Scheduled Caste/Tribe; B.H. Khawas Vs. Union of India [Supreme Court of India, 12-08-2016]

Scheduled Caste or Scheduled Tribe – Caste / Tribe Certificate – Caste Certificate Scrutiny Committee – post of “Chemical Examiner” in Customs and Central Excise Department – appellant belonged to caste “Koshti”, which is not a Scheduled Tribe in the State of Maharashtra – Termination – For, caste “Koshti” is neither a synonym nor part of a notified Scheduled Tribe “Halba” in Maharashtra – 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.

Caste Certificate


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

(ADARSH KUMAR GOEL) AND (A.M. KHANWILKAR) JJ.

August 12, 2016

CIVIL APPEAL NO. 9182 OF 2012

B.H.KHAWAS ………… APPELLANT

VERSUS

UNION OF INDIA & OTHERS ………RESPONDENTS

For Appellant(s) Mr. Rajesh Prasad Singh, Adv.

J U D G M E N T

A.M. KHANWILKAR, J.

This appeal challenges the judgment of the Division Bench of the High Court of Judicature at Bombay in Writ Petition No. 7101 of 2005 dated 8th February 2012. The High Court reversed the decision of the Central Administrative Tribunal, Bombay Bench at Mumbai in OA No. 419 of 2004, dated 3rd March, 2005. The Tribunal had allowed the original application filed by the appellant whilst setting aside the termination order dated 8th 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 16th June, 1995, subject to fulfilling terms and conditions mentioned 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 and if on verification, your claim to belong to Scheduled Caste or Scheduled Tribe, as the case may be, is found to be false, your services will be terminated forthwith without assigning any reason and without prejudice to such further action that may be taken under the Indian penal Code for production of false certificate.”

(emphasis supplied)

3. Before joining the post of Chemical Examiner in the Customs and Central Excise Department on 21st November, 1995, the appellant had worked in other Departments of the Government of India; on 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 Mines 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 vide 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 Department as “Chemical Examiner Grade I”, from 21st November, 1995 pursuant to appointment order dated 16th June, 1995. He was working on that post till his services were terminated vide order dated 8th 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 vide letter dated 13th January, 1989 had referred his case for Caste Certificate scrutiny to the Caste Certificate Scrutiny Committee, Nagpur. The Scrutiny Committee after due enquiry answered the reference vide order dated 16th January, 2001. 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. 376 of 2001, before the High Court of Judicature at Bombay, Nagpur Bench at Nagpur, as having been passed in violation of procedural compliances. That contention 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 10th 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.1 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 his caste Certificate of his belonging to “Halba”, Scheduled Tribe granted by the Executive Magistrate, Nagpur Vide R.C. No.181/MRC-81/81/82, 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 21.01.2004. The substance of the representations was founded on the caste certificate issued by the Executive Magistrate, dated 14th September, 1986, which, the appellant asserted 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 further asserted that he did not furnish false information of his caste; and more so the question whether or not “Koshti” caste belongs to “Halba” 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 Others, (2001) 1 SCC 4

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 of India, Ministry of Finance, Department of Revenue, New Delhi instead issued an Office Order No. F.No.A-12026/7/91-Ad.II-B, dated 8th June, 2004, cancelling the appointment of the appellant on the ground that the appellant does 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 of 2004. The Tribunal acceded to the contention of the appellant that the appointment made prior to the decision in Milind’s case will have to be protected. The objection of the respondents that the observation 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 Court 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, we think that applicant has to be given similar benefit as has been given by the Hon’ble High Court of Bombay in a number of cases. We direct the respondents to reinstate the applicant as his services were terminated only on the limited ground of his not belonging to Halba S/T Community. The order dated 8.6.2004 is quashed and set aside. We, however, make it clear that neither the applicant nor his children will claim any further benefit available to a S/T candidate and they shall be 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 Halba S/T community.”

Against this decision, the Department filed a writ petition before the High Court, being Writ Petition No. 7101 of 2005. The Division Bench of the Bombay High Court, relying on the decision of three Judges’ Bench of this Court in the case of