1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR WRIT PETITION NO: 2864/2007 (Prabhakar s/o Anandrao Umredkar vs. State of Maharashtra and others ) ------------------------------------------------------------------------------------------------ Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions and Registrar's orders. ................................................................................................................................... Mr. S.R. Narnaware, Adv. for petitioner CORAM: A .M.KHANWILKAR AND R.C.CHAVAN,JJ. DATED: 05th May, 2008. *** 1. Heard counsel for the petitioner at length. 2. Counsel was at pains to persuade us to take a view that since the issue is referred to the Full Bench, this Court should defer hearing of the present Petition. In our considered opinion, the reference order passed by this Court in the case of Ganesh vs. State & others dated 21st February, 2008 in Writ Petition No. 725/2007 need not detain us. We have considered that aspect in our order dated 22nd April, 2008, while disposing of Writ Petition No.6636/ 2005 in Shri Shrikant vs. State of Maharashtra and others. 3. The principal reason for taking that view is that we are bound to follow the latest decision of the three Judges Bench of the Apex Court in the case of Union of India vs. Dattatraya and others reported in 2008 (2) Mh.L.J . 720. Admittedly, when the Division Bench referred the case of Ganesh ( supra ) to the Full Bench, it did not have the advantage of the Apex Court 2 decision in the case of Dattatraya ( supra ) 4. The issue on hand is authoritatively decided by the Apex Court in the said decision. The Apex Court has adverted to other relevant decisions while concluding that the since the caste certificate is held to be invalid, the person who has secured employment on the basis of such false caste claim cannot be permitted to continue in service as that would affect and deprive a legitimate candidate belonging to Scheduled Tribes/castes, of employment. The Court went on to observe that the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled by a candidate who is entitled to the benefit of reservation. 5. To get over this position, counsel for the petitioner would contend that the decision in Dattatraya's case is per incuriam inasmcuh as the sweep of observations in para no.36 of the decision in Miind Katware's case reported in 2001 (1) Mh.L.J ./ (SC) page 1, have not been considered by three Judges Bench. We are unable to accept this submission. The decision in Dattatraya's ( supra ) case has specifically referred to the opinion in Milind Katware's case in that behalf and proceeded to answer the issue which we are called upon to consider in the present Writ Petition. 6. Counsel for the petitioner would, however, rely on the exposition of the Apex Court in the case of (2001) 4 SCC 443 in the case of Bharat Petroleum 3 Corporation Limited vs. Mumbai Shramik Sangh and others. We see no merit in this submission. As aforesaid, the three Judges' Bench in the Dattatraya's case has adverted to the exposition of Milind's case of five Judges' Bench and then proceeded to explain the said decision. It is not a case of disagreement with the view expressed by the Constitution Bench. In any case, the decision in Dattatraya's case is of three Judges' Bench which is binding on this Court, being latest in point of time. We would prefer to follow the said decision for considering the point in issue raised in this petition. 7. The counsel for petitioner was at pains to rely on the decision in the case of Punjab National Bank vs. Vilas Bokade reported in 2007 (3) Mh.L.J . 805 Indeed, this decision deals with one of the issues raised by the petitioner in the present petition. Even in this decision, reference is made to the Government Resolution dated 15th June 1995 as also the decision in the case of Milind's case to conclude that it would protect the cases, such as that of the petitioner. However, as aforesaid, the decision of the Apex Court in Dattatraya's case, being three Judges' and latest in point of time, we have no hesitation in disposing of the present petition, applying the ratio stated therein. 8. It will be apposite to reproduce the dictum of the Apex Court in the case of State of Maharashtra and others vs. Raviprakash Parmar and another reported in 2007 (2) Mh.L.J . (SC) 250, which reads thus; 4 “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 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.” (emphasis supplied) The above quotation is reproduced with approval in the case of State vs. Sanjay Nimje reported in 2007 (3) Mh.L.J . 795 (SC) by the Apex Court. In this decision, the Apex Court has adverted to other decisions of the same Court, which reinforces the view expressed in the case of Dattatraya (supra) that employment secured on such false claim cannot be continued. 9. In the present case, it is not in dispute that the petitioner has been appointed on the basis of caste certificate claiming to be “'Halba'” Scheduled Tribe and was appointed as Stenographer -B” by the Respondent No.3 ( Hindusthan Aeronautics Ltd. - A Govt. of India Undertaking) . The caste certificate has been invalidated 5 by the Caste Scrutiny Committee, holding that the petitioner does not belong to Scheduled Tribe. The said order has attained finality. The petitioner has accepted the said order. The limited relief claimed in the present petition is for setting aside the order passed by the Respondent No.3 dismissing the petitioner by imposing punishment under order dated 1st April,2006 for having secured employment on the basis of such invalid caste claim. The consequential relief claimed in the writ petition is for reinstatement of the petitioner who has been dismissed from service. As aforesaid, the view taken by the Apex Court in Dattatrya's case ( supra ) applies proprio vigore to the fact-situation of the case. For this reason, we dismiss this Petition. JUDGE JUDGE sahare