1. This petition is not on board for final hearing. However, with the consent of parties it is taken on board for final hearing.
2. By this petition the Petitioners challenge the order Kambli passed by the Central Administrative Tribunal. The relevant facts are, admittedly the Respondent secured appointment under the Government of India claiming that he belongs to Halba Community, which is a scheduled tribe. Admittedly, his caste certificate was sent for verification to the Scrutiny Committee, which held that the claim of the Respondent that he belongs to Halba Tribe, which is a scheduled tribe is not true and it invalidated the caste certificate. That order was challenged by the Petitioner before the High Court. But that order was not disturbed by the High Court and was upheld. As the Respondent was found to be occupying a seat which is reserved for a scheduled tribe and as it was conclusively established that the Respondent does not belong to scheduled tribe, an order was issued terminating his service.
3. Original Application No. 419 of 2004 was filed by the Respondent before the Central Administrative Tribunal challenging the order of termination. That application has been decided by the CAT by its order dated 3rd March, 2005. The CAT held that though now it is conclusively established that the Respondent (Petitioner before the CAT) does not belong to scheduled tribe, his services cannot be terminated because of the directions issued by the Supreme Court in its judgment in the case of State of Maharashtra v. Milind, 2001 SCC (L&S) 117. The present petition has been filed challenging that order of the CAT.
4. We have heard the learned Counsel appearing for both sides.
5. The learned Counsel appearing for the Petitioners relies on the judgment of the Supreme Court in the case of Union of India v. Dattatray s/o Namdeo Mendhekar, (2008) 2 SCC (L&S) 6, specially the observations found in paragraphs 5 & 6 of that judgment.
6. The learned Counsel appearing for the Respondent, however, relies on the Office Memorandum dated 10th August, 2010 signed by the Director in the Ministry of Personnel, Public Grievances and Pensions to claim that despite the order of the Supreme Court in the case of Dattatray Mendhekar (supra), the directions of the Supreme Court in the case of Milind (supra) are applicable in relation to service also.
7. Perusal of the judgment of the CAT, which is impugned in the petition shows that, though it is conclusively established that the Respondent does not belong to any scheduled tribe and that he occupied the seat which is reserved for scheduled tribe, termination of his service is held to be invalid by the CAT only because of the directions issued by the Supreme Court in Milind's case. The Supreme Court in the case of Dattatray Mendhekar was considering identical controversy. What is observed by the Supreme Court in paragraphs 5, 6 & 7 of that judgment, in our opinion, is relevant. It reads as under:
5. Milind (supra) related to a Medical College admission. The question that arose for consideration in that case was whether it was open to the State Government or Courts or other authorities to modify, amend or alter the list of Scheduled Tribes and in particular whether the “Halba-Koshti” was a sub-division of ‘Halba’ Tribe. This Court held that it was not permissible to amend or alter the list of Schedule Tribes by including any sub-divisions or otherwise. On facts, this court found that the respondent therein had been admitted in medical course in ST category, more than 15 years back; that though his admission deprived a scheduled tribe student of a medical seat, the benefit of that seat could not be offered to scheduled tribe student at that distance of time even if respondent's admission was to be annulled; and that if his admission was annulled, it will lead to depriving the services of a doctor to the society on whom the public money had already been spent. In these peculiar circumstances, this Court held that the decision will not affect the degree secured by respondent or his practice as a doctor but made it clear that he could not claim to belong to a Scheduled Tribe. But the said decision has no application to a case which does not relate to an admission to an educational institution, but relates to securing employment by wrongly claiming the benefit of reservation meant for Schedule Tribes. When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to scheduled caste/tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation.
6. In this context, we may also refer to the decisions in Bank of India v. Avinash D. Mandivikar (2005) 7 SCC 690 and Additional General Manager Human Resources, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde, (2007) 5 SCC 336, wherein this Court held that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. In the latter case, this Court explained Milind thus:
“7. The High Court has granted relief to the respondent and has directed his reinstatement only on the basis of the Constitution Bench decision of this Court in State of Maharashtra v. Milind. In our opinion the said judgment does not lay down any such principle of law that where a person secures an appointment by producing a false caste certificate, his services can be protected and an order of reinstatement can be passed if he gives an undertaking that in future he and his family members shall not take any advantage of being member of a caste which is in reserved category.”
This Court further held that even in cases of admission to educational institutions, the protection extended by Milind (supra) will be applicable only where the candidate had successfully completed the course and secured the degree, and not to cases where the falsehood of the caste certificate is detected within a short period from the date of admission.
7. We are of the view that the High Court failed to appreciate the ratio of Milind. Having held that the first respondent had falsely claimed that he belonged to a Schedule Tribe, it wrongly extended him the benefit of continuing in employment.”
8. Thus, the Supreme Court has laid down as law that the directions issued by the in Milind's case have no application to a case which does not relate to admission to an educational institution but relates to securing employment by wrongly claiming the benefit of reservation meant for scheduled tribes. The Supreme Court in categorical terms held that where a person secures employment by making a false claim regarding caste/tribe and deprives a legitimate candidate belonging to scheduled tribe/caste of employment, “in such a situation proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation”.
9. In view of this clear law laid down by the Supreme Court, the order of the CAT is bound to be set aside. So far as the Office Memorandum dated 10 August, 2010 is concerned, it does not appear to have any statutory force. It does not appear to have been issued in exercise of executive power because it is not authenticated in the name of the President of India. It appears to be a letter written by one officer of the Government of India. It does not have any binding effect, because it is contrary to the law laid down by the Supreme Court in Dattatray Mendhekar's case.
10. In our opinion, therefore, the order of the CAT which is contrary to the binding decision of the Supreme Court in Mendhekar's case, has to be set aside.
11. In the result, therefore, the petition succeeds and is allowed. The order passed by the CAT impugned in the petition is set aside.
12. In view of disposal of Writ Petition, Civil Application No. 1803 of 2011 does not survive for consideration. Disposed of as such.