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TMI Blog2008 (8) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain an independent special leave questioning the judgment of a High Court setting aside an order of the Schedule Tribe Caste Certificate Scrutiny Committee is the question involved herein. 3. Before, however, we advert thereto, we may notice the admitted factual matrix of the matter. Respondent No. 1 claims himself to be a member of Schedule Tribe being belonging to Halba tribe notified in terms of the Constitution (Scheduled Tribes) Order, 1950. Respondent No. 1 and his family members are highly educated. The caste of his father in the school records was shown as Koshti whereas the caste of his uncle was also shown as Koshti which was, however, later on corrected as Halba . One of his cousins Ku. Sandhya Manohar Bhivapurkar, daughter of the uncle of the respondent No. 1, was also granted a certificate as belonging to the Halba community. 4. An intricate question as to whether Koshti is a sub-caste of Halba or Halbi came up for consideration before a Division Bench of the Bombay High Court in Milind Sharad Katware and others v. State of Maharashtra and others [1987 Mh. L.J. 572]. In the said judgment, the Division Bench inter alia referred to the report o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bombay High Court following its decision in Milind Sharad Katware (supra) allowed the said writ petition by an order dated 11.08.1988 stating: 1. This petition relates to the caste claim Halba. Petitioner s father s real elder brother has been adjudicated as belonging to Scheduled Tribe. 2. In the case of Milind Sharad Katware Vs. State of Maharashtra (1987 Mah. Law Journal 572), we have taken a view that it is impermissible to take inconsistent view between the cases of near relatives in such matters. Hence the impugned orders are quashed and set aside. The petitioner is declared to be belonging to Scheduled Tribe Halba. 5. It is of some significance to note that the Government of Maharashtra appointed an Expert Committee known as Ferriera Committee. It submitted its report in the year 1985. In its report, the Expert Committee stated: The Halba/ Halbi Tribe, as per the Constitution (Scheduled Tribes) Order, (1950) read with Part IX of the second schedule to the Scheduled Castes, Scheduled Tribes Order (Amendment) Act (1976) has been declared a scheduled Tribe in the State of Maharashtra and has appeared at Sr. No. 19 in the schedule. The members of the caste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts overwhelmingly indicate that the Koshtis are concentrated in cities and towns like Nagpur, Bhandara Umred and so on, whereas the Halba tribals are largely located in the hilly and forest areas of Bhandara and Gadchiroli districts. Thus with the weight of evidence before it, the Expert Committee concludes that there are no decisive social, ethnic, linguistic, religious and other affinities between the Halba Koshi subcaste of the Koshti caste, on the one hand and the Halba tribe in Maharashtra, on the other. 6. The case of the respondent No. 1 was referred to the Schedule Tribe Certificate Scrutiny Committee. The Committee held: Thereafter the Scrutiny Committee decided to conduct school enquiry of the case and approached the primary school of the candidate s father i.e. Mangalwari Prathmik Shala, Umrer, District Nagpur. In the enquiry with the school it was revealed that the father of the candidate had studied in this school from 1946 to 1950 and his caste has been recorded as Koshti, at Sr. No. 3100. This shows that the caste of the candidate s father was recorded as Koshti. This is pretty old record pertaining to period prior to the passing of the Constitution Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the said order was passed on a wrong premise. Its validity was not questioned. 8. In Milind Sharad Katware (supra), this Court by a judgment and order dated 28.11.2000 (hereinafter referred to as Milind ) held: 1. It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950. 2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. 3. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of time of issue of caste validity certificate by the Caste Certificate Scrutiny Committee i.e. respondent No. 3 as he is topping the list of Scheduled Tribe employee in the cadre of Field Officer as per circular letter dated 3.12.2002. 11. It is of some significance to notice that in the original writ petition, the employer was not a party. In the interlocutory application, however, it was impleaded as a party. 12. Before we advert to the impugned judgment of the High Court, we may notice that the Maharashtra Pollution Control Board issued a circular on or about 14.12.2004 directing: As per aforementioned referred letter, it is communicated to you about submission of Scheduled Tribe Officer/ Employee Caste Validity Certificate. And those officers/ employees who are not having caste validity certificate their record pertaining to Caste Certificate is to be sent to verification committee. But the office heads has not looked into the matter specifically and acted accordingly. You are communicated once again vide this letter that those officer/ employee in your office which are ST there caste validity certificate is to be submitted to establishment branch without f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the High Court is wholly without jurisdiction being contrary to the decision of this Court in Milind as well as a large number of decisions following the same, the impugned judgment cannot be sustained. 14. Mr. A.V. Savant, learned senior counsel appearing on behalf of the respondents, on the other hand, would contend that the claim of the respondent No. 1 had never been advanced on the basis that he belongs to Koshti, a sub-caste of Halba tribe but all along the same had been advanced on the basis that he belongs to the said tribe. Contending that the Division Bench of the Bombay High Court in its judgment dated 11.08.1988 having held that the respondent No. 1 should be declared to be belonging to Halba tribe on the premise that his other relatives had been declared as such, no exception to the impugned judgment can be taken and for the aforementioned purpose, the caste certificates granted to the father of the respondent No. 1, his uncle and the cousin could be relied upon. The learned counsel would urge that it would be incorrect to contend that this Court in Milind had overturned the decision of the High Court that the test of scrutiny as regards the traits of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1996) 3 SCC 576] The Parliament, it is trite, alone can amend the law and the schedule for the purpose of including or excluding therefrom a tribe or tribal community or part of or group within the same in the State, district or region and the declaration made by the Parliament is conclusive. For the said purpose, the court does not have any jurisdiction so as to enable it to substitute any caste and tribe. 17. It is not correct to contend that the Bombay High Court in Milind Sharad Katware (supra) was not concerned with the question as to whether Halba Koshti is a sub-tribe of Halba or Halbi. It in fact considered the said question in great depth. It referred to a large number of judgments. The doctrine of stare decisis was applied. 18. Milind was applied in a large number of cases. Some of the judgments had been accepted by the Government. It is in the aforementioned backdrop, this Court in Milind opined: 31. The High Court applied the doctrine of stare decisis on the grounds that the decisions referred to above were considered judgments; even the Government accepted their correctness in the courts; the State Government independently took the same view after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes on which the inquiry should be held before issue of the caste certificate. Another resolution dated 24.2.1981 was also issued for appointing a Scrutiny Committee to verify whether the caste certificate has been issued to a person who is really entitled to it in view of the complaints of misuse of reservational benefits on a large scale. These resolutions were operative as they had not been repealed. This Court in its judgment dated 19-10-1984 State of Maharashtra v. Abhay directed that the State of Maharashtra should devise and frame a more rational method for obtaining much in advance a certificate on the strength of which a reserved seat is claimed. But the High Court committed an error in interpreting the scope of the circular dated 31-7-1981 that the School Leaving Certificate was conclusive of the caste. This interpretation was plainly inconsistent with the instructions and resolutions stated above. Further, it may be also noticed here that the Joint Parliamentary Committee did not make any recommendation to include Halba-Koshti in the Scheduled Tribes Order. At any rate the Scheduled Tribes Order must be read as it is until it is amended under clause (2) of Article 34 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived at by a committee authorised in this behalf concludes that a person is not a member of the Scheduled Tribe would remain operative unless set aside by a superior court. The judgment of the High Court in favour of the respondent No. 1 was rendered on a wrong premise. The claim of the respondents may be that he belonged to the Halba tribe but, therefor, no factual foundation was placed before the High Court. The High Court relied solely on its earlier decision to hold that Koshti would come within the purview of the Scheduled Tribe of Halba or Halbi. The decision was rendered in 1988. The records maintained by the school where the respondent studied were not placed before the High Court. Only when the Caste Scrutiny Committee, a statutory committee, proceeded to enquire into the matter, the truth came out. We do not mean to suggest that an opinion formed by the Committee as regards the caste of the near relative of the applicant would be wholly irrelevant, but, at the same time, it must be pointed out that only because, by mistake or otherwise, a member of his family had been declared to be belonging to a member of the Scheduled Tribe, the same by itself would not be conclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interpretation of Article 371D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case." A Three Judge Bench of this Court in Ashok Leyland Ltd. v. State of Tamil Nadu and Anr. [(2004)3SCC1], held: 120. The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, waiver or res judicata. [See also Dwarka Prasad Agarwal (D) By LRs. and Anr. v. B.D. Agarwal and Ors. ( 2003 ) 6 SCC 230, Union of India v. Pramod Gupta (2005) 12 SCC 1 and National Institute of Technology and Ors. v. Niraj Kumar Singh (2007) 2 SCC 481] 25. So far as the second principle, noticed by us, is concerned, there is no dearth of authority. Fraud vitiates all solemn acts. When an order has been obtained by practising fraud on the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maharashtra Pollution Control Board afresh. The decision of the High Court ex facie is unsustainable. 27. We may at this juncture notice some decisions of this Court where the question at hand has been discussed. In State of Maharashtra and Others v. Ravi Prakash Babulalsing Parmar and Another [(2007) 1 SCC 80], this Court held: 23. The makers of the Constitution laid emphasis on equality amongst citizens. The Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter. 24. We, with respect, fail to appreciate the approach of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson cannot get a benefit to which he is not otherwise entitled to. 28. Our attention has been drawn to the fact that the appellant herein had filed applications for leave to file two special leave applications; one against the order dated 26.06.2006 and another against the order dated 11.08.1988. Whereas leave has been granted and notice had been issued on 16.04.2007 in the order 26.06.2006, the same has been declined in respect of the order dated 11.08.1988. 29. Contention of the learned counsel is that the order dated 11.08.1988 has even been given the stamp of finality by this Court. We are unable to accept the said contention. Apart from the fact that the petition for leave against the order dated 11.08.1988 was dismissed on the ground of delay alone, the appellant herein is affected by the impugned judgment of the High Court dated 26.06.2006. When the order dated 11.08.1988 was passed, the judgment of the Bombay High Court was prevailing. Appellant was not in picture at that point of time. A question, furthermore, arises as to whether in a disposed of writ petition, a separate application was maintainable although cause of action therefor arose subsequently. It is urged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry subserves the greater public interest and has a far reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so. We could have dismissed this application on the simple ground that the appellant has no locus standi. We did not do so because as a constitutional court we felt it to be our duty to lay down the law correctly so that similar mistakes are not committed in future. Apart from the general power of the superior courts vested in it under Article 226 or Article 32 of the Constitution of India, this Court is bestowed with a greater responsibility by the makers of the Constitution in terms of Articles 141 and 142 of the Constitution. Decisions are galore wherein this Court unhesitatingly exercised such jurisdiction to resort to the creative interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory. 34. In Union of India v. Dattatray S/o Namdeo Mendhekar and Others [(2008) 4 SCC 612], this Court held: 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 degr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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