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2016 (9) TMI 165 - SUPREME COURT

2016 (9) TMI 165 - SUPREME COURT - TMI - Eligibility of appointment - caste reference - Whether the subject appointment of the appellant to the post of “Chemical Examiner” in Customs and Central Excise Department has in fact become final? - held that:- In none of the cases pressed into service by the appellant, the appointment, as in this case, was on provisional basis and subject to verification of caste certificate through proper channel. It necessarily follows that the principle expounded in .....

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titution Bench), have been validated irrespective of the opinion of the Scrutiny Committee qua those certificates. That cannot be countenanced. For, caste “Koshti” is neither a synonym nor part of a notified Scheduled Tribe “Halba” in Maharashtra. - Considering the above, the appellant is not entitled for any relief on the finding that his appointment as Chemical Examiner in the Customs and Central Excise Department vide appointment letter dated 16th June, 1995 had not attained finality. Not .....

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attain finality. The Scrutiny Committee has unambiguously held that the 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 dated 8th June, 2004. - Civil Appeal No. 9182/2012 - Dated:- 12-8-2016 - Mr. A.M. Khanwilkar J. Mr. Rajesh Prasad Singh, Adv. for the Appellant. JUDGMENT A.M. KHANWILKAR, J. This appeal challenges the judgmen .....

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stated, the appellant was appointed as Chemical Examiner Grade-I in the Customs and Central Excise Department in the pay scale of ₹ 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 appointm .....

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iner 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. .....

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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 cas .....

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cedural 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 Resolu .....

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e 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 ap .....

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n 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 befor .....

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onging 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 .....

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lba 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 Union of India v/s. Dattatray s/o Namdeo Mendhekar and Ors2, allowed the writ petition and restored the termination order dated 8th June, 2004. The appellant has, therefore, approached this Court by way of present appeal. 6. The principal a .....

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ing to the appellant, following the consistent view of this Court, the appointment, even in the case of the appellant, should be protected. For, the claim of the appellant was not a false claim, but a bona fide claim founded on the entries in the school record and the certificate issued by the Executive Magistrate. It is not a case of false or dishonest claim set up by the appellant; or for that matter fabrication of records or reliance placed on fraudulent caste certificate. 7. Per contra, the .....

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e on the post reserved for Scheduled Tribes. 8. Before we proceed further, it would be apposite to reproduce the relevant portion from the decision of the Constitution Bench, in Milind s case which is the fulcrum for claiming protection by the appellant. In paragraph 38, in that decision, the Court observed thus:- 38. Respondent 1 joined the medical course for the year 1985-86. Almost 15 years have passed by now. We are told he has already completed the course and maybe he is practicing as a doc .....

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e degree obtained by him and his practicing as a doctor. But we make it clear that he cannot claim to belong to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words, he cannot take advantage of the Scheduled Tribes Order any further or for any other constitutional purpose. Having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No. 16372 of 1985 and other related matters, we make it clear that the admissions .....

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appellant to the post of Assistant Chemist, in the Geological Survey of India, was confirmed in terms of Notification No. 1225 B/ A-31013/Asstt. Chemist/95-19C, dated 5.5.1995 with effect from 15th May, 1988, his appointment to the post of Chemical Examiner in the Customs and Central Excise Department with which we are concerned was provisional and subject to verification of his caste claim of Halba . It was not treated as final by the Department till the impugned termination order was issued. .....

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ssed into service by the appellant. 10. Admittedly, the appellant was appointed to the post of Chemical Examiner in the Customs and Central Excise Department, where he joined on 24th November, 1995, pursuant to the appointment letter bearing No. F.No.A-12026/7/91-AD.II-B, dated 16th June, 1995. Condition No. (vii) therein unambiguously mentions that as the appointment of the appellant was against the post reserved for Scheduled Tribes, it was provisional and subject to verification of his caste .....

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nd joined another Department of Government of India, that would not extricate the appellant from the requirement of verification of his caste claim of Halba , a notified Scheduled Tribe in Maharashtra. For, the appointment of the appellant as Chemical Examiner Grade-I in Customs and Central Excise Department in terms of Appointment Letter Dated 16th June, 1995 (Annexure P10), was to a temporary post, on provisional basis and subject to verification of his caste certificate through a proper chann .....

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of the appellant having attained finality could not be disturbed. Indeed, the Court noted that there was nothing to indicate that the caste certificate of the appellant was false, fabricated or manipulated by concealment or otherwise. That observation is in the context of the matter in issue before the Court, for passing an order in equity. Even in the next case, in Shalini (supra) which follows the dictum in Kavita s case, it is seen that the appointment of the appellant as an Assistant Teacher .....

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as insisted because of the subsequent Presidential Order excluding the concerned caste from the entry notified under notification dated 31st August 2007. The Court, inter alia, opined that it was not open to reconsider the settled judicial pronouncement on the caste claim inter partes. 12. In none of the cases pressed into service by the appellant, the appointment, as in this case, was on provisional basis and subject to verification of caste certificate through proper channel. It necessarily fo .....

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