1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE WRIT PETITION NO. 1798 OF 2001 Smt. Sunanda Kundan Dixit @ Sunanda Jagannath Ruikar .. Petitioner Vs. State of Maharashtra and ors. ..Respondents Mr. R.K. Mendadkar for petitioner. Mr. P.K.Rele, Senior Counsel with Mr. R.P. Rele, Mr. Vinod Tayade i/by Mr. Piyush Shah for respondent no.3. Mr. S.D. Rayrikar, AGP for respondent nos.1, 2 and 4. CORAM: B.H.MARLAPALLE & SMT.ROSHAN DALVI, JJ. November 21, 2009. P.C.: 1. The facts, leading to the appointment of the petitioner with the Syndicate Bank pursuant to her selection in October, 1988 for the post of Clerk, have already been set out by us in Writ Petition No.2802 of 2000, in which she had challenged the order passed by the Scrutiny Committee, invalidating her claim that she belongs to “Mahadeo Koli” scheduled tribe. After the Scrutiny Committee passed the invalidation order on 23/8/1999, Writ Petition No. 2802 of 2000 was admitted but the decision of the Scrutiny Committee was not stayed by this court. The Bank, therefore, issued a charge- sheet to the petitioner on 29/12/1999 and a Departmental Enquiry was ordered against her on the ground that she had sought employment on the basis of a false tribe’s claim. 2 On receipt of the Inquiry Officer’s report, a show cause notice was issued to the petitioner on 14/6/2000 and by a further communication dated 30/8/2000 she was called upon to appear before the Disciplinary Authority on 7/9/2000 so as to argue as to why she should not be imposed the proposed punishment of dismissal from service. Finally, on 8/9/2000 the Bank passed the order dismissing her from service and the same is under challenge in this petition filed under Article 226 and 227 of the Constitution. 2. As noted earlier, in Writ Petition No. 2802 of 2000, filed by the petitioner, we have upheld the decision of the Scrutiny Committee and the consequences from the same decision must follow and impact the decision in this petition, as well. In the case of Bank of India and anr. vs. Avinash D. Mandivikar and ors. [(2005) 7 SCC 690] a similar issue had come up before the Supreme Court and it was held that once the caste claim was decided against the employee/appointee, she/he could not claim to remain in employment when such an employment/appointment was against a post reserved for that particular category. In the case of State of Maharashtra vs. Ravi Prakash Babulalsing Parmar [(2007) 1 SCC 80] the Supreme Court stated as under: “The makers of the Constitution laid emphasis on equality amongst citizens. Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution 3 by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter.” While reiterating the same view, the Supreme Court in the case of Raju Ramsing Vasave vs. Mahesh Deorao Bhivapurkar and ors. [(2008) 9 SCC 54] stated that to fulfill constitutional norms, a person must belong to a tribe before he can stake his claim to be a member of notified scheduled tribe. When an advantage is obtained by a person in violation of constitutional scheme, a constitutional fraud is committed. In the case of Lillykutty vs. Scrutiny Committee, SC & ST and ors. [(2005) 8 SCC 283], the Supreme Court held that when a person who is not a member of a Scheduled Caste or a Scheduled Tribe obtains a false certificate with a view to gain undue advantage to which he or she was not otherwise entitled to, would amount to commission of fraud and fraudulent acts are not encouraged by the courts. 3. In the case of Union of India vs. Dattatray [(2008) 4 SCC 612] the Supreme Court held that, when a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to Scheduled Caste/Tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled 4 up by a candidate who is entitled to the benefit of reservation. However, in the case of Raju Vasave the Supreme Court, by invoking its power under Article 142 of the Constitution of India and keeping in view the long history of the case and its backdrop and this court had allowed the Writ Petition filed by Mahesh Bhivapurkar, the respondent no.1 therein, it observed that it would not be proper to disturb very appointment but it declared that his appointment shall be treated to be that of a general category in the matter of promotion or otherwise. Such a protection, in the instant case, cannot be granted when the respondent – Bank has taken due steps from time to time either to call upon the petitioner to submit her caste verification certificate and on completion of the scrutiny proceedings and after her tribe’s claim was rejected, has followed the principles of natural justice by conducting a Departmental Enquiry and while Writ Petition No. 2802 of 2000 was admitted by this court against the order of the Scrutiny Committee, there was no stay granted to the said order. Hence the petitioner cannot claim equity and the said doctrine cannot be made applicable to her. The impugned dismissal order is solely based on the ground that the petitioner does not belong to the scheduled tribe and while issuing the said dismissal order, due process, as set out under the service Rules, has been complied with. 3. Hence, no interference is called for in the impugned order of dismissal and consequently the petition is dismissed. Rule is discharged. No order as to costs. (SMT. ROSHAN DALVI, J.) (B.H. MARLAPALLE,J.)