State Of Maharashtra & Ors vs Reshma Ramesh Meher & Anr

its functionaries, namely, the Secretary to the

Government of Maharashtra, Social Welfare

Department; Divisional Commissioner, Konkan

Division and Executive Magistrate, Teh. Vasai, District Thane, appellants No.2, 3 and 4 respectively call in

question the legality of the judgment dated 22nd June,

2006, rendered by the High Court of Judicature at

Bombay in W.P. No.5867 of 2002. By the impugned

order the High Court has set aside order dated 3rd

April, 1998 passed by the Maharashtra Administrative

Tribunal (for short `the Tribunal') allowing the review

applications preferred by appellant No.1 herein

against its earlier order dated 15th December, 1997 in

O.A. Nos.920 and 921 of 1993, filed by the

respondents herein.

3. Pursuant to the applications filed in the year 1980,

appellant No.4 issued caste certificates to the

respondents declaring them to be belonging to

"Mahadeo Koli", a Scheduled Tribe. On the strength of

the caste certificates, the respondents appeared in the

competitive examination held by the Maharashtra

Public Service Commission, for recruitment to the post

of Clerk under the reserved category of Scheduled

2 Tribes. Being successful in the examination, they

were appointed to the said posts with effect from 21st

May, 1982.

4. However, vide letter dated 26th August, 1986, the

General Administrative Department of appellant No.1

asked the respondents to get their caste certificates

verified. They were required to appear before

appellant No.4 on 9th November, 1987 for the purpose

of reverification of their caste certificates. By order

dated 12th July, 1992, appellant No.4 cancelled the

caste certificates issued to the respondents. In

furtherance of the said order, on 5th January, 1993,

memorandums were issued to the respondents,

informing them that their services will stand

terminated on completion of one month from the date

of issue of the memorandums.

5. Being aggrieved by order dated 12th July, 1992, the

respondents preferred appeals before the Divisional

Commissioner, appellant No.3 herein, who vide order

3 dated 13th July, 1993, quashed and set aside the order

passed by appellant No.4, cancelling the caste

certificates. Thereafter, the respondents made

representations to appellant No.1 for reinstatement

but their requests were not acceded to.

6. Left with no other option, the respondents filed

original applications (O.A. Nos. 920 and 921 of 1993)

before the Tribunal, challenging the termination of

their services vide memorandums dated 5th January,

1993 with effect from 5th February, 1993. The

Tribunal, by a common order dated 15th December,

1997, held that in the light of order dated 13th July,

1993 passed by the Divisional Commissioner, setting

aside order dated 12th July, 1992 passed by appellant

No.4, the memorandums terminating the services of

the respondents, did not survive. Consequently, the

Tribunal set aside memorandums/orders dated 5th

January, 1993 and directed reinstatement of the

respondents, treating their absence from the date of

4 termination to the date of reinstatement as extra-

ordinary leave.

7. It appears that in the meanwhile the Caste Scrutiny

Committee, constituted in terms of the decision of this

Court in Kumari Madhuri Patil & Anr. Vs. Addl.

Commissioner, Tribal Development & Ors.1, with a

view to streamline the procedure for issuance of social

status certificates and their scrutiny, undertook the

exercise of reverification of the caste status of the

respondents. On enquiry, it opined that the claim of

the respondents as belonging to "Mahadeo Koli" was

not verifiable and, in fact, they had changed their

caste from "Mangela Koli" to "Mahadeo Koli" to benefit

from the concessions available to latter Scheduled

Tribe. Accordingly, the Caste Scrutiny Committee vide

their orders dated 27th March, 1996 and 23rd March,

1996 cancelled the caste certificates issued to

respondents No.1 and 2 respectively.

1 (1994) 6 SCC 241 5

8. At this juncture, it would be appropriate to note that

by virtue of a Government decision No. C.B.C.-

1494/Ad No. 236/ B.C.C-5 dated 7th December, 1994,

a Government Resolution was notified on 15th June,

1995 declaring "Mangela Koli" caste to be a "special

backward category", entitled to all special concessions,

with effect from 7th December, 1994, which were being

enjoyed by other notified castes and tribes. Para 4 of

the said Resolution, relevant for our purpose, reads as

follows:

"The reservation given to the above mentioned `Special Backward Category' will remain as a backlog for direct service recruitment and promotion. The principle of creamy layer will not apply to this category. The persons in this category who have prior to this on the basis of scheduled tribe certificate obtained admission in the government, semi government services got promotion they should not be removed from this promotion or service."

9. The parties herein are ad idem that with effect from 7th

December, 1994, "Mangela Koli", the caste the

6 respondents belong to as per the opinion of the Caste

Scrutiny Committee, had been treated as "special

backward category" and they were entitled to all the

privileges and protections enjoyed by other notified

castes/tribes. But the appellants dispute the

entitlement of the respondents to their reinstatement

to the posts held by them.

10. As noted supra, vide order dated 15th December, 1997,

though the Tribunal had directed reinstatement of the

respondents in service forthwith but the appellants

did not comply with the said order. Consequently, on

17th February, 1998, the respondents filed contempt

applications (No.11 and 12 of 1998) against the

appellants. Prior to that, on 13th January, 1998,

appellant No.1 and the Principal Secretary, General

Administrative Department had filed two review

applications (No.7 and 8 of 1998) for recall of order

dated 15th December, 1997, on the ground that the

orders passed by the Caste Scrutiny Committee dated

7 23rd and 27th March, 1996, rejecting respondents'

claim was not brought to the notice of the Tribunal

when the original applications were taken up for

hearing and the said order had been pronounced

thereon. It is, however, pertinent to note that in the

review applications there was no reference to

Government Resolution dated 15th June, 1995,

presumably for the reason that the services of the

respondents having been terminated prior to 7th

December, 1994, i.e. on 5th January, 1993, their cases

did not fall within the ambit of the said Government

Resolution. However, in their reply affidavits, the

respondents pleaded that they were entitled to the

benefit of the said Government Resolution. Accepting

the stand of the appellants, vide their common order

dated 3rd April, 1998, the Tribunal came to the

conclusion that in the light of the opinion of the Caste

Scrutiny Committee, no relief could be granted to the

respondents in the original applications. The Tribunal

also held that the services of the respondents having 8 been terminated on 5th January, 1993, the said

Government Resolution was of no avail to them.

Accordingly, the Tribunal vide order dated 3rd April,

1998, allowed the review applications; set aside its

order dated 15th December, 1997 (in O.A. Nos. 920

and 921 of 1993) and dismissed the contempt

applications preferred by the respondents.

11. Aggrieved, the respondents challenged Tribunal's

order dated 3rd April, 1998 in the High Court by

preferring a writ petition some time in the year 2001.

The High Court, by the impugned order, has set aside

the order dated 3rd April, 1998, passed by the Tribunal

in review applications and has confirmed Tribunal's

original order dated 15th December, 1997. The High

Court has observed that though services of the

respondents were terminated on 5th January, 1993,

because of cancellation of caste certificates by

appellant No.4 but respondents' appeal against the

said action had been accepted by the Divisional

9 Commissioner. Therefore, by virtue of the appellate

order, respondents' claim got accepted. Furthermore,

even the Tribunal, by its order dated 15th December,

1997 had directed the government to reinstate the

respondents in service forthwith and, therefore, on the

date of filing of review applications, the respondents

were deemed to be in service. Consequently, as a

natural corollary even otherwise the Government

Resolution, which was issued in 1995, had become

applicable and the protection granted under it became

available to the respondents. Hence this appeal.

12. Learned counsel appearing on behalf of the appellants

submitted that in the light of the reports of the Caste

Scrutiny Committee, dated 23rd and 27th March, 1996,

invalidating the caste claim of the respondents, the

High Court committed a grave error in setting aside

the order passed by the Tribunal in review

applications. Learned counsel contended, though

faintly, that the services of the respondents having

10 been terminated on 5th January, 1993, the protection

granted under Government Resolution dated 15th

June, 1995 applicable with effect from 7th December,

1994 was not available to the respondents. Lastly, it

was urged that in any event, having obtained the caste

certificates fraudulently, the respondents were not

entitled to back-wages for the period they had not

worked as clerks.

13. Per contra, learned counsel for the respondents

submitted that in the teeth of order dated 13th July,

1993 passed by the Divisional Commissioner,

accepting the claim of the respondents, and the said

order being in vogue as on 7th December, 1994, the

said Government Resolution was duly applicable in

their case. It was asserted that in view of the said

resolution, the services of the respondents could not

be terminated as admittedly, according to the Caste

Scrutiny Committee they belonged to "Mangela Koli"

caste which was also notified as a "special backward

11 category". Learned counsel contended that as there

was no allegation or finding against the respondents

that they had practised any fraud in obtaining the

caste certificates, they are entitled to full back-wages,

particularly when despite order dated 17th July, 1993

by the Divisional Commissioner and order dated 15th

December, 1997 by the Tribunal, the respondents

were not reinstated in service.

14. Thus, the moot question arising for consideration is as

to whether the protection granted under Government

Resolution dated 15th June, 1995 would be available

to the respondents?

15. In the light of the afore-noted factual matrix, we are of

the opinion that the answer to the question posed has

to be in the affirmative and, therefore, the decision of

the High Court, insofar as the applicability of the said

Government Resolution is concerned, cannot be

faulted. As noted above, on the passing of order dated

13th July, 1993 by the Divisional Commissioner,

12 quashing order dated 12th July, 1992 by the Tehsildar,

cancelling the caste certificate, the very foundation of

the memorandum dated 5th January, 1993

disappeared. Indubitably, the order of the Divisional

Commissioner was not questioned by the appellants

and, therefore, its natural consequence was that

memorandums dated 5th January, 1993 ought to have

been withdrawn by the authorities concerned and the

respondents reinstated in service. Since it did not

happen, the respondents had to approach the

Tribunal for appropriate relief which was granted on

15th December, 1997 and a direction was issued for

their reinstatement. No doubt, it is true that by the

time the Tribunal took up the original applications for

consideration, the Caste Scrutiny Committee had

rendered their opinion on 23/26th March, 1996 but

the same was not brought to the notice of the Tribunal

by either side when on 15th December, 1997,

respondents' original applications were decided in

their favour and their reinstatement in service was 13 ordered. But the fact remains that in the absence of

any other adverse report/opinion regarding the caste

of the respondents prior to 23/26th March, 1996 i.e.

the date of Committee's Report, they were deemed to

be in service as on 7th December, 1994, by virtue of

Commissioner's order, even if Tribunal's order, dated

15th December, 1997, is ignored. We feel that

appellant's inaction on respondents' representations

for reinstatement pursuant to appellate authority's

order dated 13th July, 1993 cannot be held out against

the respondents.

16. In our view, therefore, the High Court was justified in

holding that as on 7th December, 1994, the

respondents were deemed to be in service and,

therefore Government Resolution dated 15th June,

1995 was clearly applicable in their cases and they

were entitled to the protection thereunder.

Accordingly, we affirm the decision of the High Court

on the point.

14

17.The next question for determination is whether the

respondents are entitled to the back-wages for the

period they were out of service?

18.It is true that once the order of termination of service

of an employee is set aside, ordinarily the relief of

reinstatement is available to him. However, the

entitlement of an employee to get reinstated does not

necessarily result in payment of full or partial back-

wages, which is independent of reinstatement. While

dealing with the prayer of back-wages, factual

scenario, equity and good conscious, a number of

other factors, like the manner of selection; nature of

appointment; the period for which the employee has

worked with the employer etc.; have to be kept in view.

All these factors and circumstances are illustrative

and no precise or abstract formula can be laid down

as to under what circumstances full or partial back-

wages should be awarded. It depends upon the facts

and circumstances of the each case.

15

19. In General Manager, Haryana Roadways Vs.

Rudhan Singh2 a three-Judge Bench of this Court

has observed that there cannot be a strait jacket

formula for awarding relief of back-wages and an order

of back-wages should not be passed in a mechanical

manner. It has been held that a host of factors, like

the manner and method of selection and appointment;

the nature of appointment, namely, whether ad hoc,

short term, daily wage, temporary or permanent in

character; and the length of service, which the

workman had rendered with the employer are required

to be taken into consideration before passing any

order for award of back-wages. [See: also Haryana

State Electronics Development Corpn. Ltd. Vs.

Mamni3; U.P. State Brassware Corpn. Ltd. & Anr.

Vs. Uday Narain Pandey4 and U.P. SRTC Vs. Mitthu

Singh 5]

2 (2005) 5 SCC 591 3 (2006) 9 SCC 434 4 (2006) 1 SCC 479 5 (2006) 7 SCC 180 16

20. Having considered the matter on the touchstone of the

afore-noted broad principles, we are of the opinion

that the facts in hand do not warrant payment of

back-wages to the respondents. In the instant case,

though there is no allegation against the respondents

that originally the caste certificates were obtained by

them fraudulently and, in fact, none of the authorities

have recorded any findings to that effect, yet we feel

that non-disclosure of the Caste Scrutiny Committee's

Report dated 23/27th March, 1996 by the respondents

before the Tribunal is tantamount to suppression of

material and vital information from the Court,

bordering fraud.

21. In S.P. Chengalvaraya Naidu (Dead) By LRs. Vs.

Jagannath (Dead) By LRs. & Ors.6, this Court had

observed that a litigant, who approaches the court, is

bound to produce all the documents which are

relevant to the litigation and if he withholds a vital

document in order to gain advantage on the other side 6 (1994) 1 SCC 1 17 then he would he guilty of playing fraud on the court

as well as on the opposite party.

22. Similarly, in Ram Preeti Yadav Vs. U.P. Board of

High School and Intermediate Education & Ors.7,

it was observed that fraud is a conduct either by letter

or words, which induces the other person, or authority

to take a definite determinative stand as a response to

the conduct of former either by words or letter.

Referring to Derry Vs. Peek8, it was said that although

negligence is not fraud but it can be evidence on

fraud.

23. However, having regard to the peculiar circumstances

of the case, namely, the factum of issue of

Government Resolution dated 15th June, 1995 in the

interregnum, which was in favour of the respondents

insofar as their caste claim for reservation was

concerned, we do not propose to delve on the issue of

their conduct any further. Suffice it to observe that

7 (2003) 8 SCC 311 8 (1889) 14 AC 337 18 there was no good reason for the respondents to

withhold the opinion of Caste Scrutiny Committee

from the Tribunal, when their original applications

were taken up for hearing in December, 1997. We are

convinced that this lapse on their part, coupled with

the fact that there was inordinate delay of almost three

years in challenging the order of Tribunal dated 3rd

April, 1998 passed in appellants' review applications,

disentitles them at least from their claim for back-

wages. Accordingly, we set aside the order of the High

Court to the extent it directs treatment of respondents'

absence from the date of termination to the date of

reinstatement as extra-ordinary leave.

24.Consequently, for the reasons afore-stated, the

appeal is partly allowed to the extent indicated above.

However, there will be no order as to costs.

...........................................J. (C.K. THAKKER)

19 ...........................................J. (D.K. JAIN) NEW DELHI;

JULY 11, 2008.

20