THE CHIEF REGIONAL OFFICER THE ORIENTAL INSURANCE CO LTDversusPRADIP AND ANR

                        [2020] 3 S.C.R. 459                              459


                THE CHIEF REGIONAL OFFICER                               A
             THE ORIENTAL INSURANCE CO LTD
                                  v.
                        PRADIP AND ANR
                    (Civil Appeal No 742 of 2020)                        B
                        JANUARY 27, 2020
        [DR DHANANJAYA Y CHANDRACHUD AND
                 K. M. JOSEPH, JJ.]
      Service Law – False representation and appointment to a            C
reserved post – The first respondent was appointed by the appellant
on the basis of a claim that he belonged to a Scheduled Tribe, namely,
the Dhangad Community- However, record showed that he belonged
to the Dhangar Community (a nomadic tribe) – The High Court by
order dated 11.07.2016 issued a direction to the effect that the
                                                                         D
services of the first respondent were liable to be protected – The
Respondent relied upon a circulars dated 08.04.2019 and
20.06.2019 issued by the Department of Revenue, Central Board
of Direct taxes – Both Circulars have relied upon the Judgments of
a two-Judge Bench of this Court in SG Barapatre v. Shri Ananta
Gajanan Gaiki and Gajanan Marotrao Nimje v. The Reserve Bank             E
of India – On appeal , held: Both the Judgments i.e. Barapatre and
Nimje relied on by the respondent were prior to the decision of the
three Judge Bench in Chairman and Managing Director, Food
Corporation of India v. Jagdish Balaram Bahira – Both Barapatre
and Nimje are decisions of a two judge Bench and do not lay down
                                                                         F
any principle of law contrary to the binding three Judge Bench
decision in FCI – Neither the DOPT circular dated 08.04.2019 nor
the circular dated 20.06.2019 of the Department of Revenue can
depart from the principles laid down in FCI – The circulars, hence
only applied to the peculiar facts noted in Barapatre and Nimje –
In FCI, it was held that once it was found that candidate had            G
obtained admission upon a false representation to belong to the
reserved category, the appointment would be vitiated by fraud and
would be void ab initio – Therefore, the impugned Judgment of the
High Court dated 11.07.2016, set aside.
                                                                         H
                                 459
460           SUPREME COURT REPORTS                     [2020] 3 S.C.R.


A            The first respondent was appointed as an Assistant by the
      appellant based on a claim that he belonged to a Scheduled Tribe,
      namely, the Dhangad Community. As the record shows, he
      belongs to the Dhangar Community (a nomadic tribe) and not to
      the Dhangad Community (listed as a Scheduled Tribe). The
      Scrutiny Committee concluded that there was no merit in the
B
      claim of the first respondent of belonging to the Dhangad
      Scheduled Tribe. Aggrieved, the first respondent filed the writ
      petition before the High Court. The High Court, by its judgment
      and order dated 11.07.2016 issued a direction to the effect that
      the services of the first respondent were liable to be protected.
C     Hence, the present civil appeal.
           Allowing the appeal, the Court
            HELD: 1. In Barapatre, the appellants were in appeal
      before this Court against the orders passed by the Nagpur Bench
      of the Bombay High Court. The High Court noted that the
D     appellants had declined to subject themselves to a scrutiny of
      their caste certificate, as a consequence of which their services
      were directed to be discontinued. When the matter travelled in
      appeal before this Court, a two judge Bench of this Court, by its
      judgment dated 10 October 2018, noted that the same issue had
E     earlier been considered by the High Court, leading to a judgment
      dated 1 November 2012 in Writ Petition No 5198 of 2009 and
      connected matters. This Court noted in its decision in Barapatre
      that Food Corporation of India challenged the order of the High
      Court dated 1 November 2012 before this Court in Special Leave
      Petitions under Article 136 of the Constitution which were
F     dismissed on 12 April 2013. Review petitions were also dismissed
      on 26 February 2014. The challenge by the Food Corporation of
      India to the order of the Bombay High Court had been rejected
      on 12 April 2013 and as a result of the decision inter partes, the
      order of the High Court had attained finality. Consequently, this
G     Court clarified that only the employees covered by the earlier
      judgment shall be entitled to the benefits which have been granted
      specifically by the High Court. [Paras 12 and 13][467-G; 468-A-
      B, E; 469-A-B]
            2. It was in the peculiar background, which was noted by
H     this Court, that the protection of services was granted in Nimje.
      Again, it is necessary to note that this Court has noted that the
            CHIEF REGIONAL OFFICER ORIENTAL                            461
              INSURANCE CO. LTD. v. PRADIP

common judgment of the High Court dated 1st November, 2012             A
was challenged before this Court and both the Special Leave
Petitions and the Review Petitions were also dismissed. [Para
15][470-C-D]
      3. The decisions in Barapatre dated 10 October 2018 and
Nimje dated 11 October 2018 were rendered in a context where,          B
prior to the decision of the three judge Bench in FCI, the order
of the High Court dated 1 November 2012 had attained finality.
Since the order of the High Court inter partes had attained finality
before the decision in FCI, the matter had to rest there. Both
Barapatre and Nimje are decisions of a two judge Bench and do
not lay down any principle of law contrary to the binding three        C
judge Bench decision in FCI. Neither the DOPT circular dated 8
April 2019 nor the circular dated 20 June 2019 of the Department
of Revenue can depart from the principles laid down in FCI. The
circulars must hence be construed to apply only to the peculiar
facts noted in Barapatre and Nimje. Any other construction of          D
the circulars will render them ultra vires. The government by an
executive act cannot possibly over-ride the binding decision of
the three judge Bench of this Court in FCI. [Para 16][470-E-G]
      4. The present case is governed by the judgment in FCI.
Admittedly, the issue pertaining to the protection of the services     E
of the first respondent had not attained finality prior to the
decision of the three judge Bench in FCI. The High Court has
granted protection to the first respondent purely on the basis of
the Full Bench judgment in Arun Sonone, which has specifically
been overruled by this Court. [Para 17][471-E]
                                                                       F
      Chairman and Managing Director, Food Corporation
      of India v. Jagdish Balaram Bahira (FCI) (2017) 8 SCC
      670 : [2017] 11 SCR 271 – relied on.
      S G Barapatre v. Shri Ananta Gajanan Gaiki (Barapatre)
      2018 (10) JT 316; Gajanan Marotrao Nimje v. The                  G
      Reserve Bank of India (Nimje) (2019) 12 SCC 639 –
      referred to.
      Arun Sonone v. State of Maharashtra 2015 (1) Mh LJ
      457 – referred to.
                                                                       H
462             SUPREME COURT REPORTS                         [2020] 3 S.C.R.


A                             Case Law Reference
      [2017] 11 SCR 271                 relied on              Para 6
      2018 (10) JT 316                  referred to            Para 10
      (2019) 12 SCC 639                 referred to            Para 10
B             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 742 of
      2020.
            From the Judgment and Order dated 11.07.2016 of the High Court
      of Judicature at Bombay, Bench at Nagpur, Nagpur in Writ Petition No.
      2846 of 2016.
C
           Dinesh Mathur, Ms. Priyanka Bharti, Ms. Jyotika Thakur, Kaushik
      Poddar, Advs. for the Appellant.
            Soumya Chakraborty, Sr. Adv., Shailesh Narnaware, Nishit Shah,
      Rahul Sharma, Advs. for the Respondents.
D             The Judgment of the Court was delivered by
              DR. DHANANJAYA Y CHANDRACHUD, J.
              1. Delay condoned.
              2. Leave granted.
E             3. The first respondent was appointed as an Assistant by the
      appellant on the basis of a claim that he belonged to a Scheduled Tribe,
      namely, the Dhangad community. As the record shows, he belongs to
      the Dhangar community (a nomadic tribe) and not to the Dhangad
      community (listed as a Scheduled Tribe for Maharashtra). The first
F     respondent claimed the benefit of belonging to a Schedule Tribe on the
      basis of a caste certificate dated 17 August 1984 issued by the Executive
      Magistrate, Hingna. The appellant called upon the first respondent to
      submit the caste certificate by a letter dated 15 February 2011. The
      appellant then addressed a communication on 14 July 2011 to the issuing
      authority which, by a communication dated 9 May 2014, informed the
G     appellant that the caste certificate was not registered in its records. In
      August 2014, the first respondent was called upon to submit a fresh
      caste certificate. The first respondent did not submit a fresh caste
      certificate, but approached the issuing authority and then submitted a
      letter dated 14 August 2014 to the appellant whereby the issuing authority
      had stated that the caste certificate had been issued from the office of
H
     CHIEF REGIONAL OFFICER ORIENTAL INSURANCE CO.                            463
    LTD. v. PRADIP [DR. DHANANJAYA Y CHANDRACHUD, J.]

the Executive Magistrate. On 3 August 2015, the first respondent applied      A
for verification of his caste certificate to the Scrutiny Committee. The
first respondent submitted an application before the Scrutiny Committee
on 15 February 2016. By an order dated 25 April 2016, the Scrutiny
Committee invalidated the claim. The Scrutiny Committee noted, in the
course of its order, that the first respondent had submitted an application
                                                                              B
on 15 February 2016 merely seeking protection of his service. The
Scrutiny Committee observed that the first respondent was well aware
of the fact that he did not belong to the Dhangad Scheduled Tribe, but
belonged to the Dhangar Community, which is a nomadic tribe. It noted
that the documents which had been submitted by the first respondent
pertained only to the Dhangar Community and not to the Dhangad                C
Scheduled Tribe. The documents pertaining to the first respondent and
his father were scrutinized by the Committee which came to the
conclusion that there was no merit in the claim of the first respondent of
belonging to the Dhangad Scheduled Tribe.
       4. Aggrieved by the order of the Scrutiny Committee, the first         D
respondent instituted a writ petition1 before the High Court of Judicature
at Bombay Bench at Nagpur. The relief which was sought in the writ
petition was for the protection of his services in view of a Full Bench
decision of the High Court in Arun Sonone v State of Maharashtra2
(Arun Sonone). The first respondent also challenged the order of the
Scrutiny Committee.                                                           E

      5. The High Court, by its judgment and order dated 11 July 2016,
issued a direction to the effect that the services of the first respondent
were liable to be protected, in view of the judgment of its Full Bench in
Arun Sonone.
                                                                              F
      6. Assailing the judgment of the High Court, it has been submitted
on behalf of the appellant by Mr Dinesh Mathur, learned counsel, that
the judgment of the Full Bench of the Bombay High Court in Arun
Sonone has been overruled in a decision of a three-Judge Bench of this
Court in Chairman and Managing Director, Food Corporation of
India v Jagdish Balaram Bahira3 (FCI).                                        G
       7. In its judgment in FCI,this Court has held:

1
  Writ Petition No 2846 of 2016
2
  2015 (1) Mh LJ 457
3
  (2017) 8 SCC 670                                                            H
464            SUPREME COURT REPORTS                            [2020] 3 S.C.R.


A           “48…Where a candidate had been appointed to a reserved post
            on the basis of the claim that he or she was a member of the
            group for which the reservation is intended, the invalidation of the
            claim to belong to that group would, as a necessary consequence,
            render the appointment void ab initio. The rationale for this is that
            a candidate who would otherwise have to compete for a post in
B
            the general pool of unreserved seats had secured appointment in
            a more restricted competition confined to the reserved category
            and usurped a benefit meant for a designated caste, tribe or class.
            Once it was found that the candidate had obtained admission upon
            a false representation to belong to the reserved category, the
C           appointment would be vitiated by fraud and would be void ab
            initio. The falsity of the claim lies in a representation that the
            candidate belongs to a category of persons for whom the
            reservation is intended whereas in fact the candidate does not so
            belong. The reason for depriving the candidate of the benefit which
            she or he has obtained on the strength of such a claim, is that a
D
            person cannot retain the fruits of a false claim on the basis of
            which a scarce public resource is obtained…
            A candidate who does so causes detriment to a genuine candidate
            who actually belongs to the reserved category who is deprived of
            the seat. For that matter, a detriment is caused to the entire class
E           of persons for whom reservations are intended, the members of
            which are excluded as a result of an admission granted to an
            imposter who does not belong to the class. The withdrawal of
            benefits, either in terms of the revocation of employment or the
            termination of an admission was hence a necessary corollary of
F           the invalidation of the claim on the basis of which the appointment
            or admission was obtained. The withdrawal of the benefit was
            not based on mens rea or the intent underlying the assertion of a
            false claim. In the case of a criminal prosecution, intent would be
            necessary. On the other hand, the withdrawal of civil benefits
            flowed as a logical result of the invalidation of a claim to belong to
G           a group or category for whom the reservation is intended.”
            8. We may note at this stage that in paragraph 59 of the judgment,
      this Court has observed thus:
            “59. The Full Bench judgment of the Bombay High Court
H           in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom
 CHIEF REGIONAL OFFICER ORIENTAL INSURANCE CO.                          465
LTD. v. PRADIP [DR. DHANANJAYA Y CHANDRACHUD, J.]

   4595 : (2015) 1 Mah LJ 457] has essentially construed the            A
   judgments in Kavita Solunke [Kavita Solunke v. State of
   Maharashtra, (2012) 8 SCC 430 : (2012) 2 SCC (L&S) 609] and
   in Shalini [Shalini v. New English High School Assn., (2013) 16
   SCC 526 : (2014) 3 SCC (L&S) 265] as having impliedly overruled
   the earlier Full Bench judgments in Ganesh Rambhau
                                                                        B
   Khalale [Ganesh Rambhau Khalale v. State of Maharashtra, 2009
   SCC OnLine Bom 20 : (2009) 2 Mah LJ 788] and Ramesh Suresh
   Kamble [Ramesh Suresh Kamble v. State of Maharashtra, 2006
   SCC OnLine Bom 1078 : (2007) 1 Mah LJ 423] . In view of the
   conclusion which we have arrived at in regard to the earlier
   decisions rendered by the two-Judge Benches in Kavita                C
   Solunke [Kavita Solunke v. State of Maharashtra, (2012) 8 SCC
   430 : (2012) 2 SCC (L&S) 609] and Shalini[Shalini v. New English
   High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S)
   265] , we are unable to subscribe to the view expressed by the
   Full Bench in Arun [Arun v. State of Maharashtra, 2014 SCC
                                                                        D
   OnLine Bom 4595 : (2015) 1 Mah LJ 457] . The judgment of the
   Full Bench of the Bombay High Court in Arun [Arun v. State of
   Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ
   457] holds that: (SCC OnLine Bom para 75)
   (i) mere invalidation of the caste claim by the Scrutiny Committee
   would not entail the consequences of withdrawal of benefits or       E
   discharge from employment or cancellation of appointments that
   have become final prior to the decision in Milind [State of
   Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117]
   on 28-11-2000;
   (ii) the benefit of protection in service upon invalidation of the   F
   caste claim is available not only to persons belonging to Koshti
   and Halba Koshti but is also available to persons belonging to the
   special backward category on the same terms.
   The High Court has even gone to the extent of holding that the
   decision in Milind [State of Maharashtra v. Milind, (2001) 1 SCC     G
   4 : 2001 SCC (L&S) 117] was in the nature of prospective
   overruling of the law which was laid down by the Bombay High
   Court. The above view of the Bombay High Court is clearly
   unsustainable. Neither the judgment in Milind [State of
   Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117]          H
466            SUPREME COURT REPORTS                           [2020] 3 S.C.R.


A           nor any of the judgments of this Court which have construed it
            have held that Milind [State of Maharashtra v. Milind, (2001) 1
            SCC 4 : 2001 SCC (L&S) 117] was an exercise in prospective
            overruling. The High Court was in error in holding so. The decision
            of the Full Bench in Arun [Arun v. State of Maharashtra, 2014
            SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] is unsustainable.
B
            The Full Bench had evidently failed to notice that cases where
            the protection was granted by this Court following the invalidation
            of a caste claim was in exercise of the power conferred by Article
            142 of the Constitution, depending upon the facts and circumstances
            of each case. The jurisdiction under Article 142 is clearly not
C           available to the High Court in the exercise of its jurisdiction under
            Article 226. The High Court erred in arrogating that jurisdiction to
            itself.”
            9. Hence, the basis of the judgment of the High Court is
      unsustainable as a result of the law which has been laid down in the
D     judgment in FCI. The decision of the Bombay High Court in Arun
      Sonone has been disapproved.
             10. Faced with this difficulty, Mr Soumya Chakraborty, learned
      senior counsel appearing on behalf of the respondent, has relied upon an
      Office Memorandum dated 8 April 2019 issued by the Ministry of
E     Personnel, Public Grievances and Pensions, Department of Personnel
      and Training. The Office Memorandum is extracted below:
                           “OFFICE MEMORANDUM
            Subject: Orders of Hon’ble Supreme Court in Civil Appeal No
            10396/2018 arising out of SLP No. 13011/2018 Gajanan Marotrao
F           Nimje & Others Vs RBI & Others and Civil Appeals Nos 10387-
            10388/2018 arising out of SLP Nos 18555-18556/2018 SG
            Barapatre & Others Vs Shri Ananta Gajanan Gaiki & Others
            regarding Appointment of candidates belonging to Halba/Halba
            Koshti/Koshti caste/community against vacancies reserved for
G           the Scheduled Tribes; representations received – Regarding
                                        ****
            With reference to the subject cited above, attention is drawn to
            the Hon’ble Supreme Court judgment dated 11.10.2018 in Civil
            Appeal No 10396/2018 arising out of SLP No. 13011/2018 Gajanan
H
     CHIEF REGIONAL OFFICER ORIENTAL INSURANCE CO.                             467
    LTD. v. PRADIP [DR. DHANANJAYA Y CHANDRACHUD, J.]

         Marotrao Nimje & Others Vs RBI & Others In which the Apex             A
         Court has, inter-alia, passed the following order:-
             “,…all appellants (who are from Ha/ba Koshti/Koshti/Halba
             communities) shall be placed below the list of the general
             category candidates as on 28.11.2000 and will be continued as
             such till their superannuation. All the benefits which the        B
             appellants earned as reserved category candidates after
             28.11.2000 will be surrendered/recovered. After 28.11.2000
             the benefits available to the reserved category candidates will
             be given to the members of the reserved category regarding
             whom there is no dispute. There shall be no recovery of any
             benefits from the employees who are already superannuated…”       C

         2. A similar stand has been taken by the Hon’ble Supreme Court
         in Civil Appeals Nos 10387-10388/2018 arising out of SLP Nos
         18555-18556/2018 SG Barapatre & Others Vs Shri Ananta
         Gajanan Gaiki & Others dated 10.10.2018 as under:-
                                                                               D
             “For all purposes, those people will get themselves arrayed in
             the general category as on 28.11.2000 and placed below the
             last of the general category candidate as on that date.”
         3. All Ministries/Departments are requested to furnish action taken
         in the light of the above judgments. Copies of the aforesaid          E
         judgments are annexed herewith for ready reference.”
       Reliance has also been placed on another circular dated 20 June
2019 issued by the Government of India, Department of Revenue, Central
Board of Direct Taxes. Both circulars have relied upon the judgments
of a two-Judge Bench of this Court in S G Barapatre v Shri Ananta              F
Gajanan Gaiki4 (Barapatre) and Gajanan Marotrao Nimje v The
Reserve Bank of India5 (Nimje).
       11. In order to consider the background in which the above circulars
are issued, it would be necessary to advert to certain significant facets
having a bearing on the above two decisions of this Court.
                                                                               G
      12. In Barapatre, the appellants were in appeal before this Court
against the orders passed by the Nagpur Bench of the Bombay High
Court. The High Court noted that the appellants had declined to subject
4
    Civil Appeal Nos 10387-10388 of 2018
5
    Civil Appeal Nos 10396 of 2018                                             H
468            SUPREME COURT REPORTS                              [2020] 3 S.C.R.


A     themselves to a scrutiny of their caste certificate, as a consequence of
      which their services were directed to be discontinued. When the matter
      travelled in appeal before this Court, a two judge Bench of this Court, by
      its judgment dated 10 October 2018, noted that the same issue had earlier
      been considered by the High Court, leading to a judgment dated 1
      November 2012 in Writ Petition No 5198 of 2009 and connected matters.
B
      The High Court, in the course of its earlier judgment, had issued the
      following directions:
            “18. In that view of the matter, we find that the petitioners are
            entitled to limited relief, that they are praying for. In the result, the
            impugned show cause notices are quashed and set aside. It is
C           declared that the petitioners would be entitled to protection of
            their appointments. It is further declared that if any benefits are
            granted after 28.11.2000 on the basis that they belong to Scheduled
            Tribes, the respondent Authorities are at liberty to withdraw the
            said benefits and restore the position as on 28.11.2000. The
D           respondents to take further necessary steps in accordance
            therewith.”
             This Court noted in its decision in Barapatre that Food Corporation
      of India challenged the order of the High Court dated 1 November 2012
      before this Court in Special Leave Petitions under Article 136 of the
E     Constitution which were dismissed on 12 April 2013. Review petitions
      were also dismissed on 26 February 2014. In this background, the Bench
      of two judges in the judgment dated 10 October 2018 in Barapatre
      observed as follows:
            “8. Therefore, the said judgment qua the employees, who were
F           parties to those writ petitions have become final. The benefits
            which have been granted, as per the judgment specifically referred
            to in paragraph 18 of the judgment, which is extracted above,
            cannot be taken away in collateral proceedings.
            9. We make it clear that the employees covered by the said
G           judgment shall only be entitled to the benefits which have been
            granted specifically in paragraph 18 of the judgment referred to
            above. For all purposes, those people will get themselves arrayed
            in the general category as on 28.11.2000 and placed below the
            last of the general category candidate as on that date.”

H
  CHIEF REGIONAL OFFICER ORIENTAL INSURANCE CO.                                 469
 LTD. v. PRADIP [DR. DHANANJAYA Y CHANDRACHUD, J.]

      13. The above observations make it abundantly clear that the              A
challenge by the Food Corporation of India to the order of the Bombay
High Court had been rejected on 12 April 2013 and as a result of the
decision inter partes, the order of the High Court had attained finality.
Consequently, this Court clarified in paragraph 9 of the above order that
only the employees covered by the earlier judgment shall be entitled to
                                                                                B
the benefits which have been granted specifically by the High Court in
paragraph 18 of its judgment, which has been extracted above.
       14. The decision of the two judge Bench of this Court in Nimje
was delivered on 11 October 2018, a day after Barapatre. The judgment,
which pertained to the Reserve Bank of India, again adverted to the
earlier decision of the High Court dated 1 November 2012. The judgment          C
of this Court extracted paragraph 18 of the judgment of the High Court
(quoted above) based on which the Reserve Bank of India had issued a
circular dated 1 July 2013. It was in this background that this Court, in its
judgment dated 11 October 2018, observed as follows:
      “7. Apparently, there was some confusion with regard to the               D
      implementation of the judgment dated 01.11.2012 in the judgment
      in Writ Petition No.1512/2004 and connected matters.
      8. Based on the recent judgment of this Court passed in Chairman
      and Managing Director, Food Corporation of India and Others
      Vs. Jagdish Balaram Bahira and Others, reported in (2017) 8               E
      SCC 670, the High Court passed the impugned order directing the
      termination and recovery of the benefits.
      9. We are afraid, in the peculiar background of the appellants and
      the history of the previous litigation of the same issue, the High
      Court is not justified in passing such an omnibus order. There is         F
      no case for anybody leave alone the writ petitioners that at the
      time of entry in service, the appellants played any fraud. There
      was no case that the petitioners therein had played any fraud in
      obtaining the certificate or employment. In any case the appellants,
      it is pointed out that, even assuming that they do not belong to          G
      Scheduled Caste or Scheduled Tribe, fall either under the most
      backward or under the backward category, who were also entitled
      to some reservation at the time of recruitment. In order to avoid
      any litigation on this aspect only, the High Court in its wisdom
      passed the judgment dated 1.11.2012, that all the petitioners therein
      will be put in the general category.                                      H
470            SUPREME COURT REPORTS                          [2020] 3 S.C.R.


A           10. It will be relevant to note that the common judgment dated
            01.11.2012 was challenged before this Court and the special leave
            petition(s) and the review petition(s) were also dismissed.
            11. Having regard to the background, as above, we are of the
            view that the appellants are entitled to the protection granted by
B           the same High Court in the judgment dated 1.11.2012 in Writ
            Petition No.1512/2004. In any case the parties to the writ petition
            cannot be disturbed collaterally and the judgment operated as a
            judgment in rem in view of the circular dated 1.7.2013 issued by
            the Reserve Bank of India and since the litigations were pursued
            by the respective associations.”
C
             15. The above observations indicate that it was in the peculiar
      background, which was noted by this Court, that the protection of
      services was granted. Again, it is necessary to note that in paragraph 10
      of the observations which have been extracted above, this Court has
      noted that the common judgment of the High Court dated 1 November
D     2012 had been challenged before this Court and both the Special Leave
      Petitions and the Review Petitions were also dismissed.
             16. The above narration would indicate that the decisions in
      Barapatre dated 10 October 2018 and Nimje dated 11 October 2018
      were rendered in a context where, prior to the decision of the three
E     judge Bench in FCI, the order of the High Court dated 1 November
      2012 had attained finality. Since the order of the High Court inter partes
      had attained finality before the decision in FCI, the matter had to rest
      there. Both Barapatre and Nimje are decisions of a two judge Bench
      and do not lay down any principle of law contrary to the binding three
F     judge Bench decision in FCI. Neither the DOPT circular dated 8 April
      2019 nor the circular dated 20 June 2019 of the Department of Revenue
      can depart from the principles laid down in FCI. The circulars must
      hence be construed to apply only to the peculiar facts noted in Barapatre
      and Nimje which we have explained earlier. Any other construction of
      the circulars will render them ultra vires. The government by an executive
G     act cannot possibly over-ride the binding decision of the three judge
      Bench of this Court in FCI. In the decision in FCI, this Court held :
            “65. Administrative circulars and government resolutions are
            subservient to legislative mandate and cannot be contrary either
            to constitutional norms or statutory principles. Where a candidate
H
  CHIEF REGIONAL OFFICER ORIENTAL INSURANCE CO.                                  471
 LTD. v. PRADIP [DR. DHANANJAYA Y CHANDRACHUD, J.]

      has obtained an appointment to a post on the solemn basis that he          A
      or she belongs to a designated caste, tribe or class for whom the
      post is meant and it is found upon verification by the Scrutiny
      Committee that the claim is false, the services of such an individual
      cannot be protected by taking recourse to administrative circulars
      or resolutions. Protection of claims of a usurper is an act of
                                                                                 B
      deviance to the constitutional scheme as well as to statutory
      mandate. No government resolution or circular can override
      constitutional or statutory norms. The principle that the Government
      is bound by its own circulars is well settled but it cannot apply in a
      situation such as the present. Protecting the services of a candidate
      who is found not to belong to the community or tribe for whom              C
      the reservation is intended substantially encroaches upon legal
      rights of genuine members of the reserved communities whose
      just entitlements are negated by the grant of a seat to an ineligible
      person. In such a situation where the rights of genuine members
      of reserved groups or communities are liable to be affected
                                                                                 D
      detrimentally, government circulars or resolutions cannot operate
      to their detriment.”
        17. The present case is governed by the judgment in FCI.
Admittedly, the issue pertaining to the protection of the services of the
first respondent had not attained finality prior to the decision of the three
judge Bench in FCI to which we have made a reference earlier. The                E
High Court has granted protection to the first respondent purely on the
basis of the Full Bench judgment in Arun Sonone, which has specifically
been overruled by this Court.
      18. In the circumstances, we allow the appeal and set aside the
impugned judgment and order of the High Court dated 11 July 2016. In             F
consequence, the Writ Petition filed by the first respondent shall stand
dismissed. There shall be no order as to costs.


Ankit Gyan                                                     Appeal allowed.
                                                                                 G




                                                                                 H