R.M.S Khandeparkar, J.:— Heard. The petitioner challenges the Order dated 16th October, 2003 passed by the School Tribunal in Appeal No. 43 of 2002 and the G.R dated 30th June, 2004 bearing No. BCC-2002.P.K.-13/04/19-B/Mantralaya Mumbai - 32 being contrary to the provisions of law, and therefore, to be declared as bad in law and not enforceable.

2. The petitioner society runs a high school by name New High School (Main) at Amravati, wherein the respondent No. 2 came to be appointed as Assistant Teacher against the post reserved for scheduled tribe on the basis of the caste certificate dated 24th April, 1980 produced by him. He was subsequently promoted to the post of Assistant Head Master reserved for the scheduled tribe. On this occasion, the respondent No. 2 produced another caste certificate dated 21st May, 1992 claiming to be belonging to Nomadic Tribe (NT) category and requested the petitioner society to include his name in the NT category. The petitioner referred the caste claim of the respondent No. 2 for verification by the caste scrutiny committee which was sought to be challenged by the respondent No. 2 without any success, and on the contrary, there was direction by this Court to the caste scrutiny committee to decide about the caste verification of the respondent No. 2 within three months. After the enquiry, the caste scrutiny committee invalidated the caste claim of the respondent No. 2 by its order dated 31st May, 2001. On receipt of the order of invalidation of the caste claim of the respondent No. 2, the petitioner society issued an order dated 30th June, 2001 to be effective from 2nd July, 2001 terminating the services of the respondent No. 2 as a result of his failure to establish his caste claim. The respondent No. 2 challenged the order dated 31st May, 2001 passed by the caste scrutiny committee before this Court in the Writ Petition No. 1915 of 2001 and this Court after hearing the parties dismissed the petition by order dated 31st August, 2001. About six months after passing of the order of termination of services, a complaint was lodged by the respondent No. 2 to the Deputy Director of Education, Amravati, with a request that he be reinstated in the service, and by order dated 28th January, 2002, the respondent No. 1-Education Officer directed reinstatement of the respondent No. 2.

3. Being aggrieved, the petitioner-society filed the Writ Petition No. 926 of 2002 and by an order dated 10th July, 2002 this Court set aside the said Order dated 28th January, 2002 of the Education Officer, the respondent No. 1, and granted liberty to the respondent No. 2 to approach the school tribunal to challenge the order of termination of his service. Accordingly, the respondent No. 2 filed an appeal bearing No. 43 of 2002 before the School Tribunal, Amravati, and by the impugned order dated 16th October, 2003, the Tribunal set aside the order of termination. Meanwhile, the Government issued the G.R dated 30th June, 2004 giving protection of services to those whose caste claims have been invalidated in the caste verification proceedings.

4. While assailing the impugned order, the learned advocate for the petitioner submitted that the School Tribunal had directed reinstatement of the respondent No. 2 in the service solely on the ground that the caste scrutiny committee had not directed the school management to terminate the services of the respondent No. 2 consequent to his failure to establish his caste claim. As regards the G.R dated 30th June, 2004, the learned advocate for the petitioner drawing our attention to the sections 7 and 10 of the Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backwards Classes and Special Backward Category, (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, hereinafter called as “the said Act”, submitted that moment the caste scrutiny committee in exercise of powers given to it under the said Act invalidates the caste claim of a candidate, consequences described under sections 7 and 10 of the said Act are bound to follow as both the sections are mandatory in nature. The provisions of law comprised under section 7 leave no room for doubt that as a result of failure on the part of the candidate to establish his or her caste as claimed, the caste certificate is bound to be cancelled and in terms of the section 10, the benefits secured on the basis of invalidated caste certificate are liable to be withdrawn. Applying the said statutory provision to the facts of the case, no fault could have found with the order of termination issued against the respondent No. 2 on account of his failure to establish his caste claim. With reference to the G.R dated 30th June, 2004, the learned advocate for the petitioner submitted that it is clearly in excess of the powers of the Government and is directly in contravention of sections 7 and 10 of the said Act, and therefore, is not enforceable and is to be declared as bad in law and no party can claim any right under the said G.R

5. The contention on behalf of the petitioner is sought to be refuted on behalf of the respondent No. 2 contending that the services of an employee can be terminated on the basis of invalidation of the caste claim only if it is proved that at the time of appointment, the employee had played fraud and not otherwise. In the case in hand, it is not even the case of the petitioner that there was any fraud played by the respondent No. 2 at the time of entry in the service and therefore, the respondent No. 2 could not have been denied the protection available to him in terms of the G.R dated 30th June, 2004. It is further the case of the respondent No. 2 that the Act which has come into force from 29th January, 2004 cannot apply to the matter in hand and the same is governed by the G.R dated 30th June, 2004. It is his further case that the said G.R was issued in terms of the powers exercisable by the State under Articles 162, 309 and 311 of the Constitution of India. It is his further case that the G.R dated 30th June, 2004 has to be read along with the earlier G.Rs dated 27th May, 2002 and 15th June, 1995 and having so read, the protection to the respondent No. 2 cannot be denied.

6. By the impugned judgment, the School Tribunal has set aside the order of termination of the service of the respondent No. 2 on the ground that the caste scrutiny committee had not directed the management to terminate the services of the respondent No. 2.appellant and secondly that the caste verification proceedings were not initiated within reasonable time from the date of entry of the respondent No. 2 in the employment of the petitioner and there was inordinate delay in referring the caste claim of the respondent No. 2 to the caste scrutiny committee.

7. As regards the absence of direction by the caste scrutiny committee to terminate the services of the respondent No. 2, the Tribunal has not referred to any statutory provision which would require such direction by the caste scrutiny committee to terminate the services of an employee. Without any consideration of this point, merely accepting the argument in that regard on behalf of the respondent, the School Tribunal has proceeded to hold that there is substance in the contention of the respondent No. 2. In fact, the appellant/respondent No. 2 did bring to the notice of the School Tribunal the provision of the said Act, and that is apparent from the observation in the order itself. Perusal of the said Act would have revealed to the Tribunal that there is no such provision which makes it necessary for the caste scrutiny committee to direct termination of the services of the employee whose caste claim is invalidated. In fact, it is for the management to take appropriate decision in the regard on receipt of the decision of the caste scrutiny committee regarding invalidation of the caste claim of the employee. Being so, the finding on the basis of absence of direction by the caste scrutiny committee is to be held as bad in law.

8. As regards the inordinate delay in referring the caste claim for verification, the law on the point is just contrary to what has been held by the School Tribunal. It is true that the Division Bench of this Court had held that the reference to the verification should be within a reasonable time. However, that view is no more a good law in view of the law laid down by the Apex Court in R. Vishwanatha Pillai v. State of Kerala, reported in (2004) 2 SCC 105 : AIR 2004 SC 1469, Bank of India v. Avinash D. Mandivikar reported in 2005 (4) Mh. L.J (SC) 409 : 2005 (7) SCC 690 : 2005 AIR SCW 4477. This has been also explained in the decision of a Division Bench in the matter of Vidyasagar s/o Baburao Ashtake v. State of Maharashtra, reported in 2004 (5) Mh. L.J 573 : 2005 (3) All MR 548, to which one of us (Shri R.M.S Khandeparkar, J.) was party. The SLP against the said decision was not entertained by the Apex Court. Considering the law on the point, therefore, mere delay in reference of the matter for verification does not lose the sanctity of the order passed in such proceedings. Once the caste claim is invalidated, the management can take appropriate decision in accordance with the provisions of law.

9. As the impugned order has not been passed on any other ground and the same has been passed solely on the above referred two grounds which are not sustainable, the impugned order is liable to be set aside. The point that arises is whether in such circumstances, the matter is to be remanded to the School Tribunal or not. The contention on behalf of the petitioner is that no purpose would be served by remanding the matter as, according to him, the respondent No. 2 is not entitled for any order of reinstatement nor he is entitled for protection under the G.R dated 30th June, 2004 or any other G.R earlier thereto in view of the provisions of the said Act. Since the matter involves important question of law in this regard, various other advocates appearing in other petitions wherein same question arises including the Writ Petition Nos. 2416 of 2005, 1272 of 2005, 2912 of 2005, 3164 of 2005, and 3446 of 2005 were also heard at length, along with other advocates whosoever volunteered to assist the Court in deciding the important question of law.

10. The important point which arises for consideration is whether the G.R dated 30th June, 2004 or earlier G.Rs on similar lines would override the statutory provisions or could avoid the consequences stipulated under sections 7 and 10 of the said Act pursuant to invalidation of the caste/tribe certificate by the scrutiny committee? Can the said circulars give protection to such students and the employees in the face of the statutory provisions comprised under sections 7 and 10 of the said Act? Are those circulars enforceable in the face of the provisions of law comprised under sections 7 and 10 of the said Act?

11. The contention on behalf of the petitioner is that since the statutory provision clearly provides for consequences of a false caste certificate being produced and benefits thereunder being availed, there is no power vested in the Government to nullify the effect of the said statutory provision by an executive fiat. The G.R dated 30th June, 2004 and for that matter all those circulars of similar nature issued by the Government being directly contrary to the statutory provisions under section 10 of the said Act, no effect can be given to those G.Rs On the other hand, it is the case of the respondent No. 2 that the section 10 of the said Act clearly refers to the case of a false certificate and unless there is a finding by the caste scrutiny committee while ascertaining the correctness of such certificate under section 7 that the certificate was a false certificate, question of mere invalidation of a caste certificate cannot result in consequences contemplated under section 10. For the purpose of the consequences stipulated under section 10 to follow, the basic ingredient of the said section which speaks of caste certificates to be false must be proved and it cannot be presumed to be false unless there is clear finding to that effect by the caste scrutiny committee in the verification proceedings.

12. Under the Government resolutions sought to be relied upon, it has been announced that those who had been in service on the strength of the caste or tribe certificates and in reserved category seats, since and prior to the dates specified in the resolutions, their services should not be terminated nor they should be demoted on account of invalidation of their caste claim. In other words, those who had been in the service prior to the specified dates under the said resolutions, in case their caste claim on verification by the caste scrutiny committee is rendered invalid, their services cannot be terminated on that count even though they continued to occupy the seats which are reserved for scheduled caste or tribe candidates.

13. Undisputedly, the said Act came into force from 18th October, 2001 and not from 29th January, 2004 as sought to be contended in the affidavit filed by the respondent No. 3. The Notification No. STC-1001-CR-27-D-x dated 17th October, 2001 published in MGG Part 4B Extraordinary dated 18th October, 2001 on page 2 clearly discloses the date of 18th October, 2001 as being the date of enforcement of the said Act.

14. Though the said Act came into force from 18th October, 2001, even prior to that, the decision in Kumari Madhuri Patil's case (supra) was binding on the Government. As already seen above, the provisions of the said Act are in consonance with the directions which were issued by the Apex Court in Kumari Madhuri Patil's case (supra) under the clause Nos. 14 and 15 of the said decision. The said clauses read thus:—

“14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.

15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.”

15. Section 7 of the said Act deals with the subject of confiscation and cancellation of false caste certificate. Sub-section (1) thereof provides that where, before or after the commencement of the said Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Caste, Tribe or class, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any. Sub-section (2) thereof provides that the order passed by the Scrutiny Committee shall be final and shall not be challenged before any authority or Court except the High Court under Article 226 of the Constitution of India.

16. The section 7(1) visualizes an enquiry either suo motu or by calling the records. Such an enquiry is contemplated to ascertain the correctness of the caste or tribe certificate produced by the claimant. It contemplates two eventualities which can follow on conclusion of the enquiry. One relates to the situation where the Committee finds the certificate to have been obtained fraudulently. Second eventuality relates to a situation where the certificate is found to be false, in the sense that it does not disclose the real caste or tribe of the certificate holder. In case of the first eventuality, the caste scrutiny committee is left with no alternative than to direct cancellation and confiscation of the certificate by following the procedure prescribed for the same. Whereas, no such obligation is cast upon the caste scrutiny committee merely because the caste certificate does not disclose the real caste of the certificate holder. It is pertinent to note that under the said section, the legislature while entrusting the power of verification of the caste claim, has described the purpose of proceedings to ascertain “correctness of such certificate”, and the subject-matter of the proceeding is referred as “a false caste certificate”. Obviously, the word “false” preceding the expression “caste certificate” has been used in broad sense and not in strict sense. It includes certificate which does not disclose true and real caste of a person in whose favour such certificate is issued as also certificate which might have been obtained fraudulently. Being so, the section 7(1) by itself does not provide that moment the caste scrutiny committee invalidates the caste claim of a claimant that the benefits derived by him on the basis of such certificate which has been invalidated are liable to be forfeited or withdrawn. The section 7 of the said Act essentially deals with the power of the scrutiny committee to verify the caste claim and on the basis of such verification to pass an appropriate order, while making it obligatory for the committee to cancel and confiscate such certificate in a case where the same is found to have been obtained fraudulently. Being so, the section 7 of the said Act by no stretch of imagination can come in the way of the Government in issuing the G.R of 30th June, 2004 or any earlier G.Rs nor it invalidates the said G.R, nor it can affect the G.Rs issued by the Government in relation to any protection sought to have been given to the employees who had entered the service on the basis of certificates but failed to prove the correctness thereof.

17. The section 10 of the said Act provides for withdrawal of the benefits secured by the claimants on the basis of false caste certificate. Sub-section (1) thereof provides that whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or secures any appointment in the Government, local authority or in any other Company or Corporation, owned or controlled by the Government or in any Government aided Institution or Co-operative Society against a post reserved for such Castes, Tribes or Classes by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed or derived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith. The sub-section (2) thereof provides for recovery from such person as arrears of land revenue any amount paid to such person by the Government or any other agency by way of scholarship, grant, allowance or other financial benefit paid to or enjoyed-by such person. The sub-section (3) thereof provides that notwithstanding anything contained in any other Act for the time being in force, any Degree, Diploma or any other educational qualification acquired by such person after securing admission in any educational institution on the basis of a Caste Certificate which is subsequently proved to be false shall also stand cancelled, consequent to the cancellation of such Caste Certificate by the Scrutiny Committee. The sub-section (4) thereof provides that notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory body if he has contested the election for local authority, Co-operative Society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively.

18. The constitutional validity of sub-section (4) of section 10 of the said Act was the subject-matter of the decision of a Division Bench in Dattatraya R. Thorat v. State of Maharashtra, reported in 2003 (5) Mh. L.J 539 : 2003 (Supp.) Bom. C.R 110, which was duly approved along with the validity of the said Act itself in the decision of a Full Bench in the matter of Sujit v. State of Maharashtra, reported in 2004 (3) Mh. L.J 1109.

19. Undoubtedly, the section 10 of the said Act speaks of false caste certificates and an order of cancellation of such certificates by the caste scrutiny committee. However, the expression “false” in relation to the caste certificate is found only in sub-section (1) and sub-section (3). Such an expression is not mentioned in sub-section (4). Even in case of sub-sections (1) and (3), the expression “false” has been used in two different context. While in sub-section (1), it refers to the situation where the claimant might have obtained benefit on producing “a false caste certificate” whereas in sub-section (3), it refers to a situation where the caste certificate is subsequently “proved” to be “false”. Apparently, therefore, the said expressions in sub-section (1) has been used in broad sense, whereas in sub-section (3), it has been used in a strict sense. There is no requirement of the certificate being ‘proved’ to be false for the purpose of consequences under sub-section (1), which is an essential requirement of sub-section (3). The consequences contemplated under sub-section (1) are to follow on declaration of the certificate to be false i.e invalid by the scrutiny committee under section 7. If the finding of the scrutiny committee is to the effect that the certificate was obtained fraudulently, certainly the certificate would stand proved to be ‘false’ for the purpose of consequences under sub-section (3).

20. Obviously, the consequences contemplated under section 10 of the said Act cannot follow unless the certificate is cancelled by the scrutiny committee. The section 7(1) of the said Act, as already seen above, requires the caste scrutiny committee to ascertain the correctness of the caste certificate produced by the claimant. On ascertaining the same, it has to give its declaration in that regard. Obviously, therefore, the caste scrutiny committee on verification of the caste claim has to declare whether the caste claim is correct and if not, then to cancel the certificate. Further, the committee if it finds the certificate to have been obtained fraudulently, it has to confiscate it on cancellation thereof. The result of the proceedings for verification of the caste claim by the caste scrutiny committee would establish whether the certificate is true and valid or false and invalid. But the process before the scrutiny committee does not come to an end by mere declaration in that regard. It concludes on the cancellation of the certificate. Once the scrutiny committee finds the certificate to be invalid, it has to cancel the same. Besides, in case of fraud in obtaining the certificate is established, then it has also to confiscate it.

21. While dealing with the subject of consequences of invalidation of the caste certificate, it would be necessary to consider the provisions of law comprised under section 11 of the said Act. It deals with the offences and the penalties. Sub-section (1) thereof provides that whoever, (a) obtains a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or (b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for such Castes, Tribes, or classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Co-operative Society against the office, reserved for such Castes, Tribes or Classes by producing a false Caste Certificate, shall, on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both. Apparently, section 11(1) comprises two parts. While the clause (a) relates to the obtaining of false certificate, the clause (b) relates to all the cases wherein the candidates availing the benefits on the strength of false certificate. However, in both the cases, there is no difference as far as punishment is concerned. Undoubtedly, the common factor which is to be established is “false certificate”. While the offence under clause (a) relates to fraud being played in obtaining the certificate, under clause (b) it relates to fraud being played in availing benefits which he is not entitled to enjoy under such certificate. While in one case the act of fraud proceeds issuance of certificate, in other case it is performed subsequent to the issuance of certificate. While dealing with the concept of “fraud”, the Apex Court in State of Andhra Pradesh v. T. Suryachandra Rao, reported in 2005 AIR SCW 3603, taking note of its earlier decision in S.P Changalvaraya Naidu v. Jagannath, reported in 1994 (1) SCC 1, has held that “a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss.” It was further held that “fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.”

22. At the same time, section 13 of the said Act also needs to be noted. It provides for penalty for issuing false Caste Certificate. Sub-section (1) thereof provides that any person or authority performing the functions of Competent Authority, under the said Act, who intentionally issues false caste certificate, shall on conviction, be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both. The section deals with the subject of penalty for issuing false caste certificate, albeit. “intentionally”. Hence, the legislature has specifically stated that the authority can be convicted for issuing false certificate if it is established to have been issued “intentionally”.

23. Perusal of all those sections, it would be very clear that the word “false” which precedes the expression “caste/tribe certificate” has been used in broad sense. If it was confined to ‘fraud’, then there would have been no occasion for the legislature to qualify the said expression by the terms like “fraudulently obtained”, “intentionally issued”, “by furnishing false information”, “by any other fraudulent means”, “proved to be false”, etc. In other words, whenever the legislature expects the element of fraud to invite the consequences enumerated under the statutory provisions in case of false certificate, it has specifically qualified the said expression with the words quoted above. This clearly discloses the term “false caste certificate” relates to that certificate which does not reveal true and real caste of the claimant. If it was to refer to a certificate obtained by playing fraud or necessarily with an intention to cause loss to somebody, then there would have been no occasion to the legislature to make separate provision in cases of false certificate being obtained fraudulently.

24. It is to be borne in mind that the provisions for reservation of seats or benefits in educational institutions for reserved category are being made in pursuance of the constitutional mandate in that regard. The Constitution endeavours for social and economic upliftment of the down-trodden population of this country and social equality of status and dignity of person, by providing reservation in services of the State and in education by operation of Articles 15, 16 read with 14 of the Constitution of India, and therefore, the Apex Court clearly observed in S. Nagarajan v. District Collector, Salem, reported in (1997) 2 SCC 571 that “It is obvious that the Constitution intended to give benefit of social and economic advancement and empowerment and social equality of status and dignity of person, by providing reservation in services of the State and in education by operation of Articles 15, 16 and 14 of the Constitution and that therefore, only the persons who are members of Scheduled Tribes and Scheduled Castes alone are entitled to that benefit.”

25. The Apex Court in Punit Rai v. Dinesh Chaudhary., reported in (2003) 8 SCC 204 had ruled that:

“A person in fact not belonging to the Scheduled Caste, if claims himself to be a member thereof by procuring a bogus caste certificate, would be committing fraud on the Constitution. No Court of law can encourage commission of such fraud.”

26. In R. Vishwanatha Pillai's case (supra) referring to its earlier decision in Kumari Madhuri Patil v. Additional Commissioner, Tribal Development, reported in (1994) 6 SCC 241, the Apex Court observed that the Court therein had laid down the procedure for the grant of social status certificate, its verification and examination of its genuineness by the Scrutiny Committee. Accordingly, if the certificate was found to be genuine, then no further action was required to be taken but if the caste certificate produced was found to be false or fraudulently obtained, then immediate action was required to be taken. The findings recorded by the Scrutiny Committee were made final and conclusive which could not be challenged in any suit or any proceedings except in the High Court under Article 226 of the Constitution of India. The Scrutiny Committee was required to communicate its report under a registered cover to the educational institution as well as the appointing authority and the educational institution or the appointing authority on receipt of the said report was required to cancel the admission/appointment without any further notice to the candidate and debar the candidate from further studying or continuing in office in a post. This was done to simplify the procedure for grant of the social status certificate as well as its security, and if found to be false, the follow-up action to be taken.

27. If we consider the scheme of issuance of caste certificate and verification thereof by the scrutiny Committee and consequences of such scrutiny as provided under the said scheme by the Apex Court in Kumari Madhuri Patil's case (supra) and compare the same with the scheme of the said Act, it would be at once clear that the latter is in consonance with the scheme prescribed by the Apex Court in Kumari Madhuri Patil's case (supra). The scheme under Kumari Madhuri Patil's case (supra) contemplates two types of certificates; one false certificate and another fraudulently obtained certificate. The section 7 of the said Act also contemplates two types of certificates; one false certificates and another fraudulently obtained certificate. In either of the cases, the certificate are to be cancelled. In case the certificates which are obtained fraudulently, there is statutory mandate to confiscate certificate. There is no such mandate in relation to mere false certificate. However, section 10 specifically deals with subject of consequences of cancellation of certificates by the scrutiny committee, in either of the cases. The statute nowhere distinguishes between intentional or unintentional false claim, though it does differentiate between the false claim on the basis of the certificate and the false declaration in obtaining such certificates. In that respect, it is different from the scheme under the provisions of law comprised under sections 1B and 1C of Bombay Provincial Municipal Corporation Act, 1949, where we find total differentiation in respect of both the cases and the same was noted by the Division Bench of this Court in Mohan Parasnath Goswami v. The Committee for Scrutiny of Caste Certificates reported in 2003 (5) Mh. L.J 707 : 2003 (2) All MR 409.

28. The Apex Court in R. Vishwanatha Pillai's case (supra), referring to the facts of the said case, had held that Shri Pillai had obtained appointment in the service on the basis that he belonged to a scheduled caste community. When it was found by the Scrutiny Committee that he did not belong to the scheduled caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He could not claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. His appointment was held to be void from its inception.

29. It was further observed in the said decision in R. Vishwanatha Pillai's case (supra) to the effect that where an appointment in a service has been acquired by practising fraud or deceit, such an appointment is no appointment in law and in such a situation Article 311 of the Constitution is not attracted at all. It is sought to be strenuously argued on behalf of the respondent No. 2 that, that was a case of a fraud being played, and therefore, it is different from a certificate which is merely invalidated without any finding to the effect that the caste certificate was obtained fraudulently. Undoubtedly, the gravity of offence would increase with the finding about the caste certificate having been obtained fraudulently. Nonetheless, when the caste claim on the basis of the certificate produced by the claimant is not established to be true in the verification proceedings, and therefore, the certificate is declared to be invalid and cancelled, it would eventually follow that the caste certificate does not disclose true and real caste of the claimant, and therefore, it is a false certificate. No doubt, an act or a statement can be a false by intent or by accident or by mistake. But it cannot be said that the claim of caste can be made by an accident or by mistake because the certificate is to be obtained on the basic of the representation made by the claimant to the concerned authority, supported by the materials prima facie disclosing the claim relating to the caste/tribe being genuine. Being so, it is entirely for the claimant to make a genuine and true claim and produce cogent materials regarding his caste. The caste being within the knowledge of the claimant, by no stretch of imagination, it can be said that his claim can be false by mere mistake or by accident. It is pertinent to note that the caste certificate is essentially obtained to avail certain benefits in life of an individual, either may be for educational purpose or for employment, or for other benefits like contesting election. In any case, it is essentially to avail some benefits by or for the claimant. Besides, it is also to be noted that the section 8 of the said Act specifically provides that when an application for obtaining the caste certificate is made by the claimant, as well as in the inquiry by the scrutiny committee or competent authority about the verification or any trial, the burden to prove that a person belongs to the caste claimed or disclosed in the caste certificate is always upon the claimant. This obviously discloses that unless the claimant is able to establish his caste claim which he had made for obtaining the caste certificate, the inevitable conclusion which will have to be drawn, is that he had either obtained a false caste certificate or there was a fraud played in obtaining such certificate. Such an act cannot be by way of mere accident, nor it can be unintentional. The caste certificate is essentially obtained with an intention of availing the benefits. Being so, it is absolutely necessary for the claimant to ensure that he makes a truthful claim, otherwise it is nothing but a deceit which should warrant consequences as contemplated under the statutory provisions.

30. In Bank of India v. Avinash D. Mandivikar, reported in 2005 (4) Mh. L.J (SC) 409 : 2005 (7) SCALE 272 : 2005 AIR SCW 4477, the Apex Court reiterated the decision in R. Vishwanatha Pillai's case (supra). The facts of the case disclose that the caste claim of Avinash Mandivikar was invalidated by the scrutiny committee on three occasions and after the third time verification, in the disciplinary proceedings initiated by the bank-management, the services of Avinash Mandivikar were terminated by order dated 28th February, 2002. The matter was challenged before this Court on the ground that the proceedings for verification of the caste certificate were not initiated within reasonable period. This Court held that Avinash Mandivikar had joined services of the bank in 1976 and the reference was made in the year 1987, and therefore, the period was not reasonable for initiation of such proceedings, and hence the proceedings were not initiated validly, and accordingly the order of termination of the services of Avinash Mandivikar was quashed and he was directed to be reinstated. When the matter came up before the Apex Court, referring to its earlier decision in Kumari Madhuri Patil v. Additional Commissioner, Tribal Development, 1994 (6) SCC 241, the appeal was allowed, while highlighting the object for granting certain benefits to the persons belonging to scheduled caste and scheduled tribe and the approach to be adopted in the matters where benefits are found to have been fraudulently obtained.

31. While reproducing the paragraph 13 of Kumari Madhuri Patil's decision, the Apex Court in Bank of India (supra) case held that Avinash had obtained the appointment in the service on the basis that he belonged to scheduled tribe. Further that there was a clear finding by the scrutiny committee that he did not belong to scheduled tribe. Being so, the very foundation of his appointment had collapsed and his appointment was no appointment in the eyes of law, and therefore, there was absolutely no justification for his claim in respect of the post he assumed, and the same was meant for reserved candidate. While dealing with the contention on behalf of the employee Avinash Mandivikar to the effect that he had put in nearly three decades of service and about three years had left for retirement, the order of the High Court was an equitable order. While reiterating its earlier decision in R. Vishwanatha Pillai's case (supra), it was held that a similar plea which was raised in Vishwanatha Pillai's case was considered to be inconsequential. Referring to the decision in State of Maharashtra v. Milind Katware, reported in 2001 (1) Mh. L.J (SC) 1 : 2001 (1) SCC 4, it was held that the protection under the Milind Katware's case (supra) could not be extended to Avinash as the protection in the Milind Katware's case (supra) was given in peculiar factual background of that case. The employee concerned in Milind Katware's case (supra) was a doctor and had rendered long years of service and the Court had noted that on a doctor, the public money had been spent, and therefore, it was not desirable to deprive the society of the doctor's service. Avinash being a bank employee, the factors which had weighed with in Milind Katware's case (supra) could not be applied to him. It was further ruled that:

“Mere delay in making a reference does not invalidate the order of the Scrutiny Committee……………accepting the findings of the Scrutiny Committee that the respondent No. 1-employee did not belong to Scheduled Tribe, the observations about the delayed reference loose significance. ……… When fraud is perpetrated the parameters of consideration will be different. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra, JT 2005 (7) SC 530 dealt with effect of fraud. It was held as follows in the said judgment:

14………….. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.”

(Emphasis supplied)

32. Indeed, the Apex Court in Bhaurao Dagdu Paralkar's case (supra) had held that suppression of a material document would also amount to a fraud on the Court and the fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud, as observed in Ram Preeti Yadav v. U.P Board of High School and Intermediate Education, 2003 (8) SCC 311.

33. In Lilly Kutty v. Scrutiny Committee, S.C and S.T, reported in (2005) 8 SCC 283 : AIR 2005 SC 4313, while dealing with the concept of fraud with reference to the caste or tribe certificates obtained by the persons claiming to be the member of such caste or tribe has held that “When, thus, a person who is not a member of Scheduled Caste or Scheduled Tribes obtains a false certificate with a view to gain undue advantage to which he or she was not otherwise entitled to would amount to commission of fraud. Fraudulent acts are not encouraged by the Courts.” Further, it was held that the Constitution does not postulate conferment of any special benefit on those who do not belong to the category of SC/ST people for whom the provision was made.

34. In LIC of India v. Sushil, reported in 2006 (1) Supreme 384 : 2006 AIR SCW 434 while specifically denying protection which was granted under Milind Katware's case (supra), it was held that the said protection was given under peculiar factual background of the said case, and the decision does not lay down any binding principle as such. Thus, the decision in Milind Katware's case (supra) does not lay down the law on the point of availability of protection to the persons who have availed benefits under the reserved category is well settled.

35. The Division Bench of this Court in Gopal G. Nipane v. Hindustan Aeronautics Ltd., reported in 2006 (3) Mh. L.J 376, after taking into consideration the decision in Avinash Mandivikar's case (supra) and R. Vishwanatha Pillai's case (supra), has held that “If the Constitution has to have a meaning for those whom the reservation is given considering their social and economic backwardness, Courts should not allow the extra-ordinary jurisdiction to be misused by persons claiming protection, when the admission or appointment was based on false or fraudulent certificate. The Apex Court has only made exception in a rare case where the student had already completed studies with a rider that it should be wary in considering such cases. Insofar as appointments based on fraudulent certificates, there can be no protection.”

36. Yet another unreported decision of the Division Bench which has been brought to our notice is in the matter of Jaydeo s/o Mahadeo Parate v. State of Maharashtra, in Writ Petition No. 24 of 2003 delivered on 25th October, 2005 [since reported in 2006 (2) Mh. L.J 497], at Nagpur, wherein it was held that “the Apex Court itself in the case of State of Maharashtra v. Milind Katware (supra) had made it clear that admissions and appointments have become final shall remain unaffected by the said judgment.” The observation is contrary to the law laid down not only in the Bank of India, and R. Vishwanatha Pillai's case (supra) as well as the LIC's case (supra) but even contrary to the ruling in Milind Katware's case (supra) itself,. In Milind Katware's case (supra), after holding that in the peculiar circumstances of the case the judgment in Milind Katware's case shall not affect Milind from obtaining the degree and thereafter practising as a doctor while making it clear that he would not be entitled to claim that he belongs to scheduled tribe covered by the scheduled tribe order any further. At the same time, it was also observed that “having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No. 16372/85 and other related affairs, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment.” On plain reading of the said observation, it is apparent that the same refers to the cases which were before the Apex Court including the case of Milind Katware and it does not relate to the matters which were not before the Apex Court and this position has been further clarified by the Apex Court in the subsequent judgments including the judgment in R. Vishwanatha Pillai's case, Bank of India as well as the LIC.

37. In State of Tamil Nadu v. A. Gurusamy, reported in (1997) 3 SCC 542 : AIR 1997 SC 1199 wherein the authorities had found that the certificate obtained by the claimants to be wrong and therefore, illegal, and the Apex Court held that it was a fraud played on the Constitution. It was specifically held therein that “a person who plays fraud and obtains a false certificate cannot plead estoppel.” It was further observed that “The Courts would not lend assistance to perpetrate fraud on the Constitution and he cannot be allowed to get the benefit of the fraudulent certificate obtained from the authorities.”

38. In Punit Rai v. Dinesh Chaudhary., reported in (2003) 8 SCC 204, it was held that:—

“A person in fact not belonging to the Scheduled Caste, if claims himself to be a member thereof by procuring a bogus caste certificate, would be committing fraud on the constitution. No Court of law can encourage commission of such fraud.”

(Emphasis supplied)

39. In an unreported decision of a Division Bench in the Writ Petition No. 3895 of 1990 in the matter of Smt. Vandana Joseph Vaity v. State of Maharashtra, delivered on 10th March, 2003, the facts of the case disclose that the petitioner was acquitted by the JMFC in the criminal proceedings initiated against her for producing false caste certificate. Further, the decision proceeds on assumption that there is no indication in the said Act that the benefits already accrued under the existing Government Resolutions are taken away, without considering the scope of the provisions of the said Act and the law laid down by the Apex Court on the point in issue and in any case this decision was prior to the judgment of the Apex Court in R. Vishwanatha Pillai's case (supra) and in view thereof, the said decision cannot be held to be laying down the correct proposition of law.

40. The Division Bench of this Court in Sadhana Rajendra Karkud alias Sadhana Ramadas Shinde v. State of Maharashtra, reported in 2003 (4) Mh. L.J 859, wherein the caste claim of the petitioner was invalidated and consequently the certificate was cancelled, held that in view of such order of the scrutiny committee and keeping in mind the provisions of the said Act, the contention of the petitioner for protection contrary to the provisions of the said Act cannot be accepted. While reiterating the earlier decision in Mohan Parasnath Goswami v. Committee for Scrutiny of Caste Certificates, reported in 2003 (5) Mh. L.J 707 : (2003) 3 Bom. C.R 481 to the effect that on the basis of the report of the scrutiny committee and the order passed by it, appropriate action can be taken by the authorities. It was further held that keeping in mind the relevant statutory provisions, it cannot be contended that no action of termination of service of the petitioner can be taken and it was specifically ruled that:—

“In the light of the statutory provisions, when appointment of the petitioner was made on a post reserved for Scheduled Tribe, keeping in view the law laid down by the Supreme Court in Madhuri Patil and subsequent decisions, in our opinion, the prayer of the petitioner to consider her case on the basis of Resolution dated June 15, 1995 cannot be accepted, and is rejected.”

41. Similar is the decision in the matter of Priyanka Balmukund Khodke alias Kum. Pingla Keshavrao Parate v. State of Maharashtra, reported in 2004 (1) Bom. C.R 559.

42. In the recent decision by the Apex Court in Sandeep Subhash Parate v. State of Maharashtra, reported in 2006 (6) Mh. L.J (SC) 720 : 2006 AIR SCW 4555, after taking note of various decisions in the cases of Kumari Madhuri Patil (supra), Milind Katware (supra), R. Vishwanatha Pillai (supra), Avinash Mandivikar (supra), LIC of India (supra), Employees State Insurance Corporation v. Distilleries and Chemical Mazdoor Union, reported in 2006 AIR SCW 3672, Teri Oat Estates (P) Ltd. v. U.T, Chandigarh, reported in (2004) 2 SCC 130, A. Sudhakar v. Post Master General, Hyderabad, reported in 2006 (2) SCALE 524, held that in the peculiar facts of the case of Sandeep Parate, the admission to the professional course was granted in the year 1998 and for three years, he was not able to receive his degree of Engineer although he had pursued his studies after he passed 12th examination. In the background of those facts and just like in medical education, the State incurs heavy expenditure in imparting other professional education like Engineering, the Apex Court considered it appropriate not to go into the question as to whether there was any fraud played by Sandeep Parate in obtaining the certificate, and with reluctance accepted the fervent and impassionate plea made by the learned counsel appearing for the appellant that he be allowed to obtain the degree, the same relief was granted subject to payment of Rs. 1 lakh in favour of the State of Maharashtra with the rider that Sandeep Parate would not be entitled to claim any benefit flowing from the caste certificate obtained by him. Needless to say that the Apex Court in Sandeep Parate's case also granted relief purely on the basis of the peculiar facts of the case and bearing in mind the expenditure incurred by State for imparting education to the candidate. Besides, it is pertinent to note that the decision was delivered after the specific observation that the Court did not find any lack of bona fide on the part of Sandeep Parate. It was an order in exercise of powers under Article 142 of the Constitution of India.

43. It is settled law that the statutory provisions cannot be overridden by the Government resolution. Once the statutory provision denies protection to unscrupulous persons, no Government resolution providing protection contrary to such statutory provisions can be enforceable at law. The sphere which is covered by an Act cannot be allowed to be encroached upon by any Government resolution. The law in this regard is well settled.

44. In G.J Fernandez v. The State of Mysore, reported in AIR 1967 SC 1753, the Apex Court had ruled that under executive power, the State can give administrative instructions to its servants how to act in certain circumstances, but such instructions would not partake colour of statutory rules. In The Management of D.T.U v. Shri B.B.L Hajelay, reported in (1972) 2 SCC 744 : AIR 1972 SC 2452, it was held by the Apex Court that when a clear protection is given to an employee by a statutory provision, it cannot be sought to be nullified either by rules or regulations. In other words, any regulation to be made should be in conformity with the statutory provision and cannot be contrary thereto. Further, in K. Kuppusamy v. State of T.N, reported in (1998) 8 SCC 469, it was clearly ruled by the Apex Court that “statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules does not mean that the rule stood obliterated.” Similarly, the Apex Court in Anil Ratan Sarkar v. State of W.B, reported in (2001) 5 SCC 327 had ruled that “administrative ipse dixit cannot infiltrate on to an arena which stands covered by judicial orders.”

45. The learned Single Judge of this Court (Dr. D.Y Chandrachud, J.) in Anjuman Khairul Islam v. Mrs. Zulekha Mazhar Hussain, reported in 2001 (2) Mh. L.J 245 had also held that the letter and administrative instruction cannot override the provisions of rules which have a statutory character. Likewise, the Division Bench of this Court (S/Shri R.J Kochar and A.P Deshpande, JJ.) in Sudha d/o Bhaskarrao Saikhede v. Yashodabai Shikshan Sanstha, reported in 2003 (4) Mh. L.J 659 had clearly held that the clarification issued by the Government cannot be allowed to encroach upon the provisions of law comprised under Rule 36 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules and it must yield to the rules. Being so, the decision of the Division Bench in Surendra s/o Hanmanloo Gandam v. State of Maharashtra, reported in 2006 (1) Mh. L.J 308 is clearly contrary to the law laid down by the Apex Court in Kumari Madhuri Patil's case (supra), R. Vishwanatha Pillai's case (supra), LIC of India's case (supra), A. Gurusamy's case (supra), Punit Rai's case (supra), Bank of India's case (supra), Sandeep Parate's case (supra) read with the decisions in K. Kuppusamy's case (supra), The Management of D.T.U's case (supra) and G.J Fernandez's case (supra), as well as of the Division Bench of this Court in Sudha Bhaskarrao Saikhede's case (supra).

46. It was also sought to be argued that if we want to take a view contrary to the one taken by other Division Bench of this Court particularly in Surendra's case (supra), it would be appropriate to refer the matter to a larger Bench. We are aware that in case of disagreement with the view already taken on the point in issue by another Division Bench, the judicial discipline requires the matter to be referred to a larger Bench. Indeed, the Apex Court in Dr. Dr. Vijay Laxmi Sadho v. Jagdish., reported in (2001) 2 SCC 247, it was held that since the learned Single Judge was not in agreement with the view expressed by the earlier decision of another learned Single Judge of the same High Court, it was required to maintain judicial discipline to refer the matter to a larger Bench rather than expressing a different view. Similarly, in State of A.P v. V.C Subbarayudu, reported in (1998) 2 SCC 516, it was held that if the Division Bench wants to take a different view on the same point from the view already taken by co-ordinate Bench, then the rule of self-discipline requires that the matter to be referred to a larger Bench. However, that would be in a case where a Division Bench expresses a view different from and contrary to the one taken by the co-ordinate Bench. In a case where the view taken by the co-ordinate Bench already stands overruled, either expressly or impliedly, by a decision of the Apex Court, question of referring the matter to a larger Bench cannot arise. Obviously, a larger Bench of the High Court cannot take a view different from the view already expressed by the Apex Court. Indeed, the Apex Court in Delhi Development Authority v. Ashok Kumar Behal, reported in (2002) 7 SCC 135 : AIR 2002 SC 2940 has clearly ruled that “Inconsistency and contradiction in the orders passed by the same Court on the same point regarding the same scheme cannot be allowed to be continued or perpetuated. The law laid down by the Supreme Court is binding on all Courts within the territory of India.” This is essentially to avoid inconsistency and contradiction in the orders so as to bring about a certainty in the mind of the Subordinate Courts and litigating parties. We ourselves are not expressing any view contrary to the view expressed by the co-ordinate Bench, either in Surendra's case (supra) or any other decision by co-ordinate Bench of this Court. Suffice to observe that the said decision in Surendra's case (supra) is directly contrary to the law laid down by the Apex Court in the above referred cases. Being so, the contention about the need for a reference to a larger Bench is to be rejected.

47. As already seen above, the statutory provisions comprised under the said Act clearly provides for the consequences to be followed the decision of invalidation of the caste claim. Any circular, Government resolution whether it is issued prior to or after enforcement of the said Act, contrary to the said statutory provisions under the said Act, cannot be enforceable in law. Any executive fiat issued contrary to the statutory provisions cannot be legally enforceable. No right can be claimed on the basis of such resolution or executive fiat which seeks to defeat the very statutory provisions. Being so, no right or protection can be claimed on the basis of such G.Rs which are issued either prior to or after the enforcement of the said Act and which are contrary to the provisions of section 10 of the said Act.

48. Merely because no case of any fraud being played in obtaining the caste certificate is made out that by itself would not be sufficient to contend that the consequences specified under section 10 of the said Act would not follow even after invalidation of the caste claim. The invalidation of the caste claim and cancellation of the certificate would obviously invite consequences specified under the said provisions of law and employee or student, as the case may be, would not be entitled to claim any benefit under the alleged government resolutions. Albeit, exceptions have been made by the Apex Court in exercise of powers under Article 142 of the Constitution in a given case for the reasons recorded in those decisions in the peculiar facts of the cases of Milind Katware's case (supra) and Sandeep Parate's case (supra). Under any circumstances, the case of the respondent No. 2 is nowhere near the case of either Milind Katware (supra) or Sandeep Parate (supra).

49. The fall-out of the above discussion is that the points for consideration formulated above are to be answered in negative. It is to be held that the G.R dated 30th April, 2004 and the earlier G.Rs on similar lines would neither override the statutory provisions nor would avoid the consequences stipulated under sections 7 and 10 of the said Act pursuant to the invalidation of the caste/tribe certificate by the scrutiny committee and the said G.Rs cannot give protection to such students or employees in the face of the statutory provisions comprised under sections 7 and 10 of the said Act.

50. Still one more point sought to be raised in defence of the respondent No. 2's case in the present petition is that the order terminating the services on the ground of invalidation and cancellation of caste certificate was issued on 30th June, 2001, prior to the enforcement of the said Act. However, same would not make any difference as even prior to the enforcement of the said Act, the directions issued by the Apex Court were very much in force and the decision in R. Vishwanatha Pillai's case (supra) is very clear in that regard.

51. For the reasons stated above, therefore, the petition succeeds. The impugned judgment of the School Tribunal is hereby quashed and set aside along with the order dated 20th January, 2002 of the respondent No. 1 while confirming the order dated 30th June, 2001 passed by the petitioner in relation to the respondent No. 2. The rule is made absolute in above terms with costs.

Petition allowed.