KAVITA SOLUNKEversusSTATE OF MAHARASHTRA AND ORS.

                   (2012] 7 S.C.R. 251


                    KAVITA SOLUNKE                            A
                             v.
         STATE OF MAHARASHTRA AND ORS.
            (Civil Appeal No. 5821 of 2012)
                     AUGUST 9, 2012
                                                              B
   [T.S. THAKUR AND FAKKIR MOHAMED IBRAHIM
                 KALIFULLA, JJ.]

     Service Law - Appointment in Scheduled Tribe category
- Protection of continuance in service - Entitlement to - C
Appqintment of appellant in an aided school in Maharashtra
against a reserved post of teacher meant for Scheduled Tribe
candidates - Appellant had claimed to be a member of the
'Halba' Scheduled Tribe - 10 years later, caste credentials of
appellant verified by the Scheduled Tribe Certificate Scrutiny D
Committee - School record of appellant revealed that
appellant's father .was a 'Koshti' which caste was not
recognised as a Scheduled Tribe in Maharashtra - Scrutiny
Committee declared that appellant was a 'Koshti' and not a
'Halba' - Consequent termination of appellant from service by E
school authority - Challenge to - Appellant contended that her
appointment having attained finality, it could not have been
set aside and that even when she was found to be a 'Koshti'
and not a 'Halba' by the Scrutiny Committee, she was entitled
to protection of continuance in service - Reliance placed by F
appellant upon the Constitution Bench decision of Supreme
Court in Milind's case - Held: The Supreme Court had in
Mi/ind's case noticed the fact that appointments and
admissions were made for a long time treating 'Koshti' as a
Scheduled Tribe and directed that such admissions and G
appointments wherever the same had attained finality will not
be affected - 'Halba-Koshti' was treated as 'Halba' even before
the appellant joined service as a teacher - Also, appellant had
not fabricated or falsified the particulars of being a Scheduled
                            251                               H
    252     SUPREME COURT REPORTS             [2012] 7 S.C.R.

A Tribe with a view to obtain undeserved benefit in the matter
  of appointment as a teacher - No reason why benefit of
  protection against ouster from service should not be extended
  to appellant subject to the usual condition that she shall be
  reinstated if already ousted - However, for the period the
B appellant had not served the institution (aided school) she
  shall not be entitled to claim any salary/back wages -
  Constitution (Scheduled Tribes) Order, 1950 - Constitution of
  India, 1950 - Articles 341 and 342.

      Claiming to be a member of the 'Halba' Scheduled
C Tribe, the appellant applied to an aided school in
  Dongaon, Maharashtra against a reserved post of teacher
  meant for Scheduled Tribe candidates. She was
  appointed on the said post and confirmed in service in
  due course. A decade after her initial appointment, the
D caste credentials of appellant were verified by the
  Scheduled Tribe Certificate Scrutiny Committee. In
  course of inquiry, the school record of the appellant was
  looked into which showed that the appellant's father was
  a 'Koshti' by caste which caste was not recognised as a
E Scheduled Tribe in Maharashtra. The Committee declared
  that the appellant was a 'Koshti' and not a 'Halba' and
  accordingly cancelled her Caste Certificate. This led to
  the school passing an order whereby the services of the
  appellant were terminated with immediate effect.
F Aggrieved, the appellant filed appeal before the School
  Tribunal which was dismissed. The appellant then
  preferred a writ petition which was dismissed by the High
  Court.

G     In the instant appeal, the appellant contended that
  her appointment having attained finality, it could not have
  been set aside and that even when she was found to be
  a 'Koshti' and not a 'Halba' by the Scrutiny Committee,
  she was entitled to protection of continuance in service.
  In this regard, she relied upon the decision of the
H Constitution Bench of this Court in Milind's case.
  KAVITA SOLUNKE v. STATE OF MAHARASHTRA               253
                 AND ORS.
    Allowing the appeal, the Court                            A

     HELD: 1.1. In Milind's case, the Constitution Bench
of this Court was examining whether Koshti was a sub-
tribe within the meaning of Halba/Halbi as appearing in
the Constitution (Scheduled Tribes) Order, 1950. This         8
Court held that the Courts cannot and should not expand
their jurisdiction while dealing with the question as to
whether a particular caste or sub-caste, tribe or sub-tribe
is included in any one of the Entries mentioned in the
Presidential Orders issued under Articles 341 and 342.        C
This Court declared that the holding of an inquiry or
production of any evidence to decide or declare whether
any tribe or tribal community or part thereof or a group
or part of a group is included in the general name, even
though it is not specifically found in the entry concerned
would not be permissible and that the Presidential Order      D
must be read as it is. Having said so, this Court noticed
the stand taken by the Government on the issue of 'Halba-
Koshti' from time to time and the circulars, resolutions,
instructions but held that even though the said circulars,
instructions had shown varying stands taken by the            E
Government from time to time relating to 'Halba-Koshti'
yet the power of judicial review exercised by the High
Court did not extend to interfering with the conclusions
of the competent authorities drawn on the basis of
proper and admissible evidence before it. The position        F
emerging from the circulars, resolutions and orders
issued by the competent authority from time to time
notwithstanding, this Court on an abstract principle of
law held that an inquiry into the question whether 'Halba-
Koshti' were Halbas within the meaning of the                 G
Presidential order was not legally permissible. [Paras 6,
8, 9 and 11] [259-H; 260-A-F, G-H; 261-A-C; 264-E-F]

    1.2. The Constitution Bench had in Milind's case
noticed the background in which the confusion had
                                                              H
   254      SUPREME COURT REPORTS             [2012] 7 S.C.R.


A prevailed for many years and the fact that appointments
  and admissions were made for a long time treating
  'Koshti' as a Scheduled Tribe and directed that such
  admissions and appointments wherever the same had
  attained finality will not be affected by the decision taken
B by this Court. After the pronouncement of judgment in
  Milind's case, a batch of cases was directed to be listed
  for hearing before a Division Bench of this Court. The
  Division Bench eventually decided those cases in Om
  Raj's case granting benefit of protection against ouster
c to some of the respondents on the authority of the view
  taken by this Court in Milind's case. One of these cases
  related to the appointment of a 'Koshti' as an Assistant
  Engineer against a vacancy reserved for a 'Halba/
  Scheduled Tribe candidate. This court extended the
0 benefit of protection against ouster to the said candidate.
  If 'Halba-Koshti' has been treated as 'Halba' even before
  the appellant joined service as a Teacher and if the only
  reason for her ouster is the law declared by this Court in
  Milind's case, there is no reason why the protection
E against ouster given by this Court to appointees whose
  applications had become final should not be extended to
  the appellant also. [Para 13] [265-F-H]

       1.3. There is no reason to hold that the appellant had
  fabricated or falsified the particulars of being a Scheduled
F Tribe only with a view to obtain an undeserved benefit in
  the matter of appointment as a Teacher. There is,
  therefore, no reason why the benefit of protection against
  ouster should not be extended to her subject to the usual
  condition that the appellant shall not be ousted from
G service and shall be reinstated if already ousted, but she
  would not be entitled to any further benefit on the basis
  of the certificate which she has obtained and which was
  10 years after its issue cancelled by the Scrutiny
  committee. In the result, the order passed by the High
H Court is set aside and it is directed that the appellant be
  KAVITA SOLUNKE v. STATE OF MAHARASHTRA                255
                 AND ORS.
reinstated in service subject to the condition mentioned       A
above. It is further directed that for the period the
appellant has not served the institution which happens
to be an aided school shall not be entitled to claim any
salary/back wages. She will, however, be entitled to
continu'4y of service for all other intents and purposes.      B
[Paras 16, 17][268-F-H; 269-A-B]
    Addnl. General Manager/Human Resource BHEL v.
Suresh Ramkrishna Burde (2007) 5 SCC 336: 2007 (6) SCR
388 - distinguished.
                                                               c
     State of Maharashtra v. Mi/ind (2001) 1 SCC 4: 2000 (5)
Suppl. SCR 65; State of Maharashtra v. Om Raj (2007) 14
SCC 488; State of Maharashtra v. Sanjay K. Nimje (2007)
14 SCC 481: 2007 (1) SCR 960 and Punjab National Bank
v. Vilas (2008) 14 SCC 545 - referred to.
                                                               D
    R. Vishwanatha Pillai v. State of Kera/a (2004) 2 SCC
105: 2004 (1) SCR 360; Bank of India v. Avinash D.
Mandivikar (2005) 7 SCC 690: 2005 (3) Suppl. SCR 170 and
Union of India v. Dattatray (2008) 4 SCC 612: 2008 (2) SCR
1096 - cited.                                                  E
                    Case Law Reference:
    2000 (5) Suppl. SCR 65     referred to        Para 4
    2004 (1) SCR 360           cited              Para 5
    2007 (1) SCR 960           referred to        Para 5
                                                               F

    2005 (3) Suppl. SCR 170 cited                 Para 5
    2008 (2) SCR 1096          cited              Para 5
    (2001) 14 sec 488          referred to        Para 13
                                                               G
    (2008) 14 sec 545          referred to        Para 14
    2007 (6) SCR 388           distinguished      Para 15
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5821 of 2012.                                                  H
    256       SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A       From the Judgment & Order dated 28.4.2008 of the High
    Court of Bombay at Nagpur in W.P. No. 1810 of 2008.
        Gagan Sanghi, Rameshwar Prasad Goyal for the
    Appellant.

B      A.K. Sanghi, Madhvi Diwan, Sanjay Kharde, Asha
    Gopalan Nair, Shivaji M. Jadhav, Anish R. Shah, S.K. Jain, Prity
    Kunwar, Sarvpreet Singh for the Respondents.
          The Judgment of the Court was delivered by
          T.S. THAKUR, J. 1. Leave granted.
c
         2. The High Court of Judicature at Bombay has while
    dismissing Writ Petition No.1810 of 2008 filed by the appellant
    herein refused to interfere with the order dated 20th February,
    2008 passed by the Scheduled Tribe Certificate Scrutiny
0   Committee, Amravati. The Committee in turn had declared that
    the appellant was a 'Koshti' by Caste and not a 'Halba' which
    is a notified Scheduled Tribe. The facts giving rise to the
    present appeal lie in a narrow compass and may be
    summarised as under:
E        Shri Shivaji High School, Dongaon, of which respondent
  No.5 happens to be the Head Master, invited applications in
  terms of advertisement dated 20th July, 1995 against three
  vacant posts of teachers in the said school. One each of these
  two posts was reserved for Scheduled Caste and Scheduled
F Tribe Candidates. The third post was ostensibly in open
  category and required a minimum qualification of B.P.Ed.,
  which the appellant herein did not possess. The appellant
  claiming to be a 'Halba' applied for the solitary post reserved
  for the Scheduled Tribe candidates and was appointed as a
G low grade co-teacher in the pay scale of Rs.1200-2040 with
  effect from 1st August, 1995 or the date she joined the said
  post. The appointment was on probation for an initial period of
  two years which was duly approved by the Zila Parishad
  Education Officer in terms of his order dated 12th July, 1996.
H It is not in dispute that the appellant satisfactorily completed the
  KAVITA SOLUNKE v. STATE OF MAHARASHTRA                        257
           AND ORS. [TS. THAKUR, J.]
period of probation and was confirmed in service as an                  A
Assistant Teacher in due course.

       A decade after her initial appointment, respondent No.5
asked the appellant to get her caste credentials verified from
the Scheduled Tribe Certificate Scrutiny Committee. The
                                                                        8
appellant complied with the said direction and submitted her
certificate to the Committee concerned, which in turn forwarded
it for a proper vigilance inquiry. In the course of the said inquiry,
the school record of the appellant was also looked into which
showed that the appellant's father was a 'Koshti' by caste which
caste was not a Scheduled Tribe in Maharashtra.                         C

    The Committee, therefore, concluded that the Caste
Certificate of the appellant was invalid and accordingly
cancelled the same. This led to the school passing an Order
dated 23rd February, 2008 whereby the services of the                   D
appellant were terminated with immediate effect. The
termination Order said:

     " ........ You were appointed on the post reserved for
     candidate of Scheduled Tribes. At the time of appointment          E
     you produced certificate showing that you belong to the
     category of Scheduled Tribes. There after the said
     Certificate was sent for verification to the Caste Scrutiny
     Committee. The said Committee after giving opportunity
     of hearing and adducing of evidence decided the enquiry
     and came to the conclusion that you do not belong to the           F
     category as mentioned in the certificate produced by you
     and consequently invalidated the caste certificate produced
     by you are not entitled to continue on the post as the post
     is reserved for the candidate of Scheduled Tribes
     Community."                                                        G

     Aggrieved by the above, the appellant filed an appeal
before the School Tribunal under Section 9 of the Maharashtra
Employees of Private School (Condition of Service) Regulation
Act, 1977 which failed and was dismissed by the Tribunal by             H
    258        SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A its order dated 25th September, 2008. The appellant then
  preferred a writ petition before the High Court of Nagpur
  challenging the order passed by the Scheduled Tribe Certificate
  Scrutiny Committee invalidating her caste claim. The High Court
  saw no reason to interfere and dismissed the said petition by
B the order impugned before us. The High Court observed:

          "... neither the petitioner personally nor through h.er agent
          appeared before the Caste Scrutiny Committee nor
          submitted any reply to the Vigilance Cell Inquiry Report.
          Perusal of the order of Caste Scrutiny Committee further
c         reveals that the Vigilance Cell collected the document
          dated 18.10.1956 i.e., extract of School entry in respect
          of father of the petitioner, wherein caste of father of the
          petitioner mentioned as "Koshti". Similarly, the another
          document collected by the Vigilance Cell further shows that
D         the petitioner does not belong to "Halba" Scheduled Tribe.
          Petitioner also failed to establish affinity with the "Halba"
          Scheduled Tribe. In the circumstances, the conclusion
          arrived at by the Caste Scrutiny Committee is just and
          proper and needs no interference."
E
        3. The present appeal assails the correctness of the above
    order as already noticed.

       4. Learned counsel appearing for the appellant raised a
  short point before us. He contended that the appointment of the
F appellant having attained finality, could not have been set aside
  on the ground that Koshti- Halbas were not 'Halbas' entitled to
  the benefit of reservation as Scheduled Tribes. Relying upon
  the decision of the Constitution Bench of this Court in State of
  Maharashtra v. Mi/ind (2001) 1 SCC 4, it was urged by the
G learned counsel that the appellant was entitled to the protection
  of continuance in service, no matter 'Halba-Koshtis' were not
  recognised as 'Halbas' by this Court. The High Court had not,
  according to the learned counsel, correctly appreciated the
  decision of this Court in Milind's case (supra) and thereby fallen
H in an error in dismissing the writ petition filed by the appellant.
  KAVITA SOLUNKE v. STATE OF MAHARASHTRA                     259
           AND ORS. [T.S. THAKUR, J.]
He also placed reliance upon the Office Memorandum issued           A
by the Government of India, Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel & Training
dated 1Oth August, 2010 whereby protection against ouster of
those appointed in the Scheduled Tribe category had been
extended to persons appointed on the basis of their beirig          B
'Halba-Koshti' in the State of Maharashtra. It was further urged
that relying upon the said subsequent development, this Court
had allowed one Raju Gadekar, a candidate similarly placed
as the appellant to seek the benefit under the circular by moving
a suitable application before the High Court. There was             c
according to the learned counsel no reason to take a different
view in the case of the appellant, especially when this Court had
in Milind's case (supra) followed in subsequent decisions,
extended protection against ouster from service to those
appointed in the Scheduled Tribe category on the basis.of the       D
certificates showing the persons appointed to be a 'Koshti-
Halba' by caste.

      5. On behalf of the respondent, it was urged that the
decision of this Court in Milind's case (supra) was
distinguishable from the facts of the case at hand inasmuch as      E
that case dealt with admission to a professional course and not
with appointment to any public office. It was further argued that
the decision of this Court in Milind's case (supra) had been
explained by this Court in subsequent decisions including R.
Vishwanatha Pillai v. State of Kera/a (2004) 2 SCC 105; State       F
of Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481; Bank
of India v. Avinash D. Mandivikar (2005) 7 SCC 690 and
Union of India v. Dattatray (2008) 4 SCC 612 and the benefit
limited only to cases arising out of admission to professional
courses where the candidate had already completed the course        G
and their ouster would result in no benefit to anyone.

    6. In Milind's case (supra), the Constitution Bench of this
Court was examining whether Koshti was a sub-tribe within the
meaning of Halba/Halbi as appearing in the Constitution
                                                                    H
    260      SUPREME COURT REPORTS                [2012] 7 S.C.R.


A (Scheduled Tribes) Order, 1950. The respondent in that case
  had obtained a Caste Certificate from the Executiye Magistrate
  to the effect that he belonged to 'Halba' Scheduled Tribe. He
  was on that basis selected for appointment;to the MBBS
  Degree Course in the Government Medical College for the
B session 1985-86 against a seat reserved for Scheduled Tribe
  candidates. The certificate relied upon by the respondent-Milind
  was sent to the Scrutiny Committee, the Committee recorded
  a finding after inquiry to the effect that the respondent did not
  belong to Scheduled Tribe. In an appeal against the said Order,
C the Appellate Authority concurred with the view taken by the
  Committee and declared that the respondent-Milindj>elonged
  to 'Koshti Caste' and not to 'Halba Caste' Schedule Tribe.

       7. In a writ petition filed against the said order by Milind,
  the High Court held that it was permissible to examine whether
D any sub-division of a tribe was a part and parcel of the tribe
  mentioned therein and whether 'Halba-Koshti' was a sub-
  division of the main tribe 'Halba' within the meaning of Entry
  19 in the Constitution (Scheduled Tribes) Order, 1950. The High
  Court further held that Halba-Koshti was indeed a sub-tribe of
E Halba appearing in the Presidential Order.

       8. In an appeal filed against the above order of the High
  Court, this Court held that the Courts cannot and should not
  expand their jurisdiction while dealing with the question as to
F whether a particular caste or sub- caste, tribe or sub-tribe is
  included in any one of the Entries mentioned in the Presidential
  Orders issued under Articles 341 and 342. Allowing the State
  Government or the Courts or other authorities or tribunals to hold
  an inquiry as to whether a particular caste or tribe should be
  considered as one included in the Schedule to the Presidential
G order, when it is not so specifically included would lead to
  problems. This Court declared that the holding of an inquiry or
  production of any evidence to decide or declare whether any
  tribe or tribal community or part thereof or a group or part of a
  group is included in the general name, even though it is not
H
  KAVITA SOLUNKE v. STATE OF MAHARASHTRA                     261
          AND ORS. [T.S. THAKUR, J.]

specifically found in the entry concerned would not be              A
permissible and that the Presidential Order must be read as it
is.

     9. Having said so, this Court noticed the stand taken by
the Government on the issue of 'Halba-Koshti' from time to time
                                                                    B
and the circulars, resolutions, instructions but held that even
though the said circulars, instructions had shown varying stands
taken by the Government from time to time relating to 'Halba-
Koshti' yet the power of judicial review exercised by the High
Court did not extend to interfering with the conclusions of the
competent authorities drawn on the basis of proper and              C
admissible evidence before it. This Court observed:

    " ....... The jurisdiction of the High Court would be much
    more restricted while dealing with the question whether a
    particular caste or tribe would come within the purview of      D
    the notified Presidential Order, considering the language
    of Articles 341 and 342 of the Constitution. These being
    the parameters and in the case in hand, the Committee
    conducting the inquiry as well as the Appellate Authority,
    having examined all relevant materials and having               E
    recorded a finding that Respondent 1 belonged to "Koshti"
    caste and has no identity with "Halba/Halbi" which is the
    Scheduled Tribe under Entry 19 of the Presidential Order,
    relating to the State of Maharashtra, the High Court
    exceeded its supervisory jurisdiction by making a roving        F
    and in-depth examination of the materials afresh and in
    coming to the conclusion that "Koshtis" could be treated
    as "Halbas". In this view the High Court could not upset the
    finding of fact in exercise of its writ jurisdiction."

     10. What is important is that this Court noticed the           G
prevailing confusion arising out of different circulars and
instructions on the question of 'Halba-Koshti' being Scheduled
Tribes. Dealing with the observations made by the High Court
and referring to circulars, instructions and resolution issued by
the Government from time to time, this court observed:              H
    262        SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A         "33. The High court in paras 20 to 23 dealt with circulars/
          resolutions/ instructions/orders made by the Government
          from time to time on the issue of "Halba-Koshtis". It is
          stated in the said judgment that up fo 20-7-1962 "Halba-
          Koshtis" were treated as "Halbas" in the specified areas
B         of Vidarbha. The Government of Maharashtra, Education
          and Social Welfare Department issued Circular No. CBC
          1462/3073/M to the effect that "Halba-Koshtis" were not
          Scheduled Tribes and they are different from "Halba/
          Halbis". In the said circular it is also stated that certain
          persons not belonging to "Halba" Tribe have been taking
c         undue advantage and that the authorities competent to
          issue caste certificates should take particular care to see
          that no person belonging to "Halba-Koshtis" or "Koshti"
          community is given a certificate declaring him as a
          member of Scheduled Tribes. On 22-8- 1967 the
D
          abovementioned circular of 20-7-1962 was withdrawn.
          Strangely, on 27-9-1967, another Circular No. CBC-1466/
          9183/M was issued showing the intention to treat "Halba-
          Koshti" as "Halba". On 30-5-1968 by Letter No. CBC-
          1468-2027-0, the State Government informed the Deputy
E         Secretary to the Lok Sabha that "Halba-Koshti" is "Halba/
          Halbi" and it should be specifically included in the proposed
          amendment Act. The Government of Maharashtra on 29-
          7-1968 by Letter No. EBC-1060/49321-J-76325 informed
          the Commissioner for Scheduled Castes and Scheduled
F         Tribes that "Halba-Koshti" community has been shown
          included in the list of Scheduled Tribes in the State and
          the students belonging to that community were eligible for
          the Government of India Post-Matric Scholarships. On 1-
          1-1969 the Director of Social Welfare, Tribal Research
G         Institute, Pune, by his Letter No. TRl/l/H.K./68-69 stated that
          the State Government could not in law amend the
          Scheduled Tribes Order and that a tribe not specifically
          included, could not be treated as Scheduled Tribe. In this
          view the Director sought for clarification. The Government
H         of India on 21-4-1969 wrote to the State Government that
KAVITA SOLUNKE v. STATE OF MAHARASHTRA                     263
         AND ORS. [T.S. THAKUR, J.]
  in view of Basavalingappa case "Halba-Koshti" community         A
  could be treated as Scheduled Tribe only if it is added to
  the list as a sub-tribe in the Scheduled Tribes Order and
  not otherwise. Thereafter, few more circulars were issued
  by the State Government between 24-10-1969 and 6-11-
  1974 to recognise "Halba-Koshtis" as "Halbas" and               8
  indicated as to who were the authorities competent to
  issue certificates and the guidelines were given for inquiry.
  There was again departure in the policy of the State
  Government by writing a confidential Letter No. CBC-1076/
  1314/Desk-V dated 18-1-1977. The Government informed            C
 the District Magistrate, Nagpur, that "Halba- Koshtis"
  should not be issued "Halba" caste certificate. Thereafter,
  few more circulars, referred to in para 22 of the judgment,
 were issued. It may not be necessary to refer to those
  again except to the circular dated 31-7-1981 bearing No.        D
 CBC- 1481/(703)/D.V. by which the Government directed
 that until further orders insofar as "Halbas" are concerned,
 the School Leaving Certificate should be accepted as valid
 for the purpose of the caste. Vide resolution dated 23-1-
  1985 a new Scrutiny Committee was appointed for
 verification of caste certificates of the Scheduled Tribes.      E
 The High Court had observed in para 23 of the judgment
 that several circulars issued earlier were withdrawn but the
 said circular dated 31-7-1981 was not withdrawn. For the
 first time on 8- 3-1985 the Scrutiny Committee was
 authorised to hold inquiry if there was any reason to believe    F
 that the certificate was manipulated or fabricated or had
 been obtained by producing insufficient evidence.
 Referring to these circulars/resolutions the High Court took
 the view that the caste certificate issued to Respondent 1
 could be considered as valid and up to 8-3-1985 the              G
 inquiry was governed by circular dated 31-7-1981. The
 High Court dealing with the stand of the State Government
 on the issue of "Halba-Koshti", from time to time, and also
 referring to circulars/resolutions/instructions held in favour
 of Respondent 1 on the ground that the appellant was             H
    264       SUPREME COURT REPORTS                [2012] 7 S.C.R.


A         bound by its own circulars/orders. No doubt, it is true, the
          stand of the appellant as to the controversy relating to
          "Halba-Koshti" has been varying from time to time but in
          the view we have taken on Question 1, the circulars/
          resolutions/instructions issued by the State Government
8         from time to time, some times contrary to the instructions
          issued by the Central Government, are of no consequence.
          They could be simply ignored as the State Government had
          neither the authority nor the competency to amend or alter
          the Scheduled Tribes Order.

C                But we make it clear that he cannot cylaim 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
D         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
          and appointments that have become final, shall remain
          unaffected by this judgment."
E
       11. A careful reading of the above would show that both
  the High Court as also this Court were conscious of the
  developments that had taken place on the subject whether
  'Halba-Koshti' are 'Halbas' within the meaning of the
F Presidential Order. The position emerging from the said
  circulars, resolutions and orders issued by the competent
  authority from time to time notwithstanding, this Court on an
  abstract principle of law held that an inquiry into the question
  whether 'Halba-Koshti' were Halbas within the meaning of the
  Presidential order was not legally permissible.
G
       12. The appellant before us relies upon the above
  passage extracted above to argue that her appointment had
  attained finality long before the judgment of this Court was
  delivered in Milind's case and even when she was found to be
H
   KAVITA SOLUNKE v. STATE OF MAHARASHTRA                  265
            AND ORS. [T.S. THAKUR, J.]
a 'Koshti' and not a 'Halba' by the Verification Committee, she    A
was entitled to protection against ouster.

     13. We find merit in that contention. If 'Halba-Koshti' has
been treated as 'Halba' even before the appellant joined
service as a Teacher and if the only reason for her ouster is      8
the law declared by this Court in Milind's case, there is no
reason why the protection against ouster given by this Court to
appointees whose applications had become final should not be
extended to the appellant also. The Constitution Bench had in
Milind's case noticed the background in which the confusion        C
had prevailed for many years and the fact that appointments
and admissions were made for a long time treating 'Koshti' as
a Scheduled Tribe and directed that such admissions and
appointments wherever the same had attained finality will not
be affected by the decision taken by this Court. After the
pronouncement of judgment in Milind's case, a batch of cases       D
was directed to be listed for hearing before a Division Bench
of this Court. The Division Bench eventually decided those
cases by an order dated 12th December 2000 (State of
Maharashtra v. Om Raj (2007) 14 SCC 488) granting benefit
of protection against ouster to some of the respondents on the     E
authority of the view taken by this Court in Milind's case. One
of these cases, namely, Civil Appeal No.7375 of 2002 arising
out of SLP No.6524 of 1988 related to the appointment of a
'Koshti' as an Assistant Engineer against a vacancy reserved
for a 'Halba/Scheduled Tribe candidate. This court extended        F
the benefit of protection against ouster to the said candidate
also by a short order passed in the following words:

          "4. Leave granted.

           5. The appellant having belonged to Koshti caste        G
    claimed to be included in the Scheduled Tribe of Halba and
    obtained an appointment as Assistant Engineer. When his
    appointment was sought to be terminated on the basis that
    he did not belong to Scheduled Tribe by the Government
    a writ petition was filed before the High Court challenging    H
    266        SUPREME COURT REPORTS               [2012] 7 S.C.R.

A         that order which was allowed. That order is questioned in
          this appeal. The questions arising in this case are covered
          by the decision in State of aharashtra v. Milind 1and were
          got to be allowed, however, the benefits derived till now
          shall be available to the appellant to the effect that his
B         appointment as Assistant Engineer shall stand protected
          but no further. The appeal is disposed of accordingly."

       14. Reference may also be made to Punjab National
  Bank v. Vilas (2008) 14 sec 545. That too was a case of
C appointment based on a certificate which was later cancelled
  on the ground that 'Halba Koshti' was not the same as 'Halba'
  Scheduled Tribe. The High Court had set aside the termination
  of the service of the affected candidates relying upon a
  Government resolution dated 15th June 1995 as applicable to
  Punjab National Bank. While upholding the said order, H.K.
D Serna, J. held the candidate to be protected against ouster on
  the basis of the resolution. V.S. Sirpurkar, J., however, took a
  slightly different view and held that the appointment made by
  the Bank having become final the same was protected against
  ouster in terms of the decision of the Constitution Bench in
E Milind's case (supra). The question whether the Government
  resolution protected the candidates against ouster from service
  was for that reason left open by His Lordship. Reliance in
  support of that view was placed upon the decision of this Court
  in Civil Appeal No. 7375 of 2000 (wrongly mentioned in the
F report as Civil appeal No. 3375 of 2000) mentioned above. The
  Court observed:

          "The situation is no different in case of the present
          respondent. He also came to be appointed and/or
          promoted way back in the year 1989 on the basis of his
G
          caste certificate which declared him to be Scheduled
          Tribe. Ultimately, it was found that since a "Koshti" does
          not get the status of a Scheduled Tribe, the Caste Scrutiny
          Committee invalidated the said certificate holding that the
          respondent was a Koshti and not a Halba. I must hasten
H
  KAVITA SOLUNKE v. STATE OF MAHARASHTRA                     267
           AND ORS. [T.S. THAKUR, J.]
    to add that there is no finding in the order of the Caste        A
    Scrutiny Committee that the petitioner lacked in bona fides
    in getting the certificate. I say this to overcome the
    observations in para 21 in Sanjay K. Nimje case. But it is
    not a case where the respondent pleaded and proved bona
    fides. Under such circumstances the High Court was fully         8
    justified in relying on the observations made in Milind case.
    The High Court has not referred to the judgment and order
    in Civil Appeal No. 3375 of 2000 decided on 12-12-2000
    to which a reference has been made above. However, it
    is clear that the High Court was right in holding that the       C
    observations in Milind case apply to the case of the
    present respondent and he stands protected thereby".

     15. Our attention was drawn by counsel for the
respondents to the decision of this Court in Addnl. General
Manager/Human Resource BHEL v. Suresh Ramkrishna                     D
Burde (2007) 5 SCC 336 in which the protection against ouster
granted by the decision in Milind's case was not extended to
the respondent therein. A bare reading of the said decision,
however, shows that there is a significant difference in the
factual matrix in which the said case arose for consideration.       E
In Burde's case, the Scrutiny Committee had found that the
caste certificate was false and, therefore, invalid. That was not
the position either in Milind's case nor is that the position in
the case at hand. In Milind's case, the Scrutiny Committee had
never alleged any fraud or any fabrication or any                    F
misrepresentation that could possibly disentitle the candidate
to get relief from the Court. In the case at hand also there is no
such accusation against the appellant that the certificate was
false, fabricated or manipulated by concealment or otherwise.
Refusal of a benefit flowing from the decision of this Court in      G
Milind's case may, therefore, have been justified in Burde's
case but may not be justified in the case at hand where the
appellant has not been accused of any act or omission or
commission of the act like the one mentioned above to
disentitle her to the relief prayed for. The reliance upon Burde's   H
    268        SUPREME COURT REPORTS                 [2012] 7 S.C.R.

A case (supra), therefore, if of no assistance to the respondent.

       The decision of this Court in State of Maharashtra v.
  Sanjay K. Nimje (2007) 14 SCC 481 relied upon by learned
  counsel for the respondents was distinguished even by V.S.
  Sirpurkar, J. in Vi/as's case. The distinction is primarily in terms
8 whether the candidate seeking appointment or admission is
  found guilty of a conduct that would disentitle him/her from
  claiming any relief under the extraordinary powers of the Court.
  This Court found that if a person secures appointment or
  admission on the basis of false certificate he cannot retain the
C said benefit obtained by him/her. The Courts will refuse to
  exercise their discretionary jurisdiction depending upon the
  facts and circumstances of each case. The following passage
  from decision in the Nimje's case is apposite:

D         "In a situation of this nature, whether the Court will refuse
          to exercise its discretionary jurisdiction under Article 136
          of the Constitution of India or not would depend upon the
          facts and circumstances of each case. This aspect of the
          matter has been considered recently by this Court in
E         Sandeep Subhash Parate v. State of Maharashtra (2006)
          7 sec so1."

        16. Applying the above to the case at hand we do not see
  any reason to hold that the appellant had fabricated or falsified
  the particulars of being a Scheduled Tribe only with a view to
F obtain an undeserved benefit in the matter of appointment as
  a Teacher. There is, therefore, no reason why the benefit of
  protection against ouster should not be extended to her subject
  to the usual condition that the appellant shall not be ousted from
  service and shall be re-instated if already ousted, but she would
G not be entitled to any further benefit on the basis of the certificate
  which she has obtained and which was 10 years after its issue
  cancelled by the Scrutiny committee.

      17. In the result, we allow this appeal, set aside the order
H passed by the High Court and direct the reinstatement of the
   KAVITA SOLUNKE v. STATE OF MAHARASHTRA                      269
            AND ORS. [T.S. THAKUR, J.]

appellant in service subject to the condition mentioned above.        A
We further direct that for the period the appellant has not
served the institution which happens to be an aided school shall
not be entitled to claim any salary/back wages. She will,
however, be entitled to continuity of service for all other intents
and purposes. The respondent shall do the needful within a            8
month from the date of this order. The parties are left to bear
their own costs.

8.8.8.                                           Appeal allowed.