Case: State Of Maharashtra  Vs. Sanjay K. Nimje

Resolutions quoted in the preamble at Sr.No.1, the Caste Scrutiny Committee has come to the conclusion that Shri Sanjay Krushnarao Nimje does not belong to the Halba Scheduled Tribe hence his claim towards the same is held invalid. His caste certificate granted by the Executive Magistrate, Nagpur vide R.C.No.287/MRC-81/88-89, dated 1.9.88 is hereby cancelled confiscated." 12. It is accepted that an undertaking was filed by the respondent accepting the order passed by Appellant No. 3 - Committee before the High Court in the following terms: "The Petitioner is filing this pursis/undertaking that he accepts the order passed by the Respondent No.2 Scrutiny Committee and further undertakes that he or his legal heirs/progeny will not claim any benefit as a schedule Tribe Candidate either in education or in employment.In view of the Government Resolution dated 15.6.1995 and the judgment of this Honble Court, filed along with this petition as Annexure T, the services of the Petitioner be protected and he may be continued in service by giving specific directions to the Respondent employer." 13. Indisputably, on 7.12.1994, Koshtis were declared to be as Special Backward Class category. By reason of the said Government Resolution dated 15.06.1995, it was directed: "The reservation as aforesaid given to Special Backward Class category is applicable to direct recruitment and promotions and the Creamy layer criteria is not applicable to this category. The persons from this category who have entered into service and has obtained promotion on the basis of Schedule Tribe Certificates, they should not be reverted or terminated from service." 14. Respondent admittedly was appointed on 29.06.1995. Although he might have been selected on 15.06.1995, ex facie, the said Government Resolution dated 15.06.1995 would have no application in his case. 15. Once the respondent became disentitled to obtain the benefit of the said Government Resolution dated 15.06.1995, the 2000 Act will apply in his case. 16. The 2000 Act being a legislative Act would prevail over any Government Resolution. A Government Resolution may be beneficent in nature but it is well-settled that a benefit under a Government Resolution cannot be extended to a person who does not satisfy the conditions precedent thereof. 17. In any event, the effect of the judgment of this Court as also the provisions of a statute in the light of the constitutional provisions contained in Articles 341 and 342 of the Constitution of India cannot be diluted by reason of a Government Resolution or otherwise. 18. The extent of jurisdiction of the Caste Scrutiny Committee came up for consideration before this Court in State of Maharashtra and Others v. Ravi Prakash Babulalsing Parmar & Anr. [2006 (10) SCALE 575 : 2007 (1) SCC 80 ] wherein this Court categorically held that the Caste Scrutiny Committee has the requisite jurisdiction in relation thereto, stating: "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." 19. We may also notice that ordinarily a person, who has obtained appointment on the basis of a false certificate, cannot retain the said benefit. [See Bank of India and Another v. Avinash D. Mandivikar and Others, (2005) 7 SCC 690 , Ram Saran v. I.G. of Police, CRPF & Ors. 2006 (2) SCALE 131 and The Superintendent of Post Offices & Ors. v. R. Valasina Babu, Civil Appeal No. 5868 of 2006, disposed of on 14.12.2006] 20. In a situation of this nature, whether the court will refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India or not would depend upon the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate v. State of Maharashtra & Ors. [2006 (8) SCALE 503 ].21. From the order of the Caste Scrutiny Committee itself, it is evident that the father of the respondent was shown in the primary school register as belonging to Koshti caste. They were not members of Scheduled Tribe. They were not even Koshti-Halbas. It may be true that an authoritative pronouncement in this behalf came for the first time in Milind (supra), but it is not a case where the respondent pleaded and proved bona fide.22. Respondent was not the member of a tribe. If a person is not a member of a tribe, the question of the said tribe being a scheduled tribe would not arise.23. Thus, it is a clear case where the provisions of the 2000 Act would apply. We see no reason as to why the statutory provisions should not be directed to apply in the instant case. It may be that at one point of time, keeping in view of the stand taken in particular case, some indulgence had been shown. Indulgence might have been shown to the students or who were found to have acted bona fide but the same would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative act.24. Our attention was drawn to an order dated 12th December, 2000 passed in Civil Appeal No. 3375 of 2000, but it does not appear the provisions of the 2000 Act had been brought to the notice of this Court therein. Furthermore, we are not aware as to the fact involved therein and, thus, the same cannot be treated to be a precedent.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. In a situation of this nature, whether the court will refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India or not would depend upon the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate v. State of Maharashtra & Ors. [2006 (8) SCALE 503 ].21. From the order of the Caste Scrutiny Committee itself, it is evident that the father of the respondent was shown in the primary school register as belonging to Koshti caste. They were not members of Scheduled Tribe. They were not even Koshti-Halbas. It may be true that an authoritative pronouncement in this behalf came for the first time in Milind (supra), but it is not a case where the respondent pleaded and proved bona fide.22. Respondent was not the member of a tribe. If a person is not a member of a tribe, the question of the said tribe being a scheduled tribe would not arise.23. Thus, it is a clear case where the provisions of the 2000 Act would apply. We see no reason as to why the statutory provisions should not be directed to apply in the instant case. It may be that at one point of time, keeping in view of the stand taken in particular case, some indulgence had been shown. Indulgence might have been shown to the students or who were found to have acted bona fide but the same would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative act.24. Our attention was drawn to an order dated 12th December, 2000 passed in Civil Appeal No. 3375 of 2000, but it does not appear the provisions of the 2000 Act had been brought to the notice of this Court therein. Furthermore, we are not aware as to the fact involved therein and, thus, the same cannot be treated to be a precedent.