2013. However, after 19.06.2013, petition has been pressed only for grant of protection in employment. She is born on 12.01.1972 and obtained caste certificate on 26.08.1982. She has been appointed on 01.12.1998, as a person belonging to [ENTITY] Scheduled Tribe. After order of scrutiny committee dated 04.09.2013, she has been terminated by her employer, a private Education Society on 30.09.2013.
Petitioner - Ku. [ENTITY] seeks reinstatement by setting aside the said order.
Petitioner - Smt. [ENTITY] in [CASE NUMBER], questions order of Scrutiny Committee dated 06.09.2013 invalidating her caste claim as '[ENTITY] Scheduled Tribe'. She is born on 05.04.1970 and got caste certificate on 30.04.1991. She entered employment of private employer i.e. respondent nos. 3 and 4 School on 27.04.1998. Her certificate was sent for verification on 25.04.2005, and caste claim has been invalidated on 06.09.2013. This Court has on 26.09.2013, protected her employment.
Judgment wp1802.14+5 Petitioner in [CASE NUMBER] - [ENTITY], questions order of Scrutiny Committee dated 24.04.2009 invalidating his caste claim as '[ENTITY] Scheduled Tribe'. He is born some time in 1972 and he got caste certificate on 26.04.1989. On that basis he joined employment with respondent no.2 [ENTITY] on 17.11.1994. His caste certificate was forwarded for verification on 10.06.2003, and has been invalidated on 24.04.2009. On 28.08.2011, this Court while issuing notice in the matter and directed parties to maintain status quo. Therefore, the petitioner continues in service.
Petitioner - [ENTITY] in [CASE NUMBER] questions order of Scrutiny Committee dated 04.09.2013, invalidating caste claim as belonging to '[ENTITY]' Scheduled Tribe. Said petitioner is born on 06.06.1969 and got caste certificate on 29.07.1985. He joined employment on 24.01.1995. His caste claim came to be referred on 23.03.2009, and has been invalidated on 04.09.2013. This Court has while issuing notice in the matter on 24.12.2013, granted status quo and accordingly, [ENTITY] continues in employment.
Petitioner - Ku. [ENTITY] in [CASE NUMBER], Judgment wp1802.14+5 questions order of Scrutiny Committee dated 18.02.2014 invalidating her tribe claim as belonging to '[ENTITY]' Scheduled Tribe. She is born in 1974 and got caste certificate on 18.06.1993. She got employment as '[ENTITY], Scheduled Tribe' candidate on 12.05.1993 with a private School i.e. respondent nos. 2 and 3. After completion of probation, she has been confirmed on 24.06.1995. Her caste claim was referred for the first time to the Scrutiny Committee on 24.06.2013. This Court while issuing notice in the matter on 08.04.2004, granted status quo, and therefore, she continues in service.
Petitioner - [ENTITY] in [CASE NUMBER] is born some time in the year 1979, and has obtained caste certificate as belonging to "[ENTITY] Scheduled Tribe" on 22.06.1998. He got employment on 30.09.2000. Caste claim of petitioner was referred to the Scrutiny Committee on 20.03.2003 and the same has been invalidated on 12.06.2013.
In [CASE NUMBER], petitioner - Smt. [ENTITY] is born some time in the year 1961 and she got caste certificate showing her belonging to "[ENTITY] Scheduled Tribe" on 29.06.1981. She procured Judgment wp1802.14+5 employment on 08.02.1985 and her claim was forwarded for verification and scrutiny on 30.09.2013 to the Scrutiny Committee, i.e. almost after a period of 28 years, and the same has been invalidated on 09.10.2003.
5. Limited controversy to be considered in all these matters is whether judgment of Full Bench of this Court in case of Arun Vishwanath Sonone .vrs. [ENTITY] and others (supra), protects the employment of present petitioners ?
6. Shri [ENTITY], learned Counsel has taken us through the Full Bench judgment in case of [ENTITY] (supra) , to point out the terms of reference to Full Bench and how the Full Bench has proceeded to appreciate the points having bearing on said reference. He argued that though most of the decisions of High Courts or of Hon'ble Supreme Court have dealt with.
Halba Scheduled Tribe, principles laid down therein hold good equally for other castes/tribes including, [ENTITY]. He further submits that the judgment of Full Bench is only clarificatory in nature and does not lay down any new law. He submits that the category carved out as 'Special Backward Category' (SBC) by the State Government can be seen in Government Resolution dated 15.06.1995, however, the Hon'ble Apex Court Judgment wp1802.14+5 in judgment reported at 2012 (1) SCC 549 ([ENTITY] .vrs. [ENTITY] and others), has extended protection even to a person who failed to establish his tribe claim as belonging to [ENTITY] Scheduled Tribe.
He points out that persons who failed to establish tribe claim got full protection in terms of the Full Bench judgment in case of [ENTITY] (supra). Precedent of Hon'ble Apex Court in case of [PRECEDENT], as considered by the said Full Bench in paragraph no.60 of its judgment, is also pressed into service by him. He contends that unless and until it is shown that the person has obtained caste certificate by practicing falsehood or by using fraudulent means, the protection needs to be extended.
Subsequent Government Resolution dated 30.06.2004 is pressed into service to show that it covers "all non-tribals". Appreciation of judgment of Hon'ble Apex Court in case of [ENTITY] .vrs. [ENTITY] (supra), is also relied upon by him. Judgment of Hon'ble Supreme Court in case of Exe.E.EHV.C.Div.No.1 MSETCL Nagpur .vrs. [ENTITY] and others (Special Leave to Appeal ([CASE NUMBER] dated 04.03.2014, is also relied upon by him to urge that their protection has been extended to a candidate who could not substantiate his claim as belonging to [ENTITY] Scheduled Tribe. He submits that protection to [ENTITY] persons is, Judgment wp1802.14+5 therefore, a law under [SECTION] of the [ACT].
7. Shri [ENTITY], learned Counsel has mostly adopted the arguments of Advocate Shri [ENTITY]. According to him, Full Bench judgment in case of [ENTITY] .vrs. [ENTITY] (supra), 4 categories have been carved. out Those who got employment prior to 15.06.1995, and have been treated as SBC candidates, is the first category.
Second category is of 'non-tribals' covered under Government Resolution dated 30.06.2004; Third category is till delivery of judgment by the Hon'ble Apex Court in case of [ENTITY] .vrs. [ENTITY] Katware, i.e. till 28.11.2000; Fourth Category is of those appointed between 28.11.2000 till 18.10.2001 i.e. till coming into force of [ACT] with no condition to produce validity in their appointment order. He further submits that after 18.10.2001, no employment can be procured without producing validity.
As petitioners before this Court have all been recruited before judgment of the Hon'ble Apex Court in case of [ENTITY] .vrs. [ENTITY] Katware, they are entitled to be protected in the light of Full Bench judgment in case of [ENTITY] .vrs. [ENTITY] (supra). Shri [ENTITY], learned Counsel points out that petitioner [ENTITY] in [CASE NUMBER], has also obtained a certificate on 22.10.2010, which shows that Judgment wp1802.14+5 he belongs to [ENTITY], Scheduled Tribe. Hence, fact that earlier certificate was given by an incompetent Authority is, not very material. He submits that the Scrutiny Committee has in first paragraph while recording reasons, found that caste certificate produced by [ENTITY], has not been issued by the office of the Executive Magistrate, Akola. He submits that therefore, caste certificate is found to be fake one only technically. As petitioner has now procured caste certificate from competent authority, it needs to be sent back to the scrutiny committee for its verification. He is relying upon a judgment dated 29.11.2012 in [CASE NUMBER] (Ku. [PRECEDENT], for said purpose.
8. In [CASE NUMBER], Shri [ENTITY], learned Counsel submits that petitioner - Ku. [ENTITY] needs to be protected in the light of law as laid down in 2010 (4) AIR Bom High Court reports 48 (Chief Executive Officer, Z.P. .vrs. [ENTITY] and others), where the Hon'ble Apex Court has found that a candidate like her, who belongs to Special Backward Class (SBC), and whose claim is accepted by the State Government as such, needs to be continued in employment.
Judgment wp1802.14+5
9. In [CASE NUMBER], Shri [ENTITY], learned Counsel adopts the same line of argument.
10. Shri [ENTITY], learned Counsel for the petitioner - Ku.
[ENTITY] in [CASE NUMBER], maintains same line of argument.
11. Shri [ENTITY], learned Counsel in [CASE NUMBER] after giving relevant developments, submits that there is no finding of any fraud or falsehood recorded against the petitioner in the matter.
12. Shri [ENTITY], learned A.S.G.I., submits that protection in employment is a concept evolved by judiciary and it is available only in three cases. Those who belongs to S.B.C, need to be protected as per Government Resolution dated 15.06.1995, others who are covered by judgment of Constitution Bench in case of [ENTITY] vs. [ENTITY] Katware, (AIR 2001 SC 393 = (2001) 1 SCC 4), also need protection. Those who are not covered by the said Constitution Bench judgment or Government Resolution dated 15.06.1995, can be granted protection only if they satisfy the test laid down in case of [PRECEDENT] Judgment wp1802.14+5 and others (supra). He places strong reliance on paragraph no.52 of the judgment of Full Bench. He further relies upon several other paragraphs and pointed out that in paragraph no.55, the Full Bench has restricted consideration to S.B.C. Persons. Lack of malafides as requirement of extending similar treatment looked into in paragraph nos. 60 and 61 is, also pointed out by him. He submits that all judgments proceed on consanguinity and even Full Bench in case of [ENTITY] (supra), does not hold that the direction to protect in case of [ENTITY] (supra) given by the Hon'ble Apex Court was not under [SECTION] of the [ACT]. On the contrary, he invites attention to the findings recorded in paragraph no.52 by Full Bench that protection granted by the Hon'ble Apex Court was under [SECTION], recorded by the Division Bench, has not been upset. By pressing into service paragraph no.66, he contends that the Full Bench did not widen the area or field in which protection becomes available . Test applied in paragraph no.73 by the Full bench i.e., whether claim was fraudulent and whether there was any confusion or uncertainty, are also highlighted by him.
13. Shri [ENTITY], learned Counsel appearing for Zilla Parishad submits that [ENTITY] is not recognized as Special Backward Category. He Judgment wp1802.14+5 further contends that the word "non-tribal" in Government Resolution dated 30.06.2004, needs to be understood narrowly in the background of the castes shown as SBC contained in Government Resolution dated 15.06.1995.
Open category candidates or higher caste [ENTITY]s who procure ST or similar certificate and employment, are not eligible for protection.
14. Shri [ENTITY], learned Counsel in reply arguments in [CASE NUMBER], submits that after adjudication of his caste claim by the Scrutiny Committee, where claim is invalidated the person is rendered casteless. Shri [ENTITY], learned Counsel invites attention to paragraph no. 65[a] of Full Bench in case of [ENTITY] [supra], to state that it is not restricted only to SBC. According to him, everybody who got caste certificate as belonging to some backward or Scheduled tribe or Scheduled Caste category, needs to be understood as a backward class candidate while implementing the above mentioned Full Bench judgment.
15. Shri [ENTITY], learned Counsel appearing for the Scrutiny Committee in [CASE NUMBER] has submitted that it is basically for the employer to oppose the claim of protection. He invites attention to orders of the Hon'ble Apex Court in [CASE NUMBER] Judgment wp1802.14+5 dated 02.06.2011 and judgment of Division Bench of this Court in case of [ENTITY] .vrs. [ENTITY] (2012 (4) Mh.L.J.
396), particularly paragraph no.37. He has also pointed out how removal of area restriction was earlier considered by the Division Bench of this Court in case of [ENTITY] .vrs. [ENTITY] and others (2010 (2) Mh.L.J. 494).
16. In [CASE NUMBER], he invites attention to old documents dated 31.03.1952, where in school admission register caste of one [ENTITY] s/o [ENTITY] has been recorded as 'Kshtriya'. He submits that thus older documents relating to [ENTITY], dated 24.03.1919 where caste has been recorded as [ENTITY] is, not decisive.
17. In [CASE NUMBER], Shri [ENTITY] submits that petitioner could not produce any documents to show that he belongs to '[ENTITY]' Scheduled tribe. All old documents record caste as '[ENTITY]' and there is no scope for any confusion. He further states that when petitioner was called upon to appear before the Scrutiny Committee, he chose not to appear and also did not submit any explanation for his refusal to cooperate.
Finding of fraud reached by the Scrutiny Committee in paragraph no. 7[b], Judgment wp1802.14+5 is also pressed into service by him.
18. Shri [ENTITY], learned Counsel appearing for employer - Western Coalfields Ltd., invited our attention to condition no. 4 in the appointment order dated 24.01.1995 warning the petitioner [ENTITY] that his appointment was provisional and in case of invalidation of caste claim , he would be terminated without any notice, and that too, without prejudice to right of employer to take further suitable action.
19. Opposing [CASE NUMBER], Shri [ENTITY], learned counsel points out that certificate obtained by the petitioner - [ENTITY] is not issued by the competent Authority and, therefore, a fabricated one.
20. We will first deal with the question - Whether caste certificate dated 26.04.1989 submitted for verification by petitioner [ENTITY] in [CASE NUMBER], can be said to be fabricated or fake one ?
It is not in dispute that the said certificate dated 26.04.1989 does not figure in records of Executive Magistrate, Akola. Division Bench of this Court in [CASE NUMBER], on 29.11.2012 found that merely Judgment wp1802.14+5 because caste certificate is issued by an Authority not possessing power to do so, caste claim cannot be said to be invalid. Petitioner [ENTITY] has on 22.10.2010 obtained a certificate from a competent Authority namely Sub Divisional Officer, Akola which shows that he belongs to [ENTITY] Scheduled Tribe. Only question is, whether said certificate needs to be sent back to the scrutiny committee for reconsideration. We find that in the impugned order dated 24.04.2009 in paragraph no.8 the Scrutiny Committee has also examined his caste claim on merit. It has called for the vigilance report and also applied affinity test. Thus, merely because on 22.10.2010 the petitioner [ENTITY] has obtained another caste certificate, this exercise on merits by the Scrutiny Committee is not rendered nugatory. The Scrutiny Committee has not recorded a finding that while obtaining caste certificate, [ENTITY] has practiced any fraud or falsehood.
21. Petitioner - [ENTITY] in [CASE NUMBER], has withdrawn her claim as belonging to [ENTITY] Scheduled Tribe before the Scrutiny Committee itself, by filing affidavit. She accepted that she belongs to [ENTITY], Nomadic Tribes and her parents erroneously recorded her caste as [ENTITY]. She accepted the caste of her father as her caste. The scrutiny committee in vigilance found that caste of applicant's father was recorded as Judgment wp1802.14+5 [ENTITY], real sister of petitioner [ENTITY] has been given validity on 25.01.2013 as belonging to [ENTITY], Nomadic Tribes. Her brother [ENTITY] is also given validity in 2005. Her other brother [ENTITY] has also been given same validity. In this matter the Scrutiny Committee has not recorded a finding that petitioner while obtaining caste certificate has played any fraud or falsehood.
22. In [CASE NUMBER], the Scrutiny Committee has in paragraph no.7[b] noted that the petitioner [ENTITY] obtained caste certificate with malafide intention. However, this malafide intention is gathered because of school and revenue records of petitioner, his father, his grand father and great grand father, where caste was recorded as '[ENTITY]'. It could not see any documents pertaining to [ENTITY] himself, where caste has not been recorded as [ENTITY]. Caste certificate has been obtained when [ENTITY] was only 16 years old, and therefore, by his parents, as such we are not in a position to hold that petitioner [ENTITY] has practiced any falsehood while obtaining it.
23. In remaining matters also we have given the dates when caste certificates were obtained. The scrutiny committee has not recorded any Judgment wp1802.14+5 finding of fraud or falsehood, practiced by any of these petitioners.
24. In almost in all the mattes, caste certificates have been obtained when petitioners were minor, by their guardian or parents. School records of petitioner are not found to be tampered with or interpolated by the scrutiny committee. Caste claims are invalidated because of discovery of old documents which reveal the caste inconsistent with caste claim of petitioner. However, the scrutiny committee has not brought on record any previous knowledge thereof to any petitioner while obtaining caste certificate or while entering the employment.
25. Full Bench judgment of this Court in case of [ENTITY] (supra), practically covers entire field. Earlier Government Resolution dated 15.06.1995, is reproduced therein in paragraph no.57. Caste/Tribe [ENTITY], [ENTITY] or [ENTITY] or [ENTITY], does not figure therein. Later government resolution dated 30.06.2004 contains reference to this Government Resolution dated 15.06.1995. Its relevant para is as under :
"(a) The non-tribals who have received recruitment promotion in the government/semi-government services Judgment wp1802.14+5 on the reserved seats for the Scheduled tribes prior to 15.06.1995, should not be removed from service or should not be demoted. They should be shown in the constituent to which they belong. Henceforth, the reservation benefits entitled to that particular constituent will be due to them and the vacated posts in this manner should be filled from the tribal category."
The word 'non-tribals' used therein, therefore, needs to be construed as covering those who find and also those who do not find mention in government resolution dated 15.06.1995. Thus, those whose castes figure in government resolution dated 15.06.1995 already got protection because of it. In later government resolution dated 30.06.2004, the State Government could have conveniently used the word "SBC" , if it wanted to confer benefit only upon SBCs mentioned in GR dated 15.6.1995. However, it chose to employ a word with wider sweep ie"non-tribal". Non-tribal therefore does not point out only SBCs but it refers to all those who are not tribals but were given a caste certificate as belonging to a tribe or a backward class. There fore, it also covers others who do not figure in government resolution dated 15.06.1995. We need not to dwell more on this aspect as Hon'ble Full Bench has in paragraph no.65 observed that after decision in case of Madhuri Patil and another vrs. Additional Commissioner, Tribal Development (AIR Judgment wp1802.14+5 1995 SC 94), delivered by the Hon'ble Supreme Court on 02.09.1994, by issuing government resolution dated 15.06.1995 and 30.06.2004, all the appointments and promotions made upto 15.06.1995, against a post reserved for backward class category candidate have been protected, and cannot be canceled. In paragraph no.66 relevant observations of Full Bench show similar conclusions. In paragraph no.66[b], grant of protection is found contingent upon finding of the scrutiny committee on caste claim.
Thus protection cannot be extended, if caste certificate is found to be false or fraudulent by the Committee. If protection is granted, further advantage of said caste certificate in terms of promotion or otherwise cannot be taken after 28.11.2000 and if such benefit is taken after 28.11.2000, the competent Authority can withdraw it.
26. Hon'ble Supreme Court in [CASE NUMBER] Exe.E.EHV.C.Div.No.1 MSETCL Nagpur .vrs. [ENTITY] and others decided on 4.3.2014 extended protection to candidate whose caste claim as [ENTITY] Schedule Tribe was invalidated , granted protection.
It found that in [PRECEDENT], the parents of candidate belonged to "Nair Community" where as the said petitioner had given his caste as " Vettuvari". In case [ENTITY] Judgment wp1802.14+5 [ENTITY] (supra) , petitioner as also her father and sisters had caste certificates showing them as members of [ENTITY] Community".It also find that in [PRECEDENT] , the documents were manipulated to make a false claim. In present matters also, the [ENTITY] documents are consistent and there is no finding of any tampering or interpolation in relation thereto.
27. After perusal of Full Bench judgment mentioned supra, we find that merely because caste claim is invalidated, it cannot be said that the person has obtained caste certificate by playing fraud or by practicing falsehood. [ENTITY] or [ENTITY] are both Scheduled Tribes while [ENTITY] is a Nomadic Tribe recognized as such in [ENTITY]. Thus the said schedule tribes or nomadic tribe also enjoy social reservation. Though the upper caste [ENTITY] exists, when old documents of any [ENTITY] whether backward or forward, mention caste as [ENTITY], the affinity test is being used as the only solution. Relevance of the affinity test in such matters and its use to invalidate to caste claim has also been debated in several matters before this Court. Protection envisaged by the Full Bench is to the candidates like petitioners who applied for and got caste certificate as per law without resorting to any wrong or unfair means. Though their caste Judgment wp1802.14+5 certificates need to be canceled, they cannot be punished in the facts and circumstances further by denying protection in employment in terms of Full Bench judgment mentioned supra. Those whose caste claims either as [ENTITY] or [ENTITY] or [ENTITY] schedule tribe are invalidated, may be extended such concession of protection in employment, if it is seen that they have not participated in any falsehood or fraud, while obtaining that caste certificate.
28. As none of the petitioners before us is found to have acted with malice or indulged in any fraud or falsehood while obtaining caste certificate, we find them entitled to protection in employment in terms of the Full Bench judgment in case of [ENTITY] (supra).
29. Subject to petitioners filing an undertaking with the Registry of this Court and with their employer, within a period of 6 weeks from today, that neither he/she, nor his/her progeny shall claim any benefit and status as scheduled tribe candidate, the employment of petitioners shall be protected in terms of the Full Bench judgment mentioned above.
30. Subject to the undertaking as above, show cause notice dated Judgment wp1802.14+5 05.04.2013, issued to petitioner [ENTITY] in [CASE NUMBER] is accordingly quashed and set aside.
31. Subject to the undertaking as above, termination order dated 30.09.2013 issued by the respondent no.2 to petitioner Ku. [ENTITY] in [CASE NUMBER] is hereby quashed and set aside. She is reinstated back in service without any back wages but with continuity and consequential benefits.
32. In view of above discussion, Writ Petitions are partly allowed.
Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE JUDGE [ENTITY].