B.P Dharmadhikari, J.:— The petitioner before us has challenged the order dated 2-1-2006 passed by respondent No. 2 - Scrutiny Committee, invalidating his caste claim as belonging to Pawara, Scheduled Tribe. In addition, he has challenged Show Cause Notice dated 2-5-2006 issued by respondent No. 3 - Executive Engineer, asking him to show cause why his services should not be terminated. Respondent No. 3 is his employer. This Court has issued notice on 18-5-2006 and no interim relief has been given till date.
2. Heard finally Shri Mardikar, learned counsel for the petitioner, Shri Mandpe, learned AGP for respondents No. 1 and 4, Shri Sambre, learned counsel for respondent No. 2 and Shri Mohgaonkar, learned counsel for respondent No. 3.
3. Shri Mardikar, learned counsel for the petitioner has contended that the petitioner was not given due opportunity to defend himself by the Scrutiny Committee and hence the order as passed is in breach of principles of natural justice. He has further contended that the petitioner was appointed on 25-3-1986 by respondent No. 3 and was promoted as Operator on 5-1-1994. Thus, on the date on which his caste claim was invalidated, he has put in more than 20 years of service. In 2002, after almost 17 years of service, the claim of the petitioner as belonging to Pawara, Scheduled Tribe was sent for verification to respondent No. 2 - Committee and it has been invalidated by the impugned order. He has relied upon the judgment in the case of Punjab National Bank v. Vilas Govindrao Bokade, reported at 2003 (4) Mh.L.J 233 and Regional Manager, Central Bank of India v. Madhulika Guru Prasad Dahir, reported at AIR 2008 SC 3266, to contend that such reference and invalidation after unreasonable delay itself vitiates the order of Scrutiny Committee and because of this delay that order needs to be quashed and set aside. He has further contended that in view of the policy decision of Government of Maharashtra dated 30th June, 2004 as the petitioner had joined services before 15-6-1995 and was also prompted before that date, the petitioner cannot be removed from service or his services cannot be terminated. The learned counsel, therefore, contends that even on this count, the petition deserves to be allowed and Show cause notice dated 2-5-1996 issued by respondent No. 3 needs to be quashed and set aside.
4. The contention that there is unreasonable delay in caste verification needs to be looked into first. The judgment of the Hon'ble Apex Court on which the petitioner has placed reliance i.e Regional Manager, Central Bank of India v. Madhulika Guru Prasad Dahir (supra) itself holds that effect of scrutiny of caste certificate after long delay or appointee having put in long service is inconsequential and equity, sympathy or generosity has no place where original appointment is based upon false caste certificate. The judgment of the Hon'ble Division Bench in the case of Punjab National Bank v. Vilas Govindrao Bokade (supra) also does not support the contention of the petitioner. The ground of breach of principles of natural justice is also without any substance. The Police Vigilance Cell Report was served upon the petitioner vide notice dated 16-9-2003 and he was given time of 15 days to submit his report. On 3-10-2003, the petitioner moved application and sought 15 days time for that purpose. By notice dated 1-12-2003, Scrutiny Committee called him for hearing on 22-12-2003 but then he did not appear before Scrutiny Committee and also did not submit his reply on report of Vigilance Cell. By another notice dated 7-2-2004, he was called upon to remain present for hearing on 27-2-2004 but again he remained absent. The notice dated 24-9-2004 was given to him but he did not remain present on due date i.e on 18-10-2004. He was given last chance by notice dated 27-10-2004 and was called upon to remain present for hearing on 22-11-2004. This date was postponed to 29-11-2004 and the petitioner was informed accordingly vide notice dated 4-11-2004. But again, he did not remain present and did not file his say on Police Vigilance Cell, thus he did not co-operate with Scrutiny Committee in the matter.
5. The petitioner was thus given full opportunity by the Scrutiny Committee and contention of breach of principles of natural justice is thus without any substance. In fact in writ petition as filed, the petitioner has not made any grievance about these dates or then about service of notice upon him or reasons for his absence. The petitioner claimed that he was belonging to Pawar Scheduled Tribe. He gave some documents which are only in relation to himself. In addition, he gave xerox copy of Caste Certificate of his father issued by respondent No. 4 - Executive Magistrate on 27-9-1979. Scrutiny Committee conducted home/School enquiry through Vigilance Cell and Vigilance Cell found that in School admission register of Primary School, Arambhi, Tahsil -Narkhed, District - Nagpur, caste of candidate's paternal aunt, paternal uncle was recorded as Bhoyar and in the same School admission register in 4th standard, caste of candidate (petitioner) was found to be recorded as Pawar. It also found that “Bhoyar” or “Pawar” are not included in the list of Scheduled Tribe. It also noted that the information given in relation to socio-cultural traits, characteristics and customs did not match with those of Pawara Scheduled Tribe.
6. This clearly shows that candidate did not supply true and relevant documents to Scrutiny Committee in relation to admissions of his blood relatives on paternal side and his caste was initially recorded as Bhoyar. It was found recorded as Pawara in 4th standard. He could not satisfy even affinity test. Because of this only he did not face Scrutiny Committee and then in Writ Petition as filed, has attempted to rely upon protection given to certain tribes by State Government vide its resolution dated 15-6-1995. The main thrust of petition is only on this protection.
7. The issue of protection is considered by this Court as also by judgments of the Hon'ble Apex Court in relation to employees of State Government as also employees of Central Government. In the case of Shivshankar U. Nimbedkar v. Scheduled Tribes Caste Certificate Scrutiny Committee, reported at 2008(6) AIR Bom. Reports 28 (DB), Division Bench of this Court at Nagpur has considered the claim of protection in the light of judgment of the Hon'ble Apex Court in the case of Union of India v. Dattatraya Namdeo Mendhekar, reported at 2008 (2) Mh.L.J 720. In view of this judgment of larger Bench of the Hon'ble Apex Court (3 Judges), the judgment of the Hon'ble Apex Court in the case of Punjab National Bank v. Vilas Govindrao Bokade, reported at 2007 (3) Mh.L.J (SC) 805, was found to be not a binding precedent and as it was found that the petitioner's caste claim was invalidated, he was not extended any protection. The candidate there had claimed to belong to Halba Scheduled Tribe. The above referred judgment of larger Bench has considered the claim of a candidate as belonging to Scheduled Tribe Halba, who joined duties on 20-9-1990 and at the end of para 6 and in para 7, it concluded that the judgment of Constitution Bench in the case of State of Maharashtra v. Milind, 2001 (1) Mh.L.J (SC) 1, was applicable only where a candidate had successfully completed the educational course and secured the degree. It was not applicable to cases where falsehood of caste claim was detected within short period from the date of admission. In para 7, the Hon'ble Apex Court found that High Court did not correctly apply the ratio in the case of Milind Katware's case as it directed the employer not to disturb the services of candidate though his caste claim was invalidated. It was concluded that such benefit was wrongly extended. The Hon'ble larger Bench here has also considered its earlier judgment in the case of Additional General Manager, BHEL v. Suresh Burde, reported at 2007 (4) Mh.L.J 1 : (2007) 5 SCC 336, and hence it is not necessary for us to independently consider it here but this judgment in para 13 holds that where appointment is secured on the basis of false certificate, he cannot be allowed to retain its benefit. Only when a person has got admission in professional course like Engineering or MBBS and successfully completed it after studying it for prescribed period, his case may, on special facts, be considered on different footing. This is because normally huge amount of public money is spent in imparting education in such professional college and the student also acquires the necessary skill in the subjects which he had studied, which can then be gainfully utilized by the society at large. In para 14, the Hon'ble Apex Court noticed that the respondent before it (Suresh Burde) was appointed on 31-5-1982 and matter was referred to Scrutiny Committee in March 1991. The further period was spent in enquiry and litigation. The termination of his services, therefore, was held correct. In para 16, the Resolution dated 15-6- 1995 issued by State of Maharashtra has been considered and it has been observed that Suresh was not employee of Government of Maharashtra and had secured employment long before i.e on 31 -5-1982.
8. In the case of State of Maharashtra v. Sanjay K. Nimje, reported at 2007 (3) Mh.L.J 795, the Hon'ble Apex Court has considered same Government Resolution dated 15-6-1995 and found that the respondent Sanjay was appointed on 29-6-1995 and the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Act No. 23 of 2001), would prevail over Government Resolution and said resolution cannot be extended to a person who does not satisfy the conditions stated therein. The case of Milind Katware (supra) is also considered and it was found that the respondent Sanjay did not plead and prove his bona fides. It has also been found that in any event, the effect of judgment of the Hon'ble Apex Court as also the provisions of a statute in the light of constitutional provisions contained in Articles 341 and 342 of the Constitution of India, cannot be diluted by Government Resolutions or otherwise.
9. In the case of N.V.S.M v. P.O, School Tribunal, reported at 2007 (2) Mh.L.J 440, the Division Bench of this High Court found that though no case of fraud being played in obtaining caste certificate was made out, that by itself would not be sufficient to avoid consequences of section 10 of Act No. 23 of 2001. The invalidation of caste claim and cancellation of certificate obviously invites consequences specified under the said provisions of law.
10. In Priyanka v. State of Maharashtra, reported at 2008 (1) Mh.L.J 715, the Division Bench of this Court again considered the provisions of act no. 23 of 2001 and concluded that in view of the provisions of section 10(3) of said Act No. 23 of 2001, the High Court, in its jurisdiction under Article 226 of Constitution of India, cannot acceed, to the prayers of protection. The various judgments of the Hon'ble Apex Court mentioned supra are also considered here.
11. In the case of Union of India v. Deepak, reported at 2008 (1) Mh.L.J 790, Division Bench in para 3 has found that only those persons who have obtained certificate without misrepresentation and on correct basis can aspire for protection under Government Resolution dated 15-6-1995. It is also observed that as the respondent Deepak there was belonging to “Koshti” tribe and there was no notification including that Tribe as Scheduled Tribe in Maharashtra State, Government Circular dated 15-6-1995 was of no help to him.
12. Full Bench of this Court in the case of Ganesh Rambhau Khalale v. State of Maharashtra, reported at 2009(2) Mh.L.J (FB) 788 : AIR 2009 Bom 122, considered the Hon'ble Apex Court judgments mentioned above and in paras 12 and 13, it concluded that protection extended in the case of State of Maharashtra v. Milind (supra) was under Article 142 of Constitution of India and not under Article 141 thereof. In para 8, the judgment of Hon'ble Apex Court (2 Judges) in the case of Punjab National Bank v. Vilas Bokade (supra) is also considered and it was observed that this judgment of the Hon'ble Apex Court does not deal with binding nature of observations in case of State of Maharashtra v. Milind (supra).
13. A Division Bench of this Court in the case of Ashok Bhaskar Chaulkar v. Central Bank of India, reported at 2009 (6) Mh.L.J 741 : 2009 (3) ALL MR 89 had occasion to consider almost all judgments on the point except Full Bench mentioned above and it was found in para 7 that judgment of Hon'ble Apex Court in Punjab National Bank v. Vilas Bokade, is not an authority on the question of applicability of Government Resolution dated 15-6-1995 to the Central Government undertakings. In para 10, it has been found that the petitioner Ashok there had got employment on the basis of false certificate. In paras 12 and 17 long service has been found to be irrelevant.
14. All these judgments, therefore, conclusively show that where the petitioner has shown that he got the caste certificate issued bona fide and without any misrepresentation, then only in circumstances covered by the judgment of the Hon'ble Apex Court in the case of Union of India v. Dattatray Namdeo Mendhekar, reported at 2008 (2) Mh.L.J (SC) 720 : (2008) 4 SCC 612 : AIR 2008 SC 1678 (supra), the degree obtained by him can be protected. No such protection is available to present petitioner who procured the certificate as belonging to Pawara Scheduled Tribe, though in School admission register, his caste was mentioned as Bhoyar. He did not give those details to Scrutiny Committee and tried to mislead it in the matter. He also did not thereafter participate in enquiry before the Scrutiny Committee. All these facts clearly show guilty mind. The petitioner is, therefore, not entitled to any protection.
15. We, therefore, do not find any reason to interfere either with the order of Scrutiny Committee or then with the show cause notice issued by respondent No. 3 - employer. Writ Petition is, therefore, dismissed with cost of Rs. 5,000/- payable by the petitioner to respondent No. 2 - Scrutiny Committee.
At this stage, Shri Mardikar, learned counsel for the petitioner states that the petitioner is in service since 1986 and his services should be protected for a period of 12 weeks more so as to enable him to approach the Hon'ble Apex Court in the matter.
Shri Sambre, Shri Mohgaonkar, learned counsel as also Shri Mandpe, learned AGP for the respective respondents are opposing the request. Shri Mohgaonkar, learned counsel states that in any case the petitioner can move appropriate application before the employer.
In the circumstances, we continue the protection for a period of twelve weeks more from today. The said protection shall cease to operate automatically thereafter.
Petition dismissed.