B. H. KHAWAS versus UNION OF INOIA & OTHERS
[2016] 3 S.C.R. 773, Supreme Court of India, 2016
Outcome: Dismissed (Dismissed)
Segment: Facts
[2016] 3 S.C.R. 773 
B. H. KHAWAS 
V. 
UNION OF !NOIA & OTHERS 
(Civil Appeal No. 9182of2012) 
AUGUST 12, 2016 
[ADARSH KUMAR GOEL AND A.M. KHANWILKAR, JJ.) 
Service Lm1' - Termination of provisional appoinlment prior lo 
confirmation - Validily - Appellant provisionally appointed against 
post reserved for Scheduled Tribe, subject to verification of caste 
cert!fica/e - Caste Cert!flcate Scruliny Committee opined /hat 
appellant did not belong to "Halba" Scheduled Tribe as claimed 
by him, but belonged lo cas/e "Koshti" which was not a Scheduled 
Tribe - Accordingly, department terminated the appointment of 
appellant on ground /hat he did no/ belong lo Scheduled Tribe -
Held: Appointment of appellant was provisional and subject to 
verification of his caste claim of Halba, through proper channel -
Appoinlment in terms of lhe appointment let/er, was to a temporary 
{'Ost and was so treated by the department and thus was not final -
Nothing brought on record by the appellant to show that his post 
1vas treated as c011firmed by the department before issuance of 
termination order 
-High Court right in restoring the termination 
orde1: 
Dismissing the appeal, the Court 
HELD: 1.1 The moot question in the present case is: 
whether the subject appointment of the appellant to the post of 
"Chemical Examiner" in Customs and Central Excise 
Department has in fact become final? Unlike the confirmed 
appointment of the appellant to the post of Assistant Chemist, in 
the Geological
Survey of India, his appointment to the post of 
"Chemical Examiner" in the Customs and Central Excise 
Department was provisional and subject to verification of his 
caste claim of "Halba". It was not treated as final by the 
Department till the impugned termination order was issued. 
Nothing has been brought on record by the appellant to show 
that his appointment on that post was in fact treated as confirmed 
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[2016] 3 S.C.R .. 
by the con<;.erned Department, before issuing the impugned order 
of termination. [Para 9) [780-D-F) 
l.2. Admittedly, the appellant was appointed to the post of 
Chemical Examiner in the Customs and Central Excise 
Department, pursuant to the appointment letter. Condition No. 
(vii) therein unambiguously mentioned that as the appointment 
of the appellant was against the post reserved for Scheduled 
Tribes, it was provisional and subject to verification of his caste 
certificate through a proper channel. The caste certificate of the 
appellant was already under scrutiny in terms of reference made 
by the Controller General, of the Indian Bureau of Mines, Nagpur, 
where the appellant was appointed in similar manner on the post 
reserved for Scheduled Tribes. Appointment of the appellant as 
Chemical Examiner Grade-I in Customs and Central Excise 
Department in terms of appointment letter, was to a temporary 
post, on provisional basis and subject to verification of his caste 
certificate through a proper channel. [Para 10) [780-H; 781-A-D] 
State of Maharashtra vs. Mi/ind and Others (2001) 1 
SC<; 4: 2000 (5) Suppl. SCR 65 - distinguished. 
Kavita Solu~1ke· v. State of Maharashtra and Ors. (2012) 
8 $CC 430 : 2012 (7) SCR 251; Shalini v. New English ,. 
High School Association and Others (2013) 16 SCC 
526 : 2013 (12) SCR 807; R. Unnikrishnan and Another 
v. T(K. Kahanudevan and Others (2014) 4 SCC 434 :_,
2014 (1) SCR 350 - held inapplicable. 
· 
Union of India v. Dattatray s/o Namdeo ¥endhekar & 
Ors. (2008) 4 SCC 612 : 2008 (2) SCR 1096 - referred 
to. 
1.3 Appellant not entitled for any relief on the finding that 
his appointment as Chemical Examiner in the Customs and 
Central Excise Department had not attained finality. The Scrutiny 
G 
Committee had. unambiguously held that the appellant does n,ot 
belo.Pg to ."Halba" community, a notified Scheduled Tribe in 
Maharashtra. High Court was right in allowing the writ petition 
filed by the Department restoring the termination order. (Para 
13) (782-E, GJ 
H
B.H.KHAWAS v. UNION OF INDIA & OTHERS 
Case Law Reference 
2000 (S) Suppl. SCR 6S 
distinguished 
Paras 
2008 (2) SCR 1096 
referred to 
Paras 
2012 (7) SCR 2Sl 
held inapplica hie 
Para 6 
2013 (12 ) SCR 807 
held inapplicable 
Para6 
2014 (1) SCR 350 
held inapplicable 
Para6 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9182 of 
2012. 
775 
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From the Judgment and Order dated 08.02.2012 of the High Court 
C 
of Judicature at Bombay in the Writ Petition No. 7101 of2005. 
Rakesh K. Khanna, Sr. Adv., Aseem Mehrotra, Mrs. (Dr.) Rashmi 
Khanna, Ms. Shefali Jain, Ms. Anandita, Ms. Preeja Nair, Rajesh Prasad 
Singh, Ad vs. for the Appellants. 
Yashank Adhiyaru, Sr. Adv., Raj iv Nanda, Ms. Rekha Pandey, B. 
K. Prasad, Advs. for the Respondents. 
The Judgment of the Cou11 was delivered by 
A.M. KHANWILKAR, J. 1. This appeal .challenges the judgment 
of the Division Bench of the High Court of Judicature at Bombay in Writ 
Petition No. 7101 of 1005 dated B'" February 2012. The High Court 
reversed the decision of the Central Administrative Tribunal, Bombay 
Bench at Mumbai in OA No. 419 of2004, dated 3rct March, 2005. The 
Tribunal had allowed the original application filed by the appellant whilst 
setting aside the termination order dated 81" June, 2004 and instead had 
directed the respondents to re-instate the appellant in service. 
2. Briefly stated, the appellant was appointed as "Chemical 
Examiner Grade-I" in the Customs and Central Excise Department in 
the pay scale
of Rs. 3000-100-3500-125-4500, vide appointment letter 
dated 161" June, 1995, subjectto fulfilling te11115 and conditions 1nentioned 
herein. As the appellant was appointed against the vacancy reserved for 
Scheduled Tribe, Condition (vii) of the said Appointment Letter is of 
some relevance. It reads thus:-
"(vii). In case you belong to Scheduled Caste/Tribe, the 
appointment is provisional and is subject to verification of 
Scheduled Caste/Tribe certificate through proper channels 
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and if on verification, your claim to belong to Scheduled Caste 
or Scheduled Tribe, as the case may be, is found to be false. 
vour services will be terminated forthwith without assigning 
anv reason and without prejudice to such .fiirther action that 
may be taken under the lndian penal Code for production of 
false cert(ficate." 
(emphasis supplied) 
3. Before joining the post of Chemical Examiner in the Customs 
and Central Excise Department on 21 ''November. 1995, the appellant 
had worked in other Departments of the Government of India; 011 being 
selected through the Union Public Service Commission, to the post of 
"Senior Technical Assistant .. in the Indian Bureau of Mines from 
14.02.1985 to 12.05.1986; as an ''Assistant Chemist (Group B Gazetted)" 
in the Geological Survey of India between 15 .05.1986 to 31 .05 .1989; as 
"Chemist (Groups A Gazetted)" in the Indian Bureau of Min es between 
05.06.1989 up to 12.04.1994; and as "Deputy Director (Ind. Hygiene)" 
in the Directorate General Factory Advice Services and Labour Institutes 
from 13 .04.1994 to 10.11 .1995. The appellant was declared confirmed 
in the grade of "Assistant Chemist" w.e.f. 15 .05 .1988 vi de notification 
dated 05.05.1995. All these appointments were made against the 
Scheduled Tribe reserved category. However. lastly. the appellant joined 
the Customs and Central Excise Depa1tment as ·'Chemical Examiner 
Grade I"', from 21
"November. 1995 pursuant to appointment order dated 
16'" June, 1995. He was working on that post till his services were 
terminated vide order dated 8111 June. 2004. consequent to the decision of 
the Caste Certificate Scrutiny Committee -- that the appellant belonged 
to caste "Koshti". which is not a Scheduled Tribe in the State of 
Maharashtra. 
4. When the appellant was appointed in the Indian Bureau of Mines. 
as Chemist in Group A. the said Department vi de letter dated 13'1 January, 
1989 had referred his case for Caste Certificate scrutiny to the Caste 
Certificate Scrutiny Committee, Nngpur. The Scrutiny Committee after 
due enquiry answered the reference vide order dated 16'" January, 200 I. 
It found that the appellant belongs to Caste "Koshti". which is not a 
Scheduled Tribe. That decision of the Scrutiny Committee was challenged 
by the appellant by way of a Writ Petition No. 3 76 of 2001, before the 
High Cowt of Judicature at Bombay, Nagpur Bench at Nagpur. as having 
been passed in violation of procedural compliances. That contention
B.H.KHAWAS v. UNION OF INDIA & OTHERS 
[A.M. KHANWILKAR, J.] 
commended to the High Court, as a result of which the decision of the 
Scrutiny Committee was quashed and set aside and the matter was 
remanded to the Scrutiny Committee for redetermination of the claim 
afresh. After fresh enquiry in terms of the High Court decision, vide 
order dated I O•h February, 2003, the Scrutiny Committee finally opined 
as follows:-
" After considering all the documents and.facts & in exercise 
of the powers vested vide Government Resolution, 
Corrigendum and Maharashtra Act quoted in the preamble 
at Sr. No. I to 3 above. the Caste Scrutiny Committee has come 
to the conclusion that Shri Bhojraj Haribahu Khawas does 
not belong to the Halba. Scheduled Tribe and as such his 
claim towards the same is held invalid. And hLv caste Certificate 
of his belonging to "Halba ", Scheduled Tribe granted by the 
Executive Magistrate, Nagpur Vide R.C. No.181/MRC-81181/ 
82, dated 14.9.81 is hereby cancelled." 
5. On receipt of the said order of the Caste Certificate Scrutiny 
Committee, the appellant made representations to the Chairman, Central 
Board of Excise and Customs on 20.01.2004 and 21.0 I .2004. The 
substance of the representations was founded on the caste certificate 
issued by the Executive Magistrate, dated 14'" September, 1986, which, 
the appellant asse1ied was obtained bona- fide and in good faith on the 
basis of the school record indicating that the appellant belongs to Caste
"Halba", a notified Scheduled Tribe in Maharashtra. The appellant fi.niher 
asserted that he did not furnish false information of his caste; and more 
·so the question whether or not "Koshti" caste belongs to "Ha Iba" 
Scheduled Tribe was subject matter of immense debate and was 
conclusively answered by the Constitution Bench of the Supreme Court 
in the case of State of Maharashtra vs. Milind and Othcrs1, decided 
on November 28, 2000. The appellant thus contended that his appointment 
already made on the basis of the caste certificate issued prior to that 
decision was protected even in terms of the dictum of the Constitution 
Bench in Milind's case. This stand of the appellant, however, did not 
find favour with the Department. The Government oflnclia, Ministry of 
Finance, Depa1iment of Revenue, New Delhi instead issued an Office 
Order No. F.No.A-12026/7 /91-Ad.ll-B, elated S•h June. 2004, cancelling 
the appointment of the appellant on the ground that the appellant does 
1 r2001) 1 sec .1 
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not belong to Scheduled Tribe. This decision was the subject matter of 
challenge before the Central Administrative Tribunal by way of Original 
Application No. 491 of2004. The Tribunal acceded to the contention of 
the appel !ant that the appointment made prior to the decision in M ii ind 's 
case will have to be protected. The objection of the respondents that 
the oQservation of the Constitution Bench in Milind's case was not 
applicable to "appointments" was rejected. The Tribunal noted that, in a 
large number of cases, the Bombay High C(lurt has protected the 
appointments of persons belonging to caste "Koshti" following the dictum 
of the Constitution Bench in Milind's case. Accordingly, the Tribunal 
allowed the original application and directed re-instatement of the 
appellant in service by setting aside the order of termination. The 
operative order of the Tribunal reads thus: 
"On the whole, Jlle think that applicant has to he given similar 
benefit as has been given by the Hon 'hie High Court of 
Bombay in a number of cases. We direct the respondems to 
reinstate the applicant as his services were terminated only 
on the limited ground of his not belonging to' Halba SIT 
Community. The order dated 8.6.2004 is quashed and set 
aside. 
We, however. make it clear that neither the applicant 
nor his children ll'ill claim any fitrther benefit available to a 
SIT candidate and they shall he treated as
belonging to Open 
Category It is also clarified that the respondents are free to 
take any action against the applicant regarding his service 
for any other reasons than his not belonging to Ha/ha SIT 
community. " 
Against this decision, the Department filed a writ petition before 
the High t:ourt, being Writ Petition No. 7101 of2005. The Division Bench 
of the Bombay High Court, relying on the decision of three Judges' 
Bench of this Collli in the case of Union of India vis. Dattatray s/o 
Namdco Mendhekar and Ors2, allowed the writ petition and restored 
the termination order dated 8'h June, 2004. The appellant has, therefore, 
approached this Court by way of present appeal. 
6. The principal argument of the appellaM is that the decision of the 
Constitution Bench in Milind's case itself protects all appointments which 
have become final. The decision of the three Judges' Bench relied by 
H 
'(2008) 4 sec 612
B.H.KHAWAS v. UNION OF INDIA & OTHERS 
[A.M. KHANWILKAR, J.] 
, 
the High Court in the impugned judgment has been considered and 
explained in the subsequent decisions in the case ofKavita Solunke v/ 
s State of Maharashtra and Ors.3, Shalini v/s New English High 
School Association and Others' and in R. Unnikrishnan and 
Another v/s V.K. Kahanudevan and Others 5• According to the 
appellant, following the consistent view of this Court, the appointment, 
even in the case of the appellant, should be protected. For, the claim of 
the appellant was not a false claim, but a bona fide claim founded on 
the entries in the school record and the certificate issued by the Executive 
Magistrate. It is not a case of false or dishonest claim set up by the 
appellant; or for that matter fa~rication of records or reliance placed on 
fraudulent caste certificate. 
7. Per contra, the respondents contend that the principle stated in 
the subsequent decisions of this Court will be ofno avail to the appellant. 
In that, the appel I ant was appointed on a provisional basis and subject to 
verification of his caste certificate through a proper channel. The Caste 
Certificate Scrutiny Committee having finally considered the.factual 
position and opined that the appellant does not belong to caste" Halba", 
a notified Scheduled Tribe but belongs to caste "Koshti", was not entitled 
to continue on the post reserved for Scheduled Tribes. 
8. Before we proceed further, it would be apposite to
reproduce 
the relevant portion from the decision of the Constitution Bench, in Milind's 
case which is the fulcrum for claiming protection by the appellant. In 
paragraph 38, in that decision, the Comt observed thus:-
"38. Respondent 1 joined (he medical course for the year 
1985-86. Almost 15 years have passed by, now. 
We are told 
he has already completed the course and maybe he is 
practicing as a doctor. In this view and at this length of time 
it is for nobody s benefit to annual his admission. Huge 
amount is spent on each candidate for completion of medical 
course. No doubt, one Scheduled Tribe candidate was 
deprived of joining medical course by the admission given to 
Respondent 1. If any action is taken against Respondent 1, it 
may lead to d~priving the service of a doctor to the society 
on whom public money has already been spent. In these 
.- '(2012) s sec 430 
• (2013) 16 sec 526 
'(2014) 4 sec 434 
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circumstances, this judgment shall not affect the degree 
obtained by him and his practicing as a doctor. But we make 
it clear that he cannot clai111 to belong to the Scheduled Tribe 
covered by the Scheduled Tribes Order. Jn other words, he 
cannot take advantage of the Scheduled Tribes Order any 
further or for any other constitutional purpose. Having regard 
···to the passage of ti111e, in the given circumstances, including 
interim orders passed by this Court in SLP (C) No. 16372 of 
1985 and other related matters, we 111ake it clear that the 
admissions and appoint111ents that have beco111e final, shall 
remain unaffected by this judgment. " 
(emphasis supplied) 
The last sentence in this paragraph is crucial. The Court made it 
clear that the admissions and appointments that have "become final" 
shall remain unaffected, by its judgment. 
9. The moot question in the present case is: whether the subject 
appointment of the appellant to the post of "Chemical Examiner" in 
Customs and Central Excise Department has in fact become final? 
Unlike the appointment of the appellant to the post of Assistant Chemist, 
in the Geological Survey oflndia, was confirmed in terms ofNotification 
No. I 225 B/ A-31013/ Asstt. Chemist/95-19C, dated 5.5.1995 with effect 
from 151h May, 1988, his appointment to the post of"Chemical Examiner" 
in the Customs and Central Excise Department with which we are 
concerned was
provisional and subject to verification of his caste claim 
of"Halba". It was nottreated as final by the Department till the impugned 
termination order was issued. Nothing has been brought to our notice by 
the appellant to show that his appointment on that post was in fact treated 
· as confirmed by the concerned Department, before issuing the impugned 
order oftennination. Had it been a case of termination from the post of 
"Assistant Chemist", on which the appellant was confirmed by the 
concerned Department, the argument canvassed by the appellant would 
have assumed some significance and could be tested with reference to 
the recent decisions of this Court pressed into service by the appellant. 
10. Admittedly, the appellant was appointed to the post of Chemical 
Examiner in the Customs and Central Excise Depa11ment, where he 
joined on 241h November, 1995, pursuantto the appointment letter bearing 
No. F.No.A-12026/7/91-AD.Il-B, dated l 61h June, 1995. Condition No. 
H 
(vii) therein unambiguously mentions that as the appointment of the
B.H.KHAWAS v. UNION OF INDIA & OTHERS 
[A.M. KHANWILKAR, J.] 
appellant was against the post reserved for Scheduled Tribes, it was 
provisional and subject to verification of his caste certificate through a 
proper channel. The caste certificate of the appellant was already under 
scrutiny in terms of reference made by the Controller General, of the 
Indian Bureau of Mines, Nagpur, where the appellant was appointed in 
similar manner on the post reserved for Scheduled Tribes. The mere 
fact that the Scrutiny Committee was not able to complete the enquiry 
on the question of validity of caste certificate, before the appellant 
resigned from the services of the Indian Bureau of Mines and joined 
another Department of Government of India, that would not extricate 
the appellant from the requirement of verification of his caste claim of 
"Halba", a notified Scheduled Tribe in Maharashtra. For, the appointment 
of the appellant as Chemical Examiner Grade-I in Customs and Central 
Excise Department in terms of Appointment Letter Dated I 61h June, 
1995 (Annexure Pl 0), was to a temporary post, on provisional basis and 
subject to verification of his caste certificate through a proper channel. 
In such a case, the principle expounded in the decisions relied by the 
appellant will have no application. 
I I.In the case of Kavita Solunke (supra), it was not in dispute 
that the appellant had satisfactorily completed the period of probation 
and was confirmed in service as an Assistant
Teacher in due course. 
Enquiry in respect of her caste claim was insisted upon "after a decade" 
from her initial appointment, obviously after the decision in Milind's case. 
The Court held that the appointment of the appellant having attained 
finality could not be disturbed. Indeed, the Court noted that there was 
nothing to indicate that the caste certificate of the appellant was false, 
fabricated or manipulated by concealment or otherwise. That observation 
is in the context of the matter in issue before the Court, for passing an 
order in equity. Even in the next case, in Shalini (supra) which follo,vs 
the dictum in Kavita's case, it is seen that the appointment of the appellant 
as an Assistant Teacher had attained finality as she was in service since 
61h November, 1981 and confirmed w.e.f. 1" January, 1984, for which 
the Court held that the same should not be disturbed. Similarly, in the 
case of Unnikrishnan and Another (supra), the Court was dealing 
with the matter where the ca~te claim was already made subject matter 
of challenge before the Court and was upheld. It was a case where a 
judicial order passed inter partes had become final on that issue. In that 
case, the caste claim enquiry was insisted because of the subsequent 
Presidential Order excluding the concerned caste from the entry notified 
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under notification dated 31"August2007. The Court, inter alia, opined 
that it was not open to reconsider the settled judicial pronouncement on 
the caste claim inter partes. 
12. In none of the cases pressed into service by the appellant, the 
appointment, as in this case, was on provisional basis and subject to 
verification of caste certificate through proper channel. It necessarily 
follows that the principle expounded in the three decisions referred to 
above, can have no application to the case on hand. Indubitably, ifthe 
argument of the appellant was accepted, it would inevitably mean that 
all appointments made before 28.11.2000 must be protected even though 
it had not become final. That would also mean that all caste certificates 
issued to persons belonging to "Koshti" community, as being "Halba" 
Scheduled Tribe in Maharashtra, prior to November 28, 2000 (the day 
on which Milind's case was decided by the Constitution Bench), have 
been validated irrespective of the opinion of the Scrutiny Committee qua 
those certificates. That cannot be countenanced. For, caste "Koshti" is 
neither a synonym nor part of a notified Scheduled Tribe "Halba" in 
Maharashtra. 
13. Considering the above, the appellant is not entitled for any relief 
on the finding that his appointment as Chemical Examiner in the Customs 
and Central Excise Department vide appointment letter dated 161h June, 
1995 had not attained
finality. Notably, the Caste Certificate Scrutiny 
Committee has finally answered the factum of caste claim of the appellant 
on the basis of relevant material, which is indicative of the fact that in 
the relevant official record pertaining to even the close relatives of the 
appellant (grandfather and uncle), the caste recorded is "Koshti" and 
occupation shown as weaving separately. The appellant has allowed 
that decision of the Caste Certificate Scrutiny Committee dated I O•h 
February, 2003/22"d April, 2004 to attain finality. The Scrutiny Commi_!tee 
has unambiguously held that the appellant does not belong to "Halba" 
Community, a notified Scheduled Tribe in Maharashtra. The High Court 
was, therefore, right in allowing the writ petition filed by the Department 
and to restore the termination order dated 8'
11 June, 2004. 
14. Accordingly, we find no merit in this appeal; the same is dismissed 
with no order as to costs. 
Divya Pandey 
Appeal dismissed.