SHALINI Vs. NEW ENGLISH HIGH SCH. ASSN.

JUDGEMENT

(1.) Leave granted. This Appeal challenges the Order of the Division Bench of the High Court of Judicature at Bombay, Nagpur Bench passed on 25.11.2009 in L.P.A. No.527 of 2009 affirming the Order of the learned Single Judge who had dismissed the Appellant's Writ Petition essentially on the opinion of the Three-Judge Bench in Union of India v. Dattatray, 2008 4 SCC 612. The Order impugned before the learned Single Judge was that of the School Tribunal, Nagpur which had granted reinstatement of the Appellant with continuity of service and full back wages. The Appellant had been employed as an Assistant Teacher against a vacancy earmarked for Scheduled Tribe candidate, she having filed a Caste Certificate dated 8.7.1974 issued by the Competent Authority testifying her to belong to the "Halba Scheduled Tribe Category". The question before us is indeed a vexed one, as are all conundrums arising out of claims for Scheduled Caste or Scheduled Tribe status and resultant benefits. The confusion is made worst confounded because of exclusions or inclusions of certain castes or classes of people keeping only electoral advantages in mind. Retrospectivity is inherent in subsequent enumerations under Articles 341 and 342 since those selection are immutable or unalterable; all change therefore, is only clarificatory in content, because the endeavour of Parliament is to make the enumerations more detailed by mentioning sub-castes or the synonyms of the selected castes and tribes. The inclusion of new castes/tribes was intended by the framers of the Constitution to be impermissible, in order "to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President" as per the Constituent Assembly oration of Dr. Ambedkar, which stands accepted by the Apex Court at least twice, as in State of Maharashtra v. Milind, 2001 1 SCC 4 and E.V. Chinnaiah v. State of A.P., 2005 1 SCC 394. We have to decide whether the Appellant's employment was justifiably terminated because a Caste Scrutiny Committee after a passage of several decades, found her disentitled to claim the benefits enuring to Halbas.

(2.) In R. Vishwanatha Pillai v. State of Kerala, 2004 2 SCC 105, this Court found that the caste certificate procured by the Appellant was false ab initio. It repelled the argument that a fresh notice should have been issued in compliance with Article 311 of the Constitution of India as a prelude to the imposition of any punishment postulated by that provision, on the premise that the appointment itself was illegal and void, thereby disentitling the Appellant from Constitutional protection. This Court also rejected the plea that since the Appellant had put in 27 years of service the order of dismissal should be converted to compulsory retirement or removal from service so that pensionary benefits could be availed of. The question which immediately begs to be cogitated upon is whether these harsh consequences should nevertheless ensue and obtain even if no fraud, mendacity or manipulation is ascribable to the person who has claimed and enjoyed Scheduled Caste advantages.

(3.) This slant in the situation arose in State of Maharashtra v. Om Raj, 2007 14 SCC 488 whereby several appeals came to be decided simply on the basis of Milind, the gist of which was that protection so far as the benefit then claimed on the strength of being Koshtis would be preserved, but the incumbent would not be entitled to any further benefit in the future. To remove confusion, State of Maharashtra v. Viswanath [C.A.No.7375 of 2000] has also been decided in Om Raj with other appeals. In Punjab National Bank v. Vilas, 2008 14 SCC 545, the employee had provided a Halba Scheduled Tribe Certificate and gained employment in 1989 which was invalidated by the Scheduled Tribe Scrutiny Committee leading to the termination of the Respondent's service by an order dated 4.2.2002. Drawing from the previous decision in Milind this Court reiterated that Scheduled Tribe status had not been conferred either on Halba Koshti or Koshti but on 'Halba' alone. This Court, thus, once again protected the employment of the Respondent but clarified that he would not be entitled to claim further promotion in the Scheduled Tribe category. It was also declared that the Government Resolution dated 30.6.2004 would apply to all employment with the "government/semi-government and Boards, Municipalities, Municipal Corporations, District Councils, Cooperative Banks, government undertakings, etc."