SHALINIversusNEW ENGLISH HIGH SCH. ASSN. & ORS.

                       [2013) 12 S.C.R. 807


                              SHALINI                                A
                                 V.
           NEW ENGLISH HIGH SCH. ASSN. & ORS.
              (Civil Appeal No. 10997 of 2013)

                      DECEMBER 12, 2013.
                                                                     B
          [T.S. THAKUR AND VIKRAMAJIT SEN, JJ.]

       Social Status Certificate:

       Caste certificate - Appointment made on the basis of          c
  caste certificate, which subsequently found invalid - Cessation
  of employment or employee entitled to protection and its
  extent - Principles emerging from various judgments of
  Supreme Court - Culled out.

        Scheduled Tribe - "Halba" - "Gadwal Kosh ti" - Appellant     D
  appointed on a post earmarked for Scheduled Tribe on the
  basis of caste certificate issued by competent authority -
  Caste certificate - Subsequently found invalid by Caste
  Scrutiny Committee - Held: A person who has honestly, in
- contradistinction with falsely, claimed consanguinity with a       E
  certain group which was later on found not to belong to an
  envisaged Scheduled Tribe but to a special backward class,
  should not be visited with termination of his/her employment
  and rigours of s. 10 of 2000 Act would not apply to his/her case
  - It is, therefore, directed that the appellant be reinstated in   F
  service without any back wages - As regards her appointment
  as Headmistress of the School, further directions given -
  Maharashtra Scheduled Castes, Scheduled Tribes, De-
  notified Tribes, (Vimukta Jatis) Nomadic Tribes, Other
  Backward Classes and Special Backward Category                     G
  (Regulation of Issuance and Verification of) Caste Certificate
  Act, 2000 - ss.2(a) and 10 - Government of Maharashtra
  Resolution dated 15.6.1995 - Office Memorandum dated
  10.8.2010 of Government of India, Ministry of Personnel,
                                807                                  H
    808        SUPREME COURT REPORTS                       [2013] 12 S.C.R.


A Public Grievances and Pensions, Department of Personnel
  & Training.

          Precedent:

       Three-Jude Bench - Not overruling two-Judge Bench
B decisions - Precedent value of such judgments and rule of
  per incuriam - Discussed.

       The appellant was appointed as an Assistant Teacher
  on 6.11.1981, against a vacancy earmarked for Schedule
c Tribe candidate, on the basis of a caste certificate dated
  8.7.1974 issued by the competent authority testifying her
  to belong to "Halba Scheduled Tribe Category". On
  28.4.1994 she was promoted as Head Mistress subject to
  production of Caste Validity Certificate. The Caste
0 Scrutiny Committee, by order dated 20.8.2003 held the
  caste certificate of the appellant as invalid. Initially, the
  single Judge of the High Court granted her protection in
  service on the basis of Government Resolution dated
  15.6.1995. However, subsequently, in a writ petition, the
  single Judge by order dated 11.11.2009 set aside the -·
E reinstatement order passed by the School Tribunal. The
  Division Bench of the High Court affirmed the order dated
  11.11.2009 holding that Dattatray' prohibited extension of
  any protection to the appellant.

F          Disposing of the appeal, the Court

       HELD: 1.1. The principles laid down in various
  judgments of this Court relevant for deciding the effect
  on the appointment made on the basis of a caste
G certificate are culled out as follows: (a) If any person has
  fraudulently claimed to belong to a Scheduled Caste or
  Scheduled Tribe and has thereby obtained employment,
  he would be disentitled from continuing in employment.

H   1.    Union of India v. Datlatray 2008 (2) SCR 1096.
    SHALINI v. NEW ENGLISH HIGH SCH. ASSN.              809


The rigour of this conclusion has been diluted only in A
instances where the court is confronted with the case of
students who have already completed their studies or are
on the verge of doing so, towards whom sympathy is
understandably extended; (b) It is not the intent of law to
 punish an innocent person and subject him to extremely B
 harsh treatment. Where there is some confusion
 concerning the eligibility to the benefits flowing from
Scheduled Caste or Scheduled Tribe status, such as
issuance of relevant certificates to persons claiming to
be 'Koshtis' or 'Halba Koshtis' under the broadband of c
 'Halbas', protection of employment will be available with
the rider that these persons will thereafter be adjusted in
the general category thereby rendering them ineligible to
further benefits in the category of Scheduled Caste or
Scheduled Tribe as the case may be; (c) this benefit
                                                               0
accrues from the decision of this Court, inter alia, in Raju .
Ramsing Vasave which was rendered under Art. 142 of
the Constitution of India. Realising the likely confusion
in the minds of even honest persons the Resolutions/
Legislation passed by the State Governments should
                                                               E
spare some succour to this section of persons. This can
be best illustrated by the fact that it was in Mi/ind that the
Constitution Bench clarified that 'Koshtis' or 'Halba-
Koshtis' were not entitled to claim benefits as Scheduled
Tribes and it was the 'Halbas' alone who were so entitled.
A perusal of the judgment in Vilas as well as Solunke F
makes it clear that this protection is available by virtue
of the decisions of this Court; it is not exclusively or
necessarily predicated on any Resolution or Legislation
of the State Legislature; (d) Where a Resolution or
Legislation exists, its raison d'etre is that protection is G
justified in presenti (embargo on removal from service or
from reversion) but not in futuro (embargo on promotions
in the category of Scheduled Caste or Scheduled Tribe).
[para 5 and 6) [816-E-H; 817-A-D]
                                                              H
    810    SUPREME COURT REPORTS             [2013] 12 S.C.R.


A                                                     =
       Maharashtra v. Mi/ind 2000 Suppl. 5 SCR 65 (2001)
  1 SCC 4; Union of India v. Dattatray 2008 (2) SCR 1096     =
  (2008) 4 SCC 612; Raju Ramsing Vasave v. Mahesh
  Deorao Bhivapurkar 2008 (12) SCR 992 = (2008) 9 SCC 54
  Punjab National Bank v. Vilas (2008) 14 SCC 545, Kavita
B Sofunke v. State of Maharashtra 2012 (7) SCR 251           =
  (2012) 8 SCC 430; E. V. Chinnaiah v. State of A.P. 2004
                       =
  Suppl. 5 SCR 972 (2005) 1 SCC 394; R. Vishwanatha
                                              =
  Pillai v. State of Kera/a 2004 (1) SCR 360 (2004) 2 SCC
  105; State of Maharashtra v. Om Raj (2007) 14 SCC 488;
c Bank of India v. Avinash 0. Mandivikar 2005 Suppl.
               =
  3 SCR 170 (2005) 7 SCC 690 and BHEL v. Suresh
                                         =
  Ramkrishna Burde 2007 (6) SCR 388 (2007) 5 SCC 336;
  and State of Maharashtra v. Sanjay K. Nimje 2007
                =
  (1) SCR 960 (2007) 14 SCC 481-referred to.
D      1.2. Dattatray is the only Three-Judge Bench
  decision and, therefore, indisputably holds pre-eminence
  and it was within the competence of Dattatray to overrule
  the other Two-Judge Bench decisions, but it has not
  done so. The per incuriam principle would not apply to
E the decision. The Two-Judge Bench views may still be
  relied upon so long as the ratio of Dattatray is not directly
  in conflict with their ratios. [para 6] [817-G-H]

      1.3. The Resolution dated 15.6.1995 passed by the
F Government of Maharashtra grants status quo as regards
  employment inasmuch as it states that those persons
  who, on the basis of Caste Certificates, already stand
  appointed or promoted in the Government or Semi-
  Government, shall not be demoted or removed from
  service. Thereafter, the Maharashtra Scheduled Castes,
G Scheduled Tribes, De-notified Tribes, (Vimukta Jatis)
  Nomadic Tribes, Other Backward ClalSses and Special
  Backward Category (Regulation of Issuance and
  Verification of) Caste Certificate Act, 2000 was enacted.
  Section 10 of the said Act cancels with pre-emptive effect
H
    SHALINI v. NEW ENGLISH HIGH SCH. ASSN.           811


any benefit that may have been derived by a person A
based on a false caste certificate. Section 10 applies in
the Dattatray mould only. In Nimje, a Two-Judge Bench
held that Government Resolution dated 15.6.1995 would
continue to apply even after the passing of the 2000 Act
so Jong as the appointment had taken place prior to 1995. B
Further, the Office Memorandum dated 10.8.2010 of the
Government of India, Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel &
Training provides that "the persons belonging to the
'Halba Koshti/Koshti' caste who got appointment against c
vacancies reserved for the Scheduled Tribes on the basis
of Scheduled Tribe certificates, issued to them by the
competent authority, under the Constitution (Scheduled
Tribes) Order, 1950 (as amended from time to time)
 relating to the State of Maharashtra and whose
                                                            0
 appointments had become final on or before 28.11.2000,
 shall not be affected. However, they shall not get any
 benefit of reservation after 28.11.2000." [para 7] [818-G-
 H; 819-A-B; 820-H; 821-A-D]

     1.4. It requires specialised bodies such as Caste E
Scrutiny Committees, specialised lawyers, seasoned
bureaucrats etc. to decipher which category a relatively
backward, or ostracized or tribal person falls in.
Therefore, a person who has honestly, in
contradistinction with falsely, claimed consanguinity with F
a certain group which was later on found not to belong
to an envisaged Scheduled Tribe but to a special
backward class should not be visited with termination of
her employment. In the instant case, since there was no
falsity in the claim of .the appellant and, therefore, she G
cannot be viewed as having filed a 'false' Caste
Certificate. The rigours of s. 10 of the 2000 Act would not
apply to her case. A perusal of the Order of the Scheduled
Tribe Caste Certificate Committee shows that the
Committee was satisfied that her claim to the caste of H
    812       SUPREME COURT REPORTS              [2013) 12 S.C.R.


A 'Gadwal Koshti' was correct but that she did not belong
  to 'Halba' Scheduled Tribe. Government Resolution dated
  15.6.1995 specifically declares amongst others 'Godwal
  Koshti" as "special backward class." Therefore, the
  appellant should have been debarred from any further
B advantage that would enure to persons belonging to the
  'Halba' Tribe. [para 8-9] [821-F-H; 822-C-E, H; 823-A-C]

       1.5. Accordingly, it is directed that the appellant be
  reinstated in service but without any back wages. Further
C directions given with regard to her reappointment as
  Head Mistress of the School. [para 10] [823-D]

                          Case Law Reference:
          2008 (2) SCR 1096                 r
                                                 •
D         2000 Suppl. 5 SCR 65              para 1
          2004 Suppl. 5 SCR 972             para 1
          2004 (1) SCR 360                  para 2
          (2007) 14 sec 488                para 3
E
          2008 (14) sec 545                para 3
          2005 Suppl. 3 SCR 170            para 4
          2007 (6) SCR 388                 para 4
F
          2007 (1) SCR 960                 para 4
          2012. (7) SCR 251                para 5
       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
.G 10997 of 2013 .
        From the Judgment and Order dated 25.11.2009 of the
    High Court of Judicature at Bombay, Bench at Nagpur in Letters
    Patent Appeal No. 527 of 2009.

H         Satyajit A. Desai, Anagha S. Desai for the Appellant.
    SHALINI v. NEW ENGLISH HIGH SCH. ASSN.                  813

   Shankar Chillarge, (Asha Gopalan Na.ir), Manish Pitale,          A
Wasi Haider, Chander Shekhar Ashri for the Respondents.

    The Judgment of the Court was delivered by

      VIKRAMAJIT SEN, J. 1. Leave granted. This Appeal
challenges the Order of the Division Bench of the High Court        B
of Judicature at Bombay, Nagpur Bench passed on 25.11.2009
in L.P.A. No.527 of 2009 affirming the Order of the learned
Single Judge who had dismissed the Appellant's Writ Petition
essentially on the opinion of the Three-Judge Bench in Union        C
of India v. Oattatray (2008) 4 SCC 612. The Order impugned
before the learned Single Judge was that of the School Tribunal,
Nagpur which had granted reinstatement of the Appellant with
continuity of service and full back wages. The Appellant had
 been employed as an Assistant Teacher against a vacancy
earmarked for Scheduled Tribe candidate, she having filed a         D
 Caste Certificate dated 8.7.1974 issued by the Competent
 Authority testifying her to belong to the "Halba Scheduled Tribe
 Category". The question before us is indeed a vexed one, as
 are all conundrums arising out of claims for Scheduled Caste
 or Scheduled Tribe status and resultant benefits. The confusion    E
 is made worst confounded because of exclusions or inclusions
 of certain castes or classes of people keeping only electoral
 advantages in mind. Retrospectivity is inherent in subsequent
 enumerations under Articles 341 and 342 since those selection
 are immutable or unalterable; all change therefore, is only        F
 clarificatory in content, because the endeavour of Parliament
 is to make the enumerations more detailed by mentioning sub-
 castes or the synonyms of the selected castes and tribes. The
 inclusion of new castes/tribes was intended by the framers of
 the Constitution to be impermissible, in order "to eliminate any   G
  kind of political factors having a play in the matter of the
 disturbance in the Schedule so published by the Presidenf' as
  per the Constituent Assembly oration of Dr. Ambedkar, which
  stands accepted by the Apex Court at least twice, as in State
                                                                    H
    814     SUPREME COURT REPORTS                [2013] 12 S.C.R.


A of Maharashtra v. Mi/ind (2001) 1 SCC 4 and E. V. Chinnaiah
  v. State of A.P. (2005) 1 SCC 394. We have to decide whether
  the Appellant's employment was justifiably terminated because
  a Caste Scrutiny Committee after a passage of several
  decades, found her disentitled to claim the benefits enuring to
B Halbas.

      2. In R. Vishwanatha Pillai v. State of Kera/a (2004) 2
   SCC 105, this Court found that the caste certificate procured
  by the Appellant was false ab initio. It repelled the argument
C that a fresh notice should have been issued in compliance with
  Article 311 of the Constitution of India as a prelude to the
  impositioh of any punishment postulated by that provision, on
  the premise that the appointment itself was illegal and void,
  thereby disentitling the Appellant from Constitutional protection.
  This Court also rejected the plea that since the Appellant had
0
  put in 27 years of service the order of dismissal should be
  converted to compulsory retirement or removal from service so
  that pensionary benefits could be availed of. The question which
  immediately begs to be cogitated upon is whether these harsh
E consequences should nevertheless ensue and obtain even if
  no fraud, mendacity or manipulation is ascribable to the person
  who has claimed and enjoyed Scheduled Caste advantages.

       3. This slant in the situation arose in State of Maharashtra
  v. Om Raj (2007) 14 sec 488 whereby several appeals came
F to be decided simply on the basis of Mi/ind, the gist of which
  was that protection so far as the benefit then claimed on the
  strength of being Koshtis would be preserved, but the incumbent
  would not be entitled to any further benefit in the future. To
  remove confusion, State of Maharashtra v. Viswanath
G [C.A. No. 7375 of 2000] has also been decided in Om Raj with
  other appeals. In Punjab National Bank v. Vilas (2008) 14
  SCC 545, the employee had provided a Halba Scheduled Tribe
  Certificate and gained employment in 1989 which was
  invalidated by the Scheduled Tribe Scrutiny Committee leading
H to the termination of the Respondent's service by an order

                                                                       ......
    SHALINI v. NEW ENGLISH HIGH SCH. ASSN.                 815
               [VIKRAMAJIT SEN, J.]
dated 4.2.2002. Drawing from the previous decision in Mi/ind       A
this Court reiterated that Scheduled Tribe status had not been
conferred either on Halba Koshti or Koshti but on 'Halba' alone.
This Court, thus, once again protected the employment of the
Respondent but clarified that he would not be entitled to claim
further promotion in the Scheduled Tribe category. It was also     B
declared that the Government Resolution dated 30.6.2004
would apply to all employment with the "government/semi-
govern men t and Boards, Municipalities, Municipal
 Corporations, District Councils, Cooperative Banks,
 government undertakings, etc."                                    c
     4. Almost one year later this very question, which has led
to a deluge of litigation already, received the attention of a
Three-Judge Bench in Dattatray. The Respondent, claiming to
belong to the Scheduled Tribe 'Halba', was appointed as D
Assistant Professor of Psychiatry in G.B. Pant Hospital, New
Delhi against a post reserved for Scheduled Tribes. A
verification of the Certificate of Scheduled Tribe disclosed that
he did not belong to the Halba Tribe. The second challenge to
this finding, before the High Court, also proved to be futile. E
However, on what has been held to be a misinformed reading
of the Constitution Bench decision in Mi/ind, the High Court
thought it fit to protect his service. The Three-Judge Bench
referred to two other decisions of this Court namely Bank of
India v. Avinash D. Mandivikar (2005) 7 SCC 690 and BHEL F
 v. Suresh Ramkrishna Burde (2007) 5 SCC 336 and noting
that the employee had falsely claimed that he belonged to the
 Scheduled Tribe/Halba, set aside the judgment of the High
 Court. Whilst it permitted settlement of employee-Doctor's
terminal benefits it placed an embargo on his receiving any G
 pensionary benefits. This conclusion was arrived at by the
 Three-Judge Bench without noting State of Maharashtra v.
 Sanjay K. Nimje (2007) 14 SCC 481 where the impugned
 Order passed by the Division Bench of the High Court of
 Judicature at Bombay directing the reinstatement of a person H
    816       SUPREME COURT REPORTS                 (2013] 12 S.C.R.


A belonging to the 'Koshti' Tribe, (not even 'Koshti-Halbas') was
  set aside.

        5. It is evident that there is a plethora of precedents on this
   aspect of the law, and perhaps for this reason Counsel for the
8  parties  were remiss in drawing our attention in the present
   proceedings to the detailed judgment in Kavita So/unke v.
   State of Maharashtra (2012) 8 SCC 430, in which one of us,
   Thakur J, had analysed as many as eleven precedents including
   those discussed above. After reviewing all the judgments it was
C held, in the facts and circumstances of that case, that since that
   party had not intentionally or with dishonest intent fabricated
  particulars of a scheduled tribe with a view to obtain an
  undeserved benefit in the matter of appointment, she was
  entitled to protection against ouster from service, but no other
  benefit. In view of the comprehensive yet concise consideration
0
  of case law in So/unke, any further analysis would make the
  present determination avoidably prolix, and therefore our
  endeavour will be to cull out the principles which would be
  relevant for deciding suchlike conundrums. These are - (a) If
E any person has fraudulently claimed to belong to a Scheduled
  Caste or Scheduled Tribe and has thereby obtained
  employment, he would be disentitled from continuing in
  employment. The rigour of this conclusion has been diluted only
  in instances where the Court is confronted with the case of
F students who have already completed their studies or are on
  the verge of doing so, towards whom sympathy is
  understandably extended; (b) Where there is some confusion
  concerning the eligibility to the benefits flowing from Scheduled
  Caste or Scheduled Tribe status, such as issuance of relevant
G certificates to persons claiming to be 'Koshtis' or 'Halba
  Koshtis' under the broadband of 'Halbas', protection of
  employment will be available with the rider that these persons
  will thereafter be adjusted in the general category thereby
  rendering them ineligible to further benefits in the category of
H Scheduled Caste or Scheduled Tribe as the case may be; (c)
     SHALINI v. NEW ENGLISH HIGH SCH. ASSN.                        817
                [VIKRAMAJIT SEN, J.]
this benefit accrues from the decision of this Court inter alia in         A
Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008)
9 sec 54 which was rendered under Article 142 of the
Constitution of India. Realising the likely confusion in the minds
of even honest persons the Resolutions/Legislation passed by
the State Governments should spare some succour to this                    B
section of persons. This can be best illustrated by the fact that
it was in Mi/ind that the Constitution Bench clarified that
'Koshtis' or 'Halba-Koshtis' were not entitled to claim benefits
as Scheduled Tribes and it was the 'Halbas' alone who were
so entitled. A perusal of the judgment in Vilas by Sirpurkar J,            C
as well as Solunke makes it clear that this protection is
available by virtue of the decisions of this Court; it is not
exclusively or necessarily predicated on any Resolution or
 Legislation of the State Legislature; (d) Where a Resolution or
 Legislation exists, its raison d'etre is that protection is justified     D
in presenti (embargo on removal from service or from
 reversion) but not in futuro (embargo on promotions in the
 category of Scheduled Caste or Scheduled Tribe).

     6. A reading of the impugned Judgment requires us to                  E
clarify an important aspect of the doctrine of precedence.
Dattatray is the only Three-Judge Bench decision, and
therefore indisputably holds pre-eminence. However, by that
time several decisions had already been rendered by Two-
Judge Benches some of which have already been discussed
                                                                           F
above. It was within the competence of Dattatray Bench to
overrule the other Two-Judge Benches. Despite the fact that it
has not done so the per incuriam principle would not apply to
the decision because it was a larger Bench. However, no
presumption can be drawn that the Dattatray Three-Judge                    G
Bench decision was of the opinion that the earlier Two-Judge
Bench decisions had articulated an incorrect interpretation of
the law. That being so, the Two-Judge Bench views may still
be relied upon so long as the ratio of Dattatray is not directly
in conflict with their ratios. It is therefore imperative to distill the   H
    818      SUPREME COURT REPORTS                 [2013] 12 S.C.R.

A ratio of Dattatray, which we have already discussed in some
  detail. We need only reiterate therefore that the Three-Judge
  Bench was perceptibly incensed with the falsity of the claim of
  the employee to Scheduled Caste/Scheduled Tribe status. That
  was not a case where a legitimate claim of consanguinity to a
B 'Halba Kosh ti', 'Koshti' or 'Gadwal Koshti' etc. had been made,
  which was at the inception point considered to be eligible to
  beneficial treatment admissible to Scheduled Tribes, later to
  be reversed by the Constitution Bench decision in Mi/ind and
  declared to be the entitlement of Halbas only. It is not the intent
C of law to punish an innocent person and subject him to
  extremely harsh treatment. That is why this Court has devised
  and consistently followed that taxation statutes, which almost
  always work to the pecuniary detriment of the assessee, must
  be interpreted in favour of the assessee. Therefore, as we see
o it, on one bank of the Rubicon are the cases of dishonest and
  mendacious persons who have deliberately claimed
  consanguinity with Scheduled Castes or Scheduled Tribes etc.
  whereas on the other bank are those marooned persons who
  honestly and correctly claimed to belong to a particular
E Scheduled Caste/Scheduled Tribe but were later on found by
  the relevant Authority not to fall within the particular group
  envisaged for protected treatment. In the former group, persons
  would justifiably deseNe the immediate cessation of all
  benefits, including termination of services. In the latter, after the
F removal of the nebulousness and uncertainty, while the services
  or benefits already enjoyed would not be negated, they would
  be disentitled to claim any further or continuing benefit on the
  predication of belonging to the said Scheduled Caste/
  Scheduled Tribe.
G
       7. We must now reflect upon the Government Resolution
  dated 15.6.1995 passed by the Government of Maharashtra.
  Virtually it grants status quo as regards employment inasmuch
  as it states that those persons who, on the basis of Caste
H Certificates, already stand appointed or promoted in the
    SHALINI v. NEW ENGLISH HIGH SCH. ASSN.                  819
               [VIKRAMAJIT SEN, J.]
Government or Semi-Government, shall not be demoted or              A
removed from service. Thereafter, the Maharashtra Scheduled
Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis)
Nomadic Tribes, Other Backward Classes and Special
Backward Category (Regulation of Issuance and Verification
of) Caste Certificate Act, 2000 (for short, '2000 Act') was         B
passed by the Legislature and received the assent of the
President. Section 1Othereof reads thus :

    "10. Benefits secured on the basis of false Caste
    Certificate to be withdrawn.
                                                                    c
           (1) Whoever not being a person belonging to any of
    the Scheduled Castes, Scheduled Tribes, De-notified
    Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward
    Classes of Special Backward Category secures
    admission in any education institution against a seat           D
    reserved for such Castes, Tribes or Classes, or secures
    any appointment in the Government, local authority or in
    any other company or corporation, owned or controlled by
    the Government or in any Government aided institution or
    co-operative society against a post reserved for such           E
    Castes, Tribes or Classes by producing a false Caste
    Certificate shall, on cancellation of the Caste Certificate
    by the Scrutiny Committee, be liable to be debarred from
    the concerned educational institution, or as the case may
    be, discharged from the said employment forthwith and any       F
    other benefits enjoyed or derived by virtue of such
    admission or appointment by such person as aforesaid
    shall be withdrawn forthwith.

          (2) Any amount paid to such person by the
     Government or any other agency by way of scholarship,          G
     grant, allowance or other financial benefit shall be
     recovered from such person as an arrears of land revenue.

            (3) Notwithstanding anything contained in any Act for
     the time being in force, any Degree, Dilploma or any other     H
    820       SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A         educational qualification acquired by such person after
          securing admission in any educational institution on the
          basis of a Caste Certificate which is subsequently proved
          to be false shall also stand cancelled, on cancellation of
          such Caste Certificate by the Scrutiny Committee.
B
                 (4) Notwithstanding anything contained in any law for
          the time being in force, a person shall be disqualified for
          being a member of any statutory body if he has contested
          the election for local authority, co-operative society or any
          statutory body on the seat reserved for any of Scheduled
c         Castes, Scheduled Tribes, De-notified Tribes (Vimukta
          Jatis), Nomadic Tribes, Other Backward Classes or
          Special Backaward Category by procuring a false Caste
          Certificate as belonging to such Caste, Tribe or Class on
          such false Caste Certificate being cancelled by the
D         Scrutiny Committee, and any benefits obtained by such
          person shall be recoverable as arrears of land revenue and
          the election of such person shall be deemed to have been
          terminated retrospectively."

E      In essence, the Section cancels with pre-emptive effect any
  benefit that may have been derived by a person based on a
  false caste certificate. Whilst "Caste Certificate" has been
  defined in Section 2(a) of the 2000 Act, "False Caste
  Certificate" has not been dealt with in the Definitions clause.
F There is always an element of deceitfulness, in order to derive
  unfair or undeserved benefit whenever a false statement or
  representation or stand is adopted by the person concerned.
  An innocent statement which later transpires to be incorrect
  may be seen as false in general sense would normally not
G attract punitive or detrimental consequences on the person
  making it, as it is one made by error. An untruth coupled with a
  dishonest intent however requires legal retribution. It appears
  to us that Section 10 applies in the Datta/ray mould only. It was
  obviously for this reason that in Vilas, Serna J, was of the
H opinion that the 2000 Act did not apply to the facts before it
    SHALINI v. NEW ENGLISH HIGH SCH. ASSN.                · 821
               [VIKRAMAJIT SEN, J.]
whereas Sirpurkar J, after concurring with Serna J, granted A
protection albeit under Article 142 of the Constitution of India.
In Nimje another Two-Judge Bench held that Government
Resolution dated 15.6.1995 would continue to apply even after
the passing of the 2000 Act so long as the appointment had
taken place prior to 1995. There is, therefore, palpable wisdom B
in the Office Memorandum dated 10.8.2010 of the Government
of India, Ministry of Personnel, Public Grievances and
Pensions, Department of Personnel & Training to the effect that
"it has been decided that the persons belonging to the 'Halba
Koshti/Koshti' caste who got appointment against vacancies C
reserved for the Scheduled Tribes on the basis of Scheduled
Tribe certificates, issued to them by the competent authority,
under the Constitution (Scheduled Tribes) Order, 1950 (as
amended from time to time) relating to the State of Maharashtra
and whose appointments had become final on or before D
28.11.2000, shall not be affected. However, they shall not get
any benefit of reservation after 28.11.2000."

      8. The Appellant before us has been in service since
6.11.1981 on the strength of her claim of consanguinity to          E
'Halba Scheduled Tribe' duly predicated on a Certificate dated
8.7.1974 issued by the Competent Authority. Avowedly she was
appointed in a vacancy earmarked against the Scheduled
Tribe category. She was confirmed as Assis~nt Teacher with
                                              t,
effect from 1.1.1984. Respondent nos.1 and by order dated
                                                                    F
17 .9.1989 appointed the Appellant as Assistant Head Mistress.
Thereafter on 28.4.1994 she was promoted as Head Mistress
by an order of even date, subject to production of Caste Validity
Certificate. It is not Clear when the certificate produced by the
Appellant was referred to the Caste Scrutiny Committee,             G
Nagpur for verification, but the said Committee by Order dated
20.8.2003 held it to be invalid. The learned Single Judge of the
High Court of Judicature at Bombay, Nagpur Bench granted.
protection in service on the basis of Government Resolution
dated 15.6.1995 by his order dated 2.9.2003 in Writ Petition        H
    822          SUPREME COURT REPORTS             [2013] 12 S.C.R.

A No.3500 of 2003. Protracted litigation thereafter ensued
  eventually resulting in the filing of another Writ Petition No.4532
  of 2004 in which a learned Single Judge by order dated
   11.11.2009 set aside the reinstatement order passed by the
  School Tribunal, Nagpur which came to be affirmed by the
B Division Bench in the impugned Order which was of the opinion
  that Dattatray prohibited the extension of any protection to the
  Appellant. Having come to that conclusion, the Division Bench
  did not think it necessary to consider the plethora of precedents,
  albeit of Two-Judge Benches where protection had in fact been
C granted. Be that as it may, we think that since there was no
  falsity in the claim of the Appellant and therefore that she cannot
  be viewed as having filed a 'false' Caste Certificate, the rigours
  of Section 10 of the 2000 Act would not apply to her case. A
  perusal of the Order of the Scheduled Tribe Caste Certificate
D Committee, Nagpur shows that the Committee was satisfied
  that her claim to the caste of 'Gadwal Koshti' was correct but
  that she did not belong to 'Halba' Scheduled Tribe. Government
  Resolution dated 15.6.1995 specifically declares that the
  following were basically backward in social, economic and
E educational viewpoint and were therefore "special backward
  class" vide Government Resolution dated 7.12.1994:

           "Sr. No.    Name of the Caste

            1.
F
           2.
           3.          (1) Koshti (2) Halba Koshti (3) Halba Caste (4)
                       Sali (5) Ladkoshti (6) Gadwal Koshti (7)
                  Deshkar (8) Salewar (9) Padmashali (10) Dwang
G                 (11) Kachi Dhande (Glass occupation) (12) Patwos
                  (13) Satpal (14) Sade (15) Dhankoshti.
                                                [Emphasis supplied]

H         9. It requires specialised bodies such as Caste Scrutiny
    SHALINI v. NEW ENGLISH HIGH SCH. ASSN.               823
               [VIKRAMAJIT SEN, J.]
Committees, specialised lawyers, seasoned bureaucrats etc. A
to decipher which category a relatively backward, or ostracized
or tribal person falls in. Can it therefore seriously be contended
that a person who has honestly, in contradistinction with falsely,
claimed consanguinity with a certain group which was later on
found not to belong to an envisaged Scheduled Tribe but to a B
special backward class be visited with termination of her
employment? We think that that is not the intent of the law, and
certainly was not what the Three-Judge Bench was confronted
with in Dattatray. In our opinion, therefore, the Appellant should
 have been debarred from any further advantage that would C
enure to persons belonging to the 'Halba' Tribe.

      10. Accordingly, we direct reinstatement of the Appellant
in service but without any back wages. With the passage of time
it is possible that there may be another incumbent as Head
                                                                0
Mistress of the Respondent No.1-School and we think that it
would not be equitable to remove such person. However, if this
post falls vacant before the Appellant reaches 'the age of
retirement or superannuation she shall be re-appointed to that
post but with no further promotion as a Scheduled Tribe E
candidate unless she is otherwise entitled as a special
backward class candidate. The Appeal stands disposed of
accordingly. The parties shall bear their respective costs.
R.P.                                     Appeal disposed of.