1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3388 OF 2008 Ashok Bhaskar Chaulkar 805, Krishna Amrut Coop.Hsg.Socy, MagiriKoliwada, Thane. Dist.Thane .. Petitioner Versus 1. Central Bank of India Through its General Manager(HRD), Central Office, Chandramukhi, Nariman Point, Mumbai-21 2. Assistant General Manager, Central Bank of India, North Mumbai Regional Office, NCL Bandra Coop.Hsg.Socy, Building No.C, 3rd, Floor, Bandra(East), Mumbai 400 051 3. The State of Maharashtra Through its Secretary, General Administration Dept. Mantralaya, Mumbai-32 .. Respondents Mr. R. K. Mendadkar, for the petitioner Mr. Lancy D'souza with Mr. V.M. Parkar for respondent No.1. CORAM:V. C. DAGA, & MRS. MRIDULA BHATKAR,JJ. DATED: 2nd March, 2009 J U D G E M E N T (Per Mridula Bhatkar,J.) 2 1. This petition is filed by the petitioner seeking writ of mandamus or any other writs to cancel the order of his termination dated 2.3.2007, passed by the Respondent No.2- Assistant General Manager,Central Bank of India and the letter dated 30.1.2008 issued by the respondent no.1 and seeking direction against the respondents to reinstate the petitioner. 2. Factual Matrix : The petitioner was appointed in the respondent No.-1 Central Bank on 20.3.1983 as a Clerk from the reserved category. The petitioner, at that time, was having Caste Certificate issued by the competent authority declaring him Mahadeo Koli- Schedule Tribe. After 7 years of service, the petitioner was given promotion to the Post of Junior Manager, Grade-I. However, upon reference made to the Schedule Tribe Caste Certificate Scrutiny Committee for verification, the caste certificate of the petitioner was invalidated by the said committee vide its order dated 8.1.2007. The respondent No.2 acted upon it and issued order of termination of the petitioner on 2.3.2007. The petitioner filed Writ petition No.2710 of 2007 and the said petition was withdrawn with liberty to make representation to the Respondent No.1 Bank. With the result, the order of the scrutiny committee invalidating cast claim of the petitioner become final and conclusive and it remains in operation. However, the said representation made by the petitioner was rejected by respondent No.1 Bank vide its letter dated 30.1.2008. Hence, this petition. This order of rejection is a subject matter of challenge in this petition filed under Article 226 of the Constitution of India. 3 3. Submissions : Learned counsel appearing for the petitioner has submitted that the petitioner belongs to Mahadeo Koli which falls under Scheduled Tribe, reserved category and, therefore, his recruitment in the Bank was legal. Learned Counsel has further submitted that assuming that the petitioner is not 'Mahadeo Koli' but is a simiplicitor 'Koli', yet the termination is illegal. The submission of the learned counsel is entirely based on the Government of Maharashtra Resolution No. BCC/ 1094/CR.68/94/16B, dated 15th June, 1995, by which the service of the person who have entered service or promoted on the basis of Cast reservation, prior to 1995 , were sought to be protected. In support of his submission, the learned advocate placed reliance on the Judgment of the Hon'ble Supreme Court in the case of Panjab National Bank & another Vs. Vilas Govndrao Bokade & another in Civil Application No. 1548 of 2007. 4. On our query, the learned Advocate of the petitioner admitted that the petitioner belongs to Koli and not Mahadeo Koli. By this GR, issued by the Government of Maharashtra, the recruitment and the promotion, if made earlier to 1995, are protected. The petitioner was appointed on 20.3.1983. He claims to be protected under this resolution. As already stated, the subject Resolution is issued by the Government of Maharashtra , where as the petitioner was working in Central Bank of India ( a Central Government Undertaking. He was recruited through the Banking Service Recruitment Board in 1983. 4 5. The Issue : The issue thus, remains is : Whether the Resolution of the State Government is applicable to the employees of public sector undertaking of the Central Government petitioner and the petitioner is entitled to claim benefit thereof ? 6. Reasonings : The case of Punjab National Bank (supra), is a Division Bench Judgement of the Apex Court. The Hon'ble Lordships constituting the Bench have given independent / separate reasonings. The appeal was dismissed for the separate reasons recorded therein. The Hon'ble Justice Seema (as he there was) has taken a view that the resolution dated 15th June, 1995 was applicable to the service of Government/Semi Government and Boards, Municipalities, Municipal Corporation, District Councils, Co-operative Banks and government undertakings etc. The Hon'ble justice Shirpurkar, while considering the issue, did not record positive findings with regard to the applicability or non-applicability of the GR dated 15.6.1995 and relied on the State of Maharashtra Vs. Milind & others, ( 2001 (II) Mh.LJ (SC)1 in support of his view and observed as under:- “5. It is not necessary for us to consider the question as to whether protection provided in the Government Resolution dated 15.6.1995 is applicable to a Bank employee like the respondent since the protection is provided in Milind' s case in no uncertain terms.” (Emphasis supplied) 7. In the above Judgement of Punjab National Bank, Justice Sema (as he there was) has recorded a positive finding that the Government Resolution dated 15.6.1995 is applicable to a 5 Central Government undertaking, whereas the Judgement of Justice Sirpurkar is silent on this issue as such on the concept of sub-silentio, the said decision is not an authority on the question of applicability of the Maharashtra Government Resolution to the Central Government Undertakings. Hence, the reliance on this judgement placed by Mr. Mendadkar, to claim benefit of the said resolution is misplaced. 8. In the subsequent judgement in the case of - Additional General Manager, Human Resource, BHEL Ltd. Vs. Suresh Ramkrishna Burde, reported in 2007 (4) AIR Bom. R 180, the two Judge Bench of the Hon'ble Apex Court has directly dealt with the issue, in para 14 of the said ruling, holding that- “14. Learned counsel for the petitioner also sought to take some benefit of a certain Government Order dated 15.6.1995 issued by the State of Maharashtra wherein some reservation in service is provided to members of Special Backward class. In our opinion, the respondent can get no benefit from the same as he is not an employee of the government of Maharashtra but is an employee of a public sector undertaking of Central government and he is secured the appointment long before on 31.5.1982. (Emphasis added) 9. In view of the aforesaid law laid down by the Apex Court, we hold that the Government Resolution of 15.6.1995 is applicable to employees of the Government of Maharashtra alone. The petitioner was an employee of the Central Bank of India, an undertaking of the Central government, as such it is not applicable to the case of the petitioner. 6 10. The sequence and the narration of the facts above leaves little doubt in our mind that caste certificate on the basis of which the petitioner got employment was false to his knowledge. In this backdrop, the question for our consideration would be whether because of the employee having rendered services to the employer for a period of more than 25 years, would be entitled for appointment, when admittedly in the first instance, the petitioner was not eligible for said appointment. 11. The aforesaid issue is no longer resintegra. The implication of misuse of benefits conferred by the Constitution on a particular section or sections of the society were highlighted by the apex Court in the case of Kumari Madhuri Patil & Anr. Vs. Additional Commissioner Tribal Development & Ors. (1994) 6 SCC 241. It was said that 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 appointments to office or posts under a State for want of social status certificate. Therefore, with a view to streamline the procedure for the issuance of social status certificates their scrutiny and their approval, the Court issued as many as fifteen directions. One of the directions so issued, was that as soon as the finding is recorded by the Scrutiny Committee, holding that the certificate obtained was false, on its cancellation 7 and confiscation simultaneously, it should be communicated to the educational institution concerned, or the appointing authority with a request to cancel the admission or the appointment. Thereupon, the admission or the appointment shall be cancelled without any further notice to the candidate and the candidate shall be debarred from further study or continue in office in a post. 12. Similarly, the plea regarding rendering of services for a long period has been considered and rejected in a series of decisions of the Apex Court and the Apex Court deem it unnecessary to launch on exhaustive dissertation on principles in this context. It would suffice to state that except in a few decisions, where the admission / appointment was not cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment for the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. An act of deliberate deception with a decision to secure something, which is otherwise not due, tantamounts to fraud. Fraud is a conduct either by letter or words, which induces the other person or authority to take a 8 definite determinative stand as a response to the conduct of the former either by words or letter. (See. R.Vishwanatha Pillai Vs. State of Kerala & Ors. (2004) 2 SCC 105, Bank of India & Anr. Vs. Avinash D.Mandivikar & Ors. Addl.General Manager, (2005) 7 SCC 690, Derry Vs. Peek (2005) 7 SCC 605, Ram Preeti Yadav S. U.P.Board of High School and Intermediate Education & Ors. (2003) 8 SCC 311 and Bhaurao Dagdu Paralkar Vs. State of Maharashtra & Ors. (2005) 7 SCC 605) 13. In Ram Chandra Singh Vs. Savitri & Ors. (2003) 8 SCC 319 the Apex Court had observed that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine. 14. In State of Maharashtra and Ors. Vs. Sanjay K.Nimje, 2007(2) SCALE 214, it was held that a person cannot get a benefit to which he is not otherwise entitled to. 15. Recently, in State of Maharashtra & Ors. Vs. Ravi Prakash Babulalsing Parmar & Anr., (2007) 1 SCC 80 dealing with a similar situation, the Apex Court has observed that : “The makers of the Constitution laid emphasis on equality amongst citizens. The 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 by obtaining the benefits of reservation and other benefits provided under the Presidential Order 9 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.” 16. Having considered the matter in the light of the aforestated legal position, in our judgment, the decision of the High Court is untenable. As noted supra, the employee having accepted the finding of the Scrutiny Committee, holding that the caste certificate furnished by the employee was false, the very foundation of his appointment vanished and his appointment was rendered illegal. His conduct renders him unfit to be continued in service. Under these circumstances, there is absolutely no justification for his claim in respect of the post merely on the ground that he had worked on the post for over twenty years. The post was meant for a reserved candidate but she usurped the same by misrepresentation and deception. In our opinion, the fact that caste certificate was referred to the Scrutiny Committee for verification after more than ten years of his joining the service and a long time was taken by the Scrutiny Committee to verify the same is of no consequence inasmuch as delay on both the courts does not validate the caste certificate and the consequent illegal appointment. 17. We are also unable to persuade ourselves to agree with learned counsel for the employee that in the absence of any finding of fraud having been played by the employee, the order of 10 the High Court is equitable and should not be interfered with. As noted above, the selection of the employee was conceived in deceipt and, therefore, could not be saved by equitable consideration. 18. In view of the foregoing discussion, the petition is dismissed in limine with no order as to costs. ( MRIDULA BHATKAR, J. ) (V. C. DAGA, J.) jpc/