SANDEEP SUBHASH PARATE versus STATE OF MAHARASHTRA AND ORS.

S.B. SINHA, J. Leave granted.

p. 284, margin G

The appellant claims himself to be a member of 'Halba' community. 'Halba' is a Scheduled Tribe. He obtained admission in the courses of Bachelor of Engineering (Instrumentation Engineering) in Pune University, (Respondent No.4), claiming himself to be belonging to 'Halba' a Scheduled Tribe community. According to the appellant, the question as to whether 'Koshti-Halbas' are members of Scheduled Tribe or not had been authoritatively decided for the first time in Stat.:: ofMoharashtra v. Mi/ind and Ors., [200 I] l sec 4 and in that view of the matter, lie had represented himself to be a member of Scheduled Tribe. Drawing our attention to the fact that even in Milind (supra), this Court directed that those, who have completed their courses from the universities, should be allowed to obtain degrees and get the benefit thereof as general candidates, the appellant was also entitled to a similar relief.

pp. 284–285, margin G

Indisputably, the Caste Scrutiny Committee constituted in terms of the decision of this Court in Kumari Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development and Ors., [1994] 6 SCC 241 invalidated the caste certificate granted in favour of the appellant. In the writ petition filed by him thereagainst, an interim order was passed in his favour, in terms whereof he obtained admission in the· course of Bachelor of Engineering (Instrumentation Engineering) in the Government Engineering College, Pune, which is affiliated to the respondent No.4-University. The High Court allowed the writ petition and remitted the matter back to the Scrutiny Committee. His claim was rejected by the Scrutiny Committee by an order dated 30th September, 2002. In a writ petition filed by him before the Nagpur Bench of the Bombay High Court questioning the said order of 30th September, 2002, no interim relief was granted, but, the appellant continued with his studies. The said writ petition was dismissed for default, but, it was restored. He completed his studies in the year 2004. He appeared at the examination. An application was filed by him for a direction to respondent No.4-University to supply him the degree along with the marksheet. However, in the meantime, the writ petition itself was dismissed on merits. Thus, no order was also passed on the said application. The review application filed by the appellant herein has been dismissed by the High Court by reason of the impugned order.

p. 285, margin B

The learned counsel appearing on behalf of the appellant merely urged that this Court may issue a direction to the University to grant him the degree as he has completed his courses of studies in the meantime.

p. 285, margin F

Mr. Ravindra Kumar Adsure, learned counsel appearing on beh~Jf of the State and Mr. Makrand D. Adkar, learned counsel appearing for respondent No.4-University, however, submitted that the appellant has not made out any case for obtaining any relief from the High Court having failed to show his bonafide.

p. 285, margin G

It was urged that as the appellant has played fraud on authorities, he is not entitled to any equitable relief. Reliance has on Bank of India and Anr. v. Avinash Mandivikar and Ors., [2005] and Ram Saran v. l.G. of Police, C.R.P.F. and Ors., (2006) 2 SCALE

p. 286

It now stands admitted that the appellant did not belong community. He was a Koshti. On verification of his caste certificate Vigilance Cell found that his school records clearly showed that belonged to the Koshti community.

p. 286

The question as regards invalidation of caste certificate consideration before this Court in Kumari Madhuri (supra), Court directed the Central Government and the State Governments Caste Scrutiny Committees to go into such issues as and when they consideration. Indisputably, a finding of fact has been arrived at Scrutiny Committee against the appellant negativing his claim member of Scheduled Tribes. However, the fact remains that he admitted in v!ew of an interim order passed by the High Court. the question as to whether 'Koshti-Halbas' are members of Scheduled or not was authoritatively answered only in Mi/ind (supra}, which on 28th November, 2000, wherein it was observed :

p. 286, margin B

"Respondent I joined the medical course for the year Almost 15 years have passed by now. We are told he completed the course and may be he is practising as a doctor. view and at this length of time it is for nobody's benefit admission. Huge amount is spent on each candidate for of medical course. No doubt, one Scheduled Tribe candidate deprived of joining medical course by the admission given Respondent I. If any action is taken against Respondent lead to depriving the service of a doctor to the society public money has already been spent. In these circumstances, judgment shall not affect the degree obtained by him and as a doctor. But we make it clear that he cannot claim the Scheduled Tribe covered by the Scheduled Tribes Order. words, he cannot take advantage of the Scheduled Tribes further or for c;ny other constitutional purpose."

p. 286, margin D

Yet again in R. Vishwanatha Pillai etc. v. State of Kera/a [2004] 2 SCC I 05, a Three Judge Bench of this Court had the occasion with a similar issue. Following Mi/ind (supra}, this Court held:

p. 286, margin G

"In this case we find that the appellant had joined Engineering College in the year 1992. He completed the course studies in the year 1996 under the interim orders of (sic Court which were subject to the final orders to be passed petition. No purpose would be served in withholding the declaration of the result on the basis of the examination already taken depriving him of the degree in case he passes the examination. terms of the orders passed by the Constitution Bench of in State of Maharashtra v. Mi/ind we direct that his result be and he be allowed to take his degree with the condition that not be treated as a Scheduled Caste candidate in future obtaining service or for any other benefits flowing from certificate obtained by him. His caste .:ertificate has been be cancelled. Henceforth, he will be treated as a person belonging the general category for all purposes."

p. 287, margin A

A different opinion, however, was struck in Bank of India and Avinash D. Mandivikar and Ors., (2005] 7 SCC 690, wherein a Two Bench of this Court distinguished Mi/ind (supra) and R. Vishwanatha Pillai (supra) stating that protection given therein cannot be extended to an of a Bank and, thus, the factors which weighed with this Court applied to the respondent therein. The Court observed that in any Respondent No. I had played fraud, he should not be allowed benefits thereof. The same learned Judge in Ram Saran (supra) leniency should not be shown to a person who admittedly committed

p. 287, margin C

The issue again came of up consideration in LIC of India (2006] 2 SCC 4 71, wherein this Court remitted the matter back to Court observing that :

p. 287, margin E

"Before us it was urged on behalf of Responden,t I State of Maharashtra at the relevant time there were resolutions/ government orders which made the respondent believe that no fraudulent intention in claiming to be Halba. Mr. Lalit, counsel for the respondent submitted that none of these aspects (including various GRs) have been considered. The High the present case proceeded on the basis as if mere filing undertaking in the line suggested by the writ petitioner was to bring the case under the umbrella of the decision in Mi/ind That is clearly not so.

p. 287, margin F

As the High Court has not considered the matter perspective, except relying on Milind case we think remit the matter to the High Court for a fresh consideration of the case on the grounds, if any, without being influenced observation in this order." Some peculiar characteristics exist in this case: (I) The appellant competed his substantial tenure as

p. 288, margin A

the interim orders passed by the High Court. (2) No opportunity of hearing was given to him Committee at the first instance and his first writ

p. 288, margin A

allowed. (3) Although, in the second writ petition, he could interim order, yet he was allowed to continue his

p. 288, margin C

any demur by the State and University authorities. (4) He filed an application after completion of ,respondent No.4-University should be directed the degree of Bachelor of Engineering. No order

p. 288, margin C

thereupon. (5) A review application was filed on the basis that not take into consideration the decision of this

p. 288, margin D

(supra).

p. 288, margin E

A person indisputably is not entitled to a relief only because order was passed in his favour, but the premise on which order was passed would assume some significance in the instant far as a presumption may be drawn that prima facie the appellant considered guilty of commission of fraud and the possibility in regard to his status as a member of Scheduled Tribe as whether 'Koshti-Halbas' were members of Scheduled Tribe finally determined, was in the mind of the court. See for example, State Insurance Corporation v. Distilleries & Chemical Ma::.door Ors., (2006) 7 SCALE 171. The appellant took his admission i.e., prior to the decision of this Court in Milind (supra). had obtained his admission in a professional institution not basis of his merits but on the basis that he belonged to a reserved It is also true that thereby he might have deprived a genuine reserved category from obtaining admission, but, in a case what is necessary to bear in mind is the bonafide or otherwise of the appellant. He might not have semblance of right as was observed by the High Court but as the learned counsel for the appellant states that he might have been under a bonafide belief that Koshti-Halbas were members of a Scheduled Tribe.

pp. 288–289, margin E

It is not in dispute that the Bombay High Court held so. However, as it appears from the decision of this Court in LJC (supra) that the State might have also issued some Government orders making such declaration. Indisputably, the conduct of a party assumes significance in moulding the relief. This court, while exercising its discretionary jurisdiction and to do complete justice between the parties in tenns of Article 142 of the Constitution of India, must consider all relevant aspects of the matter, including the decisions of this Court. The doctrine of proportionality emerging from the recent trend of decisions in preference to the doctrine of Wednesbury unreasonableness is also a factor which weighs with us. See Teri Oat Estates (P) Ltd. v. U. T., Chandigarh & Ors., [2004] 2 SCC 130 and A. Sudhakar v. Post Master General, Hyderabad & Anr., (2006) 3 SCALE 524.

p. 289, margin A

We do not find any lack of bonafide on the part of the appellant. He, it will bear repetition to state, got admission in the professional course as far back in the year 1998. :::or about last three years, he had not been able to receive his degree of Engineering, although, he pursued his studies after he had passed class 12th examination. Just like Medical Education, the State also incurs a heavy expenditure in imparting other professional education like Engineering. We, in the peculiar facts and circumstances of this case, are not inclined to go into the question as regards purported commission of fraud by the appellant, particularly, when the University admitted him without any demur whatsoever. We are doing so having regard to the doctrine of proportionality. The appellant has suffered a lot. He might not be entirely responsible therefor. He might have been under a bonafide belief that he comes within the purview of notified category. We, therefore, albeit with much reluctance accept the fervent and impassionate plan made by the learned counsel appearing for the appellant that he be allowed to obtain the degree. The same shall, however, be subject to payment of Rs. I lakh in favour of the State of Maharashtra so as to recompense the State to some extent the amount spent on him for imparting education as a reserved category candidate. Such payment must be made within three months from this date. On filing satisfactory proof of the deposit of such an amount, the respondent No.4 shall immediately issue the degree in his favour. The appellant shall not claim any benefit flowing from the caste certificate obtained by him, which shall A stand cancelled. In future, for all purposes he will be treated to be a person belbnging to the general category.

pp. 289–290, margin D

The appeal is allowed to the extent mentioned hereinbefore and on the

p. 290

aforementioned terms. No costs. B B.S. Appeal allowed.

p. 290