SUPREME COURT OF INDIA
Sandeep Subhash Parate
Vs
State of Maharashtra and Others
Appeal (Civil) 3633 of 2006
(S. B. Sinha and Dalveer Bhandari, JJ)
24.08.2006
S. B. SINHA, J.
Leave granted.
The appellant claims himself to be a member of 'Halba' community. 'Halba' is a
Scheduled Tribe. He obtained admission in the courses of Bachelor of
Engineering (Instrumentation Engineering) in Pune University, (Respondent
No.4), claiming himself to be belonging to 'Halba' a Scheduled Tribe community.
According to the appellant, the question as to whether 'Koshti-Halbas' are
members of Scheduled Tribe or not had been authoritatively decided for the
first time in State of Maharashtra vs. Milind & Ors. 5 and in that view of the matter, he had represented
himself to be a member of Scheduled Tribe. Drawing our attention to the fact
that even in Milind (supra), this Court directed that those, who have completed
their courses from the universities, should be allowed to obtain degrees and
get the benefit thereof as general candidates; the appellant was also entitled
to a similar relief.
Indisputably, the Caste Scrutiny Committee constituted in terms of the decision
of this Court in Kumari Madhuri Patil & Anr. vs. Additional Commissioner,
Tribal Development & Ors. Invalidated the caste certificate granted
in favour of the appellant. In the writ petition filed by him thereagainst, an
interim order was passed in his favour, in terms whereof he obtained admission
in the course of Bachelor of Engineering (Instrumentation Engineering) in the
Government Engineering College, Pune, which is affiliated to the respondent
No.4-University. The High Court allowed the writ petition and remitted the
matter back to the Scrutiny Committee. His claim was rejected by the Scrutiny
Committee by an order dated 30th September, 2002. In a writ petition filed by
him before the Nagpur Bench of the Bombay High Court questioning the said order
of 30th September, 2002, no interim relief was granted, but, the appellant
continued with his studies. The said writ petition was dismissed for default,
but, it was restored. He completed his studies in the year 2004. He appeared at
the examination. An application was filed by him for a direction to respondent
No.4-University to supply him the degree along with the marksheet. However, in
the meantime, the writ petition itself was dismissed on merits. Thus, no order
was also passed on the said application. The review application filed by the
appellant herein has been dismissed by the High Court by reason of the impugned
order.
The learned counsel appearing on behalf of the appellant merely urged that this
Court may issue a direction to the University to grant him the degree as he has
completed his courses of studies in the meantime.
Mr. Ravindra Kumar Adsure, learned counsel appearing on behalf of the State and
Mr. Makrand D. Adkar, learned counsel appearing for respondent No.4-University,
however, submitted that the appellant has not made out any case for obtaining
any relief from the High Court having failed to show his bona fide.
It was urged that as the appellant has played fraud on the statutory
authorities, he is not entitled to any equitable relief. Reliance has been
placed on Bank of India & Anr. vs. Avinash Mandivikar & Ors. and
Ram Saran vs. I.G. of Police, C.R.P.F. & Ors. 2006 (2) SCALE 131.
It now stands admitted that the appellant did not belong to 'Halba' community.
He was a Koshti. On verification of his caste certificate the Vigilance Cell
found that his school records clearly showed that the appellant belonged to the
Koshti community.
The question as regards invalidation of caste certificate came up consideration
before this Court in Kumari Madhuri (supra), wherein this Court directed the
Central Government and the State Governments to constitute Caste Scrutiny
Committees to go into such issues as and when they arise for consideration.
Indisputably, a finding of fact has been arrived at by the Caste Scrutiny
Committee against the appellant negativing his claim that he is a member of
Scheduled Tribes. However, the fact remains that he got himself admitted in
view of an interim order passed by the High Court. Indisputably, the question
as to whether 'Koshti-Halbas' are members of Scheduled Tribe or not was
authoritatively answered only in Milind (supra), which was decided on 28th
November, 2000, wherein it was observed :
"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
may be he is practising as a doctor. In this view and at this length of time it
is for nobody's benefit to annul his admission. Huge amount is spent on each
candidate for completion of medical course. No doubt, one Scheduled Tribe
candidate was deprived of joining medical course by the admission given to
Respondent 1. If any action is taken against Respondent 1, it may lead to
depriving the service of a doctor to the society on whom public money has
already been spent. In these circumstances, this judgment shall not affect the
degree obtained by him and his practising 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."
Yet again in R. Vishwanatha Pillai etc. vs. State of Kerala & Ors. etc.
a Three Judge Bench of this Court had the occasion to deal with a
similar issue. Following Milind (supra), this Court held:
"In this case we find that the appellant had joined Regional
Engineering College in the year 1992. He completed the course of his studies in
the year 1996 under the interim orders of (sic the High) Court which were
subject to the final orders to be passed in the writ petition. No purpose would
be served in withholding the declaration of the result on the basis of the
examination already taken by him or depriving him of the degree in case he
passes the examination. 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."
A different opinion, however, was struck in Bank of India & Anr. vs.
Avinash D. Mandivikar & Ors. , wherein a Two Judge Bench of this
Court distinguished Milind (supra) and R. Vishwanatha Pillai (supra) stating
that protection given therein cannot be extended to an employee of a Bank and,
thus, the factors which weighed with this Court cannot be applied to the
respondent therein. The Court observed that in any event, if Respondent No.1
had played fraud, he should not be allowed to get the benefits thereof. The
same learned Judge in Ram Saran (supra) held that leniency should not be shown
to a person who admittedly committed forgery.
The issue again came of up consideration in LIC of India vs. Sushil 2006
(2) SCC 471, wherein this Court remitted the matter back to the High Court
observing that :
"Before us it was urged on behalf of Respondent 1 that in the State of
Maharashtra at the relevant time there were resolutions/government orders which
made the respondent believe that there was no fraudulent intention in claiming
to be Halba. Mr. Lalit, learned counsel for the respondent submitted that none
of these aspects (including various GRs) have been considered. The High Court
in the present case proceeded on the basis as if mere filing of an undertaking
in the line suggested by the writ petitioner was sufficient to bring the case
under the umbrella of the decision in Milind case. That is clearly not so. As
the High Court has not considered the matter in its proper perspective, except
relying on Milind case we think it appropriate to remit the matter to the High
Court for a fresh consideration on merits of the case on the grounds, if any,
without being influenced by any observation in this order."
Some peculiar characteristics exist in this case:
1) The appellant competed his substantial tenure as a student under the interim
orders passed by the High Court.
2) No opportunity of hearing was given to him by the Scrutiny Committee at the
first instance and his first writ petition was allowed.
3) Although, in the second writ petition, he could not obtain any interim
order, yet he was allowed to continue his studies without any demur by the
State and University authorities.
4) He filed an application after completion of his studies that respondent
No.4-University should be directed to issue to him the degree of Bachelor of
Engineering. No order was passed thereupon.5)
A review application was filed on the basis that the Bench did not take into
consideration the decision of this Court in Milind (supra).
A person indisputably is not entitled to a relief only because an interim order
was passed in his favour, but the premise on which such an interim order was
passed would assume some significance in the instant case in so far as a
presumption may be drawn that prima facie the appellant was not considered
guilty of commission of fraud and the possibility that the question in regard
to his status as a member of Scheduled Tribe as the issue as to whether
'Koshti-Halbas' were members of Scheduled Tribe had not been finally
determined, was in the mind of the court. {See for example, Employees
State Insurance Corporation vs. Distilleries & Chemical Mazdoor Union &
Ors. 2006 (7) SCALE 171.} The appellant took his admission in the year
1998, i.e., prior to the decision of this Court in Milind (supra). It is true
that he had obtained his admission in a professional institution not purely on
the basis of his merits but on the basis that he belonged to a reserved
category. It is also true that thereby he might have deprived a genuine student
of reserved category from obtaining admission, but, in a case of this nature,
what is necessary to bear in mind is the bona fide or otherwise of the
appellant. He might not have semblance of right as was observed by the High
Court but as the learned counsel for the appellant states that he might have
been under a bona fide belief that Koshti-Halbas were members of a Scheduled
Tribe.
It is not in dispute that the Bombay High Court held so. However, as it appears
from the decision of this Court in LIC (supra) that the State might have also
issued some Government orders making such declaration. Indisputably, the
conduct of a party assumes significance in moulding the relief. This court,
while exercising its discretionary jurisdiction and to do complete justice
between the parties in terms of Article 142 of the Constitution of India, must
consider all relevant aspects of the matter, including the decisions of this
Court. The doctrine of proportionality emerging from the recent trend of
decisions in preference to the doctrine of Wednesbury unreasonableness is also
a factor which weighs with us. {See Teri Oat Estates (P) Ltd. vs. U.T.,
Chandigarh & Ors. 2004 (2) SCC 130 and A. Sudhakar vs. Post Master
General, Hyderabad & Anr. 2006 (3) SCALE 524.}
We do not find any lack of bona fide on the part of the appellant. He, it will
bear repetition to state, got admission in the professional course as far back
in the year 1998. For about last three years, he had not been able to receive
his degree of Engineering, although, he pursued his studies after he had passed
class 12th examination. Just like Medical Education, the State also incurs a
heavy expenditure in imparting other professional education like Engineering.
We, in the peculiar facts and circumstances of this case, are not inclined to
go into the question as regards purported commission of fraud by the appellant,
particularly, when the University admitted him without any demur whatsoever. We
are doing so having regard to the doctrine of proportionality. The appellant
has suffered a lot. He might not be entirely responsible therefor. He might
have been under a bona fide belief that he comes within the purview of notified
category. We, therefore, albeit with much reluctance accept the fervent and
impassionate plan made by the learned counsel appearing for the appellant that
he be allowed to obtain the degree. The same shall, however, be subject
to payment of Rs.1 lakh in favour of the State of Maharashtra so as to
recompense the State to some extent the amount spent on him for imparting
education as a reserved category candidate. Such payment must be made within
three months from this date. On filing satisfactory proof of the deposit of
such an amount, the respondent No.4 shall immediately issue the degree in his
favour. The appellant shall not claim any benefit flowing from the caste
certificate obtained by him, which shall stand cancelled. In future, for all
purposes he will be treated to be a person belonging to the general category.
The appeal is allowed to the extent mentioned hereinbefore and on the
aforementioned terms. No costs.