Service Law – False representation and appointment to a 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 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 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 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 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.
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 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. 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 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 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 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 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-AB, E; 469-A-B]
2. It was in the peculiar background, which was noted by this Court, that the protection of services was granted in Nimje. Again, it is necessary to note that this Court has noted that the common judgment of the High Court dated 1st November, 2012 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, 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 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 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 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] 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 Reserve Bank of India (Nimje) (2019) 12 SCC 639 – referred to.
Arun Sonone v. State of Maharashtra 2015 (1) Mh LJ
457 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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