TMI Blog2005 (10) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... another order dated September 5, 2001, the respondent No. 3 held that the petitioner was entitled to be confirmed in service as a Junior clerk. 3. Since appointment of the petitioner was against a post reserved for Scheduled Tribe, the claim of the petitioner, which was based on the basis of the Caste Certificate issued to the petitioner by the Executive Magistrate, Arjuni Morgaon, dated 22-8-1988, came to be referred by his employer to the respondent No. 2. The Scheduled Tribe Caste Scrutiny Committee (hereinafter referred to as the Committee ). The respondent No. 2-Committee came to the conclusion that the petitioner did not belong to the Tribe 'Halba', but he belongs to caste Koshti and as such, it invalidated the claim of the petitioner vide order dated September 23, 2002. The petitioner, thereafter approached this Court challenging the order passed by respondent No. 2-Committee. It appears that during pendency of the petition, the petitioner's services came to be terminated vide order dated December 12, 2002. The petitioner, therefore, amended the petition so as to challenge his termination. 4. Initially, vide order dated January 29, 2003, this Court g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution Bench of the Apex Court, having regard to passage of time and circumstances and other related affairs, made it clear that admissions and appointments that have become final shall remain unaffected by the said judgment. He submits that another Bench of the Apex Court in the case of Sanjay Punekar v. State of Maharashtra 2002(1) Mh.L.J. (SC) 300 has also held that taking notice of passage of time the Apex Court in the case of State of Maharashtra v. Milind Katware (cited supra) has made its order prospective keeping unaffected appointments that have become final. He submits that not only this but in several other matters another Bench of the Apex Court has granted protection to the admissions and appointments which have become final in view of the prospective applicability of the judgment and order passed in the case of State of Maharashtra v. Milind (cited supra). The learned Counsel submits that not only this, but in the case of R. Vishwanatha Pillai v. State of Kerala and Ors. reported in AIR 2004 SC 1469 itself the Apex Court has protected the admission of the son of R. Vishwanatha Pillai to Engineering Course in view of the law laid down in the case of State v. Milin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enquire as to whether Patars are Mundas or not. The Apex Court on consideration of the evidence took a view that Patars are sub-tribes of Mundas and that they are not different from Mundas. The Apex Court also rejected the contention that since Patars are not specifically mentioned in the List they cannot be included in general heading Munda. The Apex Court in the case of Bhaiya Ram Munda relied on the judgment of the Constitution Bench of the Apex Court in the case of B. Basavalingappa v. D. Munichinappa reported in [1965] 1 SCR 316. In the said case, since in the Presidential Order Bhovi caste was included and that there was no caste in the then Mysore State which was known as Bhovi, the Constitution Bench found that it was necessary to find out as to which caste was meant by the use of name Bhovi and for that purpose, recording of evidence was permissible. The Apex Court in the case of Bhaiya Ram Munda (cited supra) has also referred to the judgment of the Constitution Bench in the case of Bhaiyalal v. Harikishan Singh and Ors. reported in [1965] 2 SCR 877. It can thus be seen that the Apex Court in the case of Bhaiya Ram Munda had sought support from the judgment of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhaiya Ram Munda (cited supra), which had in turn sought support from the judgment of the Constitution Bench in the case of B. Basavalingappa (cited above) had reiterated its earlier view that Halba Koshti is a sub-tribe of 'Halba/Halbi' as per entry No. 19 . 13. It can further be seen that this doubt was cleared when the judgment of the Apex Court in the case of State of Maharashtra v. Milind Katware was delivered on 28-11-2000. The Apex Court held that the entry in the Presidential Order has to be read as it is and it is not permissible to say that the tribe, sub-tribe part or a group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribe order, if not so specifically mentioned. The Constitution Bench of the Apex Court found that the view taken by the Division Bench of the Apex Court in the cases of Bhaiya Ram Munda and Dina (cited supra) was not a correct view. The Apex Court also found that reliance placed by the Division Bench of the Apex Court in the case of Bhaiya Ram Munda on the judgment of the Constitution Bench of the Apex Court in the case of B. Basavalingappa was not well placed. As such, the judgments delivered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seen that the Apex Court itself in the case of State of Maharashtra v. Milind Katware has made it clear that the admissions and appointments that have become final shall remain unaffected by the said judgment. Not only this, but the Division Bench of the Apex Court in the case of Sanjay Punekar has also made it clear that the order in the case of State v. Milind Katware was prospective keeping unaffected the admission and appointments that had become final. Not only this, but another Division Bench of the Apex Court in about 18 matters has protected admissions and appointments which had become final vide order dated December 12, 2000. 17. Insofar as the judgment of the Apex Court in the case of R. Vishwanatha Pillai (cited supra) is concerned, it can be seen that, in the reported judgment, the Apex Court was considering two appeals; one by R. Vishwanatha Pillai and the other by his son Vimal Ghosh V. In the aforesaid case, R. Vishwanatha Pillai who had obtained the Caste Certificate of belonging to Vettuvan community, which was recognized as a Scheduled Caste and as such, obtained appointment to the post of Deputy Superintendent of Police against a seat reserved for the Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the said Caste Certificate. 18. However, the Apex Court in the case of R. Vishwanatha Pillai (cited supra) itself, while considering the appeal filed by his son who had joined the Regional Engineering College, has observed thus : In terms of the orders passed by the Constitution Bench of this Court in State of Maharashtra v. Milind we direct that his result be declared and he be allowed to take his degree with the condition that he will not be treated as a Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing from the caste certificate obtained by him. His caste certificate has been ordered to be cancelled. Henceforth, he will be treated as a person belonging to the general category for all purposes. 19. It can thus be seen that though the Apex Court found that the said R. Vishwanath Pillai had obtained appointment in service by playing fraud and it did not protect his service, the Apex Court protected admission of said R. Vishwanath Pillai's son in the Engineering Course by applying the principle laid down by the Constitution Bench of the Apex Court in the case of State of Maharashtra v. Milind (cited supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also clearly observed that the Constitution Bench in the case of State v. Milind Katware has made its order prospective keeping the appointments that had become final unaffected. Not only this, but another Division Bench of the Apex Court in Civil Appeal No. 3102 of 1998 has also protected various admissions and appointments on the basis of the observations made by the Constitution Bench in the case of State v. Milind Katware. The Division Bench consisting of three Hon'ble Judges in the case of R. Vishwanatha Pillai have also protected the admission of the son of R. Vishwanatha Pillai to the Engineering Course on the basis of observations made by the Apex Court in the case of State of Maharashtra v. Milind. 22. We are, therefore, of the view that the judgment of the Apex Court in the case of R. Vishwanatha Pillai (cited supra) would not be applicable in the facts of the present case. In the case of R. Vishwanatha Pillai, it was proved beyond doubt that R. Vishwanatha Pillai who was belonging to the higher caste had obtained a false Certificate of belonging to the Scheduled Caste and as such, obtained appointment by playing fraud. However, in the said case, the Apex Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the judgment of the Constitution Bench in the case of State v. Milind Katware the Division Bench of the Apex Court in the case of Sanjay Punekar and the orders passed by the Apex Court in the bunch of matters bearing Civil Appeal No. 3102 of 1998 with other matters, the judgment and order in the case of State v. Milind Katware has been made prospectively operational and the Apex Court has protected all such admissions and appointments that have become final. We reiterate that Halba Koshtis in the Vidarbha region of the State of Maharashtra stand on different pedestal in view of the position that we have discussed hereinabove. 26. It is not the case of the respondents herein that the petitioner had obtained false Caste Certificate on the basis of fraudulent claim. At the cost of reiteration, we state that there was a doubt regarding the position of Halba Koshtis in the Vidarbha region which was made clear by the Apex Court in the case of State v. Milind on 28-11-2000. It is also not the case of the respondents that the petitioner herein had obtained the appointment on the basis of fraudulent claim. We, therefore, find that the petitioner's appointment, which was muc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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