Holding

The Supreme Court held that the High Court's order was unsustainable, did not constitute res judicata, and that the appellant's appointment must be treated as a general‑category posting, denying any Scheduled Tribe benefits.

Summary

The appellant, a co‑employee of Mahesh Deorao Bhivapurkar, challenged a High Court order that had declared Bhivapurkar a member of the Halba Scheduled Tribe and directed the employer to accept his caste certificate. The Supreme Court held that the High Court's decision was unsustainable, did not create res judicata, and was rendered on a wrong factual premise, as the Scrutiny Committee had correctly found Bhivapurkar to belong to the Koshti caste, not the Halba tribe. The Court clarified that a person must belong to a tribe before claiming Scheduled Tribe status under Article 342, and that any benefit obtained by fraud on the Constitution is void. It also ruled that the Special Leave Petition filed by the appellant was maintainable as a public‑law litigation, despite his private interest, and that the appointment of the appellant must be treated as a general‑category posting, denying any Scheduled Tribe benefits. Consequently, the appeal was allowed and the High Court order set aside.

Issues considered

Whether the High Court order of 11.08.1988 operates as res judicata to preclude fresh consideration by the Caste Scrutiny Committee and the employer.
Whether a person belonging to the Koshti caste can be deemed a member of the Halba Scheduled Tribe under Article 342 and the Scheduled Tribes Order, 1950.
Whether the Special Leave Petition filed by a co‑employee has locus standi and can be treated as public‑law litigation.
Whether the High Court exceeded its jurisdiction by re‑examining factual findings of the statutory Scrutiny Committee.
Whether obtaining Scheduled Tribe benefits through a false claim constitutes fraud on the Constitution, rendering the order a nullity.

Legislation cited

Constitution of Indias. Article 142, s. Article 226, s. Article 227, s. Article 32, s. Article 342, s. Article 371D
Constitution (Scheduled Tribes) Order, 1950

Subjects

Scheduled TribeArticle 342Res JudicataCaste CertificateFraud on ConstitutionLocus StandiSpecial Leave PetitionPublic Law LitigationArticle 142Employment ReservationCaste Scrutiny Committee

Judgment

[2008] 12 S.C.R. 992 l-
'

RAJU RAMSING VASAVE
r-
A
II.
MAHESH DEORAO BHIVAPURKAR & ORS.
(Civil Appeal No. 5308 of 2008)
AUGUST 29, 2008
B
[S.B. SINHA AND AFTAB ALAM, JJ.]
\.... ~

Constitution of India, 1950 - Article 342 - Claim of be-
longing to 'Ha Iba' tribe - Rejected by Scheduled Tribe Caste :-.._
c Scrutiny Committee - Allowed by High Court in writ petition
relying on its decision passed in another case - Employer of
the claimant demanding Caste Validity Certificate from the
~
claimant - The Scrutiny Committee refusing grant of the Ger-
tificate - Interlocutory application filed in the disposed of writ
petition seeking direction to the Committee to issue the Ger-
D
tificate - High Court allowing the application - Appeal by the
colleague of the claimant affected by the order in the app/ica-
tion - Held: Decision of High Court is unsustainable - Order
of High Court in the writ petition was on a wrong premise with-
out analyzing factual aspects of the case of the claimant -
E Hence did not operate as res-judicata so as to disable the
Committee as well as the employer of the claimant to con-
sider the case of the claimant on merits afresh - Advantage
obtained in violation of constitutional scheme would be con-
sidered as constitutional fraud - The claimant's application
F challenging the order of the Committee was not maintainable I
!<--
as the cause of action therefor arose subsequently - A sepa-
rate Writ Petition should have been filed - Constitution (Sched-
uled tribes) C}rder, 1950.
-Locus Standi - Validity of appointment etc. on the basis
G
of Caste Certificate issued by a Committee - Locus to cha/-
Jenge - Held: Such matter is a matter between the employer
and employee - Challenge to the same by a person having
private interest is ordinarily not permissible - But when the
\-

H 992
RAJU RAMSING VASAVE v. MAHESH DEORAO 993
BHIVAPURKAR & ORS.
__,
·, matter is of grave importance, where fraud has been commit- A
ted on the Constitution, this Court can interfere treating such
petition as 'Public Law Litigation' in exercise of its power under
Article 142 of Constitution - Constitution of India, 1950 - Ar-
tic/e 142.
Respondent No. 1 claimed to be belonging to 'Halba' B
~ ....J
Tribe notified in terms of Constitution (Scheduled Tribes)
Order, 1950., The claim was adjudicated by Scrutiny Com-
mittee and it held the same invalid and cancelled the Caste
Certificate issued by the Executive Magistrate. He filed a
writ petition claiming the said, benefit. High Court by its. c
judgment dated 11.8.1988, allowed his claim relying on
the judgment passed in Mi/ind Sharad Ka/ware and Ors. vs.
State of Maharashtra and Ors. 1987 Mah. LJ. 572 wherein it
was held by High Court that 'Halba Koshti' is a sub-divi-
sion of m.ain tribe 'Halba/Halbi'. In appeal against the or- D
der of the High Court in Milind's case this Court has passed
.\ a limited order that the benefit of ST was available for ad-
mission purpose. Thereafter the matter was referred to
scheduled Tribe Caste Certificate Scrutiny Committee,
which refused to grant a certificate in favour of respon- E
dent No. 1 by its order passed in September, 1997. In ·the
Select List for the post of Field Officers, on which respon-
dent No. 1 was appointed, against the names of ST can-
didates it was stated that their services would be contin-
ued subject to submission of Caste Validity Certificate. F
-.>I, The employer also issued a Circular asking the ST candi-
dates to submit the Certificate. In 2006, respondent No. 1
filed an application in his disposed of writ petition, im-
• pleading his employer as a party in the application, seek-
ing direction to consider him as ST candidate and seek-
G
ing direction for issuance of Caste Validity Certificate. High
Court allowing the application held that respondent No. 1
belongs to Scheduled Tribe-Halba by virtue of the order
passed in the order dated 11.8.1988; and that the produc-
tion of the Certificate issued by the Executive Magistrate
H
994 SUPREME COURT REPORTS [2008] 12 S.C.R.

A . would be sufficient compliance with the Circular seeking
Caste Validity Certificate. Hence the present appeal by the
appellant (the person wt:ro-was placed below respondent
No. 1 in the Select list). Appellant alsofiled Special Leave
Petition. against the order dated 11.8.1988 which was dis-
B missed by this Court on the ground of de~ay.
Allowing the appeal, the Court
HELD·: 1.1 A special leave petition ordinarily would
not have been entertained at the instance of the appel- r
c lant. Validity of appointment or otherwise on the basis of
a caste certificate granted by a committee is ordinarily a
matter between the employer and the employee. This
Court, however, when a question is raised, can take cog-
nizance of a matter of such a grave importance suo motu.
It may not treat the Special Leave Petition as a Public In-
0
terest Litigation, but, as a Public Law Litigation. It is, in a
proceeding of that nature, permissible for the court to +
make a detailed enquiry with regard to the broader as-
pects of the matter although it was initiated at the instance
of a person having a private interest. A deeper scrutiny
E can be made so as to enable the court to find out as to
whether a party to a /is is guilty of commission of fraud on
the Constitution. If such an enquiry subserves the greater
public interest and has a far reaching effect on the soci-
ety, this Court will not shirk its responsibilities from do-
F ing so. [Para 31] [1022,F-G; 1023,A-B] .L
1.2 Apart from the general power of the superior
courts vested in it under Article 226 or Article 32 of the
Constitution of India, this Court is bestowed with a greater
G responsibility by the makers of the Constitution in terms
of Article 142 of the Constitution. Decisions are g~lore
wherein this Court unhesitatingly exercised such juris-
diction to resort to the creative interpretation to arrive at a
just result in regard to the societal and/ or public interest.
H It is a case of that nature. This Court, however, while lay-
RAJU RAMSING VASAVE v. MAHESH DEORAO 995
BHIVAPURKAR & ORS.
_........,
ing down the law suitably mould the relief so as to do A
-#
. complete justice between the parties. [Paras 31 and 32]
[1023,C-D; 1023,E]
2.1 The decision of the High Court ex facie is unsus-
tainable. Invoking jurisdiction under Article 142 of the Con-
stitution of India, keeping in view the long history of the case B

- ..._, and its backdrop, whereas it would not be proper to disturb
the very appointl'J!ent of the appellant but it must be declared
that his appointment shall be treated to be that of a general
category in the matter of promotion or otherwise. He shall
not be-eligible to get any benefit as a member of a Sched- c
uled Tribe. [Paras 26 and 35] [1019,A; 1025,F-G]
Sandeep Subhash Parate v. State of Maharashtra and Ors.
2006 (7) SCC 501; Union of India v. Dattatray Slo Namdeo
' Mendhekar and Ors. 2008 (4) SCC 612 - referred to.
D
2.2 Where factual foundation arrived at by a commit-
.i
tee authorised in this behalf concludes that a person is
., not a member of the Scheduled Tribe would remain op-
if erative unless set aside by a superior court. The judgment
of the High Court in favour of the respondent No. 1 was E
rendered on a wrong premise. The claim of the respon-
dents may be that he belonged to the Halba tribe but,
therefor, no factual foundation was placed before the High .
Court. The High Court relied solely on its earlier decision
to hold that Koshti would come within the purview of the F
Scheduled Tribe of Halba or Ha/bi. The decision was ren-
-.i.
dered in 1988. The records maintained by the school
where the respondent studied were not placed before the
-; High Court. Only when the Caste Scrutiny Committee, a

• statutory committee, proceeded to enquire into the mat-
ter, the truth came out. [Para 20] [1015,B-D]
2.3 Though an opinion formed by the Committee as
G

regards the caste of the near relative of the applicant
would not be wholly irrelevant, but, at the same time, it
.must be pointed out that only because, by mistake or oth- H
996 SUPREME COURT REPORTS [2008] 12 S.C.R.

,.____
A erwise, a member of his family had been declared to be
·4'
belonging to a member of the Scheduled Tribe, the same
by itself would not be conclusive in nature so as to bind
another Committee while examining the case of other mem-
ber-s of the family at some details. If it is found that in grant-
B ing a certificate in favour of a member of a family, vital evi-
dences had been ignored, it would be open to the Commit-
\......
tee to arrive at a different finding. [Para 20] [1015,E-G] ~---

2.4 The order dated 11.08.1988 would not operate as
a res judicata so as to disable from considering the merit
c of the case of the respondent No. 1 by the State of
Maharashtra or Maharashtra Pollution Control Board
afresh. A decision rendered without jurisdiction being a
nullity, the principle of res judicata shall not apply. If a fraud ~
~
has been committed on the court, no benefit therefrom
D can be claimed on the basis of thereof or otherwise. [Paras
22, 23 and 26] [1019,A; 1016,F]
Williams V. Lourdusamy and Anr. 2008 (5) sec 647; +- ~

\.
Chief Justice of Andhra Pradesh and Ors. v. L. VA. Dixitulu ;-
1979 (2) SCC ·34; Ashok Leyland Ltd. v. State of Tamil Nadu
E and Anr. 2004 (3) SCC 1; Ganpatbhai Mahijibhai Solanki v.
State of Gujarat and Ors. 2008 (3) SCC 556; K. D. Sharma v.
Steel Authority of India Ltd. and Ors. 2008 (10) SCALE 227;
State of Maharashtra and Ors. v. Ravi Prakash Babula/sing
Parmar and Anr. 2007 (1) SCC 80; State of Maharashtra and
F Ors. v. Sanjay K. Nimje 2007(2) SCALE 214 - relied on.
'
·""--
Dwarka Prasad Agarwal (0) By LRs. and Anr. v. B.D.
Agarwal and Ors. 2003(6) SCC 230; Union of India v. Pramod
Gupta 2005 (12) SCC 1; National Institute of Technology and
Ors. v. Niraj Kumar Singh 2007 (2) SCC 481; Addi. General
G
Manager - Human Resource, Bharat Heavy Electricals Ltd.
v. Suresh Ramkrishna Burde 2007 (5) SCC 336 - referred
to.
2.5 The tribe "Halba" finds place in Constitution
H (Scheduled Tribes) Order, 1950. "Koshtl', however, in the
RAJU RAMSING VASAVE v. MAHESH DEORAO 997
BHIVAPURKAR & ORS.

State of Maharashtra comes under 'special backward A
class'. Their occupation may be the same but it is well-
settled that before a person can obtain a declaration that
he is a· member of a scheduled tribe, he must be a member
of a tribe. When an advantage is obtained by a person in
violation of the constitutional scheme, a constitutional IB
fraud is committed. [Paras 16 and 21] (1011,D; 1015, H]
Nityanand Sharma v. State of Bihar 1996 (3) SCC 576. -
referred to. .
2.6 The Parliament alone can amend the law and the 0
schedule for the purpose of including or excluding there-
from a tribe or tribal community or part of or group within
the same in the State, district or region and the declaration
made by the Parliament is conclusive. For the said purpose,
the court does not have any jurisdiction so as to enable it to
0
substitute any caste and tribe. [Para 16] (1011,E-F]
Kumari Madhuri Patil and Anr. v. Addi. Commissioner,
Tribal Development and Ors. 1994 (6) SCC 241 - referred
to.
2.7 Dismissal of Special Leave Petition against or- E
der of the High Court dated 11.8.1988 cannot be said to
have given the stamp of finality by this Court as the same
. was dismissed on the ground of delay alone. That apart,
the appellant herein is affected by the impugned judgment
of the High Court dated 26.06.2006. When the order dated F
11.08.1988 was passed, the judgment of the High Court
in Milind's case was prevailing. Appellant was not in pic-
ture at that point of time. [Para 29] (1021,C-D]
2.8 In a disposed of writ petition, a separate applica- G
tion was not maintainable, cause of action wherefor arose
subsequently. The Central Government had issued
Circulars. The Maharashtra Pollution Control Board had
also issued Circulars. Appellant's claim for grant of cer-
tificate was rejected in the year 1997. If the respondent H
998 SUPREME COURT REPORTS [2008] 12 S.C.R.

I--
A No. 1 was aggrieved thereby, h~ could have filed an ap-
propriate writ petition before the High Court immediately
thereafter. He did not choose to do so. Only when the
question of grant of promotion arose, he sought to get
his claim of being promoted as a member of the Sched-
B uled Tribe. It was in that sense, it was obligatory on the
part of the respondent No. 1 to question the validity of the \.....
Circulars issued by the Maharashtra Pollution Control
. .
Board. A separate writ petition therefor
.
should have been
filed. The Maharashtr~ Pollution Control Board as also
c the Caste Scrutiny Committee was required to be im-
pleaded therein.' When the order dated 11.08.1988 was
passed-by the High Court, no Caste Scrutiny Committee
existed. [Para 29] [1021,E-H; 1022,A-B]
Case Law Reference
.-
D 1996 (3) sec 576 Referred to. Para 16 ~

1994 (6) sec 241 Referred to. Para 19
+
2008 (5) sec 647 Relied on. Para 22
C-
1919 (2) sec 34 Relied on. Para 24
E
2004 (3) sec 1 Relied on. Para 24 t
2003(6) sec 230 Referred to. Para 24
2005 (12) s~c 1 Referred to. Para 24
2001 (2) sec 481 Referred to. Para 24
F I

2-008 (3) sec 556 Relied on. Para 25 ,!..-

2008 (10) SCALE 227 Relied on. Para 25
}
2001 (1) sec so Relied on. Para 27 '
G 2007 (2) SCALE 214 Relied on. Para 27
<c-
2001 (5) sec 336 Referred to. Para 27 ~

2008 (7) SCALE 363 Relied on. Para 32
2006 (7) sec 501 Referred to. Para 33
(
H 2008 (4) sec 612 Referred to. Para 34 ,,
RAJU RAMSING VASAVE v. MAHESH DEORAO 999
BHIVAPURKAR & ORS. [S.S. SINHA, J:]

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5308 A
of 2008
From the final Judgment and Order dated 26.06.2006 of.
the High Court of Judicature at Bombay Bench at Nagpur, in
Civil Application No. 2483 of 2006 in Writ Petition No. 1347 of

- 1988
Gaurav Agarwal and Venkateswara Rao for the Appellant.
B

A.V. Savant, Manish Pitale, Chander Shekhar Ashri,
Mukesh Verma, Vivek Vishnoi, Yash Pal Dhingra, Arun
Pedenekar, Sanjay Kharde and Asha Gopalan Nair for the C
Respondents.
The Judgment of the Court was delivered by
5.8. SINHA, J: 1. Leave granted.
D
2. Whether a co-employee of lhe respondent No. 1 who
was working as a Field Officer with the Maharashtra Pollution
Control Board can maintain an independent special leave
questioning the judgment of a High Court setting aside an order
of the Schedule Tribe Caste Certificate Scrutiny Committee is E
the question involved herein.
3. Before, however, we advert thereto, we may notice the
admitted factual matrix of the matter.
Respondent No. 1 claims himself to be a member of
Schedule Tribe being belonging to "Halba" tribe notified in terms F
of the Constitution (Scheduled Tribes) Order, 1950. Respondent
No. 1 and his family members are highly educated. The caste
of his father in the school records was shown as "Koshti"
whereas the caste of his uncle was also shown as "Koshti"
which was, however, later on corrected as "Halba''. One of his G
cousins Ku. Sandhya Manohar Bhivapurkar, daughter of the
uncle of the respondent No. 1, was also granted a certificate as
belonging to the "Halba" community.
4. An intricate question as to whether "Koshti" is a sub- 1-1
1000 SUPREME COURT REPORTS [2008] 12 S.C.R.

A caste of "Halba" or "Halbi" came up for consideration before a
Division Bench of the Bombay High Court in Mi/ind Sharad
Katware and others v. State of Maharashtra and others [1987
Mh. L.J. 572]. In the said judgment, the Division Bench inter alia
referred to the report of a Joint Committee headed by Dr. A.K. \
B Chandra which had been submitted to the Parliament on \
17 .11.1969 to opine: \-4"
" ... It does appear from the report that representation sent
to the Joint Committee by Halba Koshti Samaj was
circulated to the members and that the Committee had
C visited Nagpur. However, it does not appear that either
evidence is taken on the matter as has been done in the
cases of several representations about other Committees
or that even without that a conclusion is reached that Halba
- Koshti does not form part and parcel of Tribe "Halba'
D Halbi". It is thU'S clear that the enquiries undertaken by
several authorities and Courts so far and the enquiry which
we are making now in these petitions do not amount to +-
amending the list in any manner whatsoever."
Various authorities and the purported custom of the Halba-
E Koshti had also been taken into consideration by the court to
hold:
"(1) It is permissible to enquire whether any sub-division
of a Tribe - though not mentioned in the Act - is a
F part and parcel of the Tribe mentioned therein.
...._
(2) The decisions rendered by the Courts from time to
time about Halba Koshtis being part and parcel of
"Halba/ Halbi" tribe are binding on the government
and authorities constituted by it.
G .....
(3) The scope of enquiry in cases relating to students' .
admissions before 8th March 1985 was limited to
points mentioned in the circular dated 31st July 1981.

(4) It is impermissible to take inconsistent stand about
H a tribe in cases of near relatives.
RAJU RAMSiNG VASAVE v. MAHESH DEORAO 1001
BHIVAPURKAR & ORS. [S.B. SINHA, J:]

(5) Circulars dated 31 51 July 1981 and 23rd September A
1983 are valid.
(6) 'Halba Koshti' is a sub-division of main tribe "Halba/
Halbi" as per entry No. 19 in the Act as applied to
Maharashtra.
B
(7) Every Koshti is not Halba Koshti."
The State of Maharashtra came up in appeal before this
Court thereagainst. A limited order of stay was passed directing:
"There will be no order of stay of the judgment of the High c
Court but subject to the condition that Halba Koshtis will
be entitled to admission to the seats reserved for
Scheduled Tribes on the basis of High Court judgment,
provided the authorities granted admission are satisfied
that they or their parents had income of less than Rs.
0
72001- per annum."
4. Indisputably, however, the respondent No. 1 also filed
a writ petition claiming the said benefit which was marked a$
W.P. No. 1347 of 1988. The Division Bench of the Bombay
High Court following its decision in Mi/ind Sharad Katware E "
(supra) allowed the said writ petition by an order dated
11.08.1988 stating:
"1. This petition relates to the caste claim Halba.
Petitioner's father's real elder brother has been
adjudicated as belonging to Scheduled Tribe. F

2. In the case of Milind Sharad Katware Vs. State of
Maharashtra (1987 Mah. Law Journal 572), we have
taken a view that it is impermissible to take
inconsistent view between the cases of near relatives G
in such matters. Hence the impugned orders are
quashed and set aside. The petitioner is declared to
be belonging to Scheduled Tribe - Halba."

5. It is of some significance to note that the Government
of Maharashtra appointed an Expert Committee known a? H
1002 SUPREME COURT REPORTS [2008] 12 S.C.R.

A Ferriera Committee. It submitted its report in the year 1985. In
its report, the Expert Committee stated:
"The Ha Iba/ Halbi Tribe, as per the Constitution (Scheduled
Tribes) Order, (1950) read with Part - IX of the second
schedu.le to the Scheduled Castes, Scheduled Tribes Order
B (Amendment) Act (1976) has been declared a.scheduled
Tribe in the State of Maharashtra and has appeared at Sr.
No. 19 in the schedule. The members of the caste known
as Koshti/ Halba - Koshti, residing in particular in the
Vidarbha areas, claim that they belong to the said Halba/
c Halbi tribe ~nd are entitled to obtain caste certificates as
belonging to the Halba/ Halbi scheduled Tribe. Their
· contention is that the word "Koshti" is indicative of their
traditional occupation, namely, weaving and it is not
connected with the caste. Therefore, they should get all
D the facilities and concessions extended to the Scheduled
Tribes. On the other hand, the Halba/ Halbi tribals,
particularly of the Bhandara and Gadchiroli districts and
their tribal representatives in the Legislative Assembly,
Maharashtra, represented to the Government that persons
E. belonging to the Halba/ Koshti/ Koshti caste from the
Vidarbha region claim to belong to the Halba/ Halbi tribe
in order to secure concessions sanctioned for the
scheduled Tribes. The Halba Koshtis/ Koshtis do not
belong to the scheduled Tribes."
F Its conclusions were:
"9.1-The expert committee appointed by the Government
of Maharashtra to examine the Halba/ Halba Koshti
problem undertook a careful study of the s~condary
literature, initiated filed investigations and interviewed a
G
number of Koshtis, a Halba Koshtis and Halba Tribals.
Consequently, it has come to the conclusion that the .Koshtis
are a caste, the Halba Koshtis a sub-caste of the Koshti
caste and the Halbas a Scheduled Tribe. The Halba tribais
have no relations of identity with the Halba Koshti sub-
H
RAJU RAMSING VASAVE v. MAHESH DEORAO 1003
BHIVAPURKAR & ORS. [S.B. SINHA, J:]

caste of the Vidarbha Region, except for a partially A
common nomenclature.
9.2 More specifically, the Committee has come to the
conclusion that the Koshtis and Halba Koshtis are not
characaterised by primitive traits, a relatively distinct
culture, culture, culturally and territorially demarcated areas 8
of habitation relative shyness of contact with the community
at large and a high degree of backwardness whereas the
Halba/ Halbi Scheduled Tribe is indeed so characterised.
*** *** *** c
9.12 In brief, an examination of the secondary source from
the year 1827 to the year 1985, a review of the field data
and an evaluation of the information accruing from
interviews makes it clear that the Halba Koshtis are a
caste with a specific occupation or a sub-caste of the D
Koshti caste whose traditional occupation is weaving. In
"1 the census records the Halbas have been classified as a
tribe and the Koshtis as a caste. Furthermore, the facts
overwhelmingly indicate that the Koshtis are concentrated
in cities and·towns like Nagpur, Bhandara Umred and so E
on, whereas the Halba tribals are largely located in the
hilly and forest areas of Bhandara and Gadchiroli districts.
Thus with the weight of evidence before it, the Expert
Committee concludes that there are no decisive social,
ethnic, linguistic, religious and other affinities between the F
Halba Koshi sub-caste of the Koshti caste, on the one
hand and the Halba tribe in Maharashtra, on the other."
6. The case of the respondent No. 1 was referred to the
Schedule Tribe Certificate Scrutiny Committee. The Committee G
held:
"Thereafter the Scrutiny Committee decided to conduct
school enquiry of the case and approached the primary
school of the candidate's father i.e. Mangalwari Prathmik
H
1004 SUPREME COURT REPORTS [2008] 12 S.C.R.

,,,___
A Shala, Umrer, District Nagpur. In the enquiry with the school
it was revealed that the father of the candidate had studied
in this school from 1946 to 1950 and his caste has been
recorded as Koshti, at Sr. No. 3100. This shows that the
1

caste of the candidate's father was recorded as Koshti.
B This is pretty old record pertaining to period prior to the
passing of the Constitution Scheduled Tribe Order 1950
and obviously carries more evidential value than any other
subsequent evidence because there was no provocation
at that time for rioting wrong caste claims. Thus, from an
c important documentary evidence it has been established
that the caste of the candidate's father is Koshti. The caste ,
of the father determines the caste of his progency in Hindu
society. When it has proved that caste of the candidate's
father is Koshti, the caste of the candidate is bound to be
Koshti and he cannot claim to be belonging to Halba,
D
Scheduled Tribe."
The Committee considered all the documents including ....
the school registers. It went into the question as to whether the .>

respondent No. 1 followed the traits of the members of the
E Scheduled Tribe to hold: ...
"After considering all the aforesaid documents and in
exercise of the powers vested in it, the Scrutiny Committee
has come to the conclusion that Shri Mahesh Deorao
Bhivapurkar does not belong to Halba Scheduled Tribe
F and as such his claim towards the same is held invalid.
..,___
He belongs to Koshti caste which comes under other
Backward Classes and as such the caste certificate of
his belonging to Halba, Scheduled Tribe granted by the
Executive Magistrate, Nagpur vide NO. 235/MEC-81/87-
G 88 dated 18.8.1987 is hereby cancelled."
7. The matter was thereafter referred to the Caste Scrutiny
Committee. However, relying on or on the basis of the decision
of the High Court dated 11.03.1988 in Writ Petition No. 1347
of 1988, the Scheduled Tribe Caste Scrutiny Committee, Pune
H
RAJU RAMSING VAS;,\JE v. MAHESH DEORAO 1005
BHIVAPURKAR & ORS. [S.B. SINHA, J:]
-1 A
refused tu grant a certificate in his favour by an order dated
18.09.1997, stating:
"Your claim towards Halba has been adjudicated by
Scrutiny Committee on 24.1.1988 and held invalid against
this decision you have filed Writ Petition No. 1347 of 1988
and the same is allowed by High Court on 11.8.1988. The B
Hon'ble High Court quashed and set aside the order of
Director, Tribunal Research and Training Institute, Pune
by referring the similar case of Milind Sharad Katware Vs.
State of Maharashtra. As per the S.C. Interim order the
benefit of ST is available for the candidates for the c '

.education purpose only. Therefore, there is no question to
grant validity only on the basis of limited orders."
The said order appears to have been passed on a wrong
premise that this Court in the case of Mi/ind Sharad Katware
D
(supra) had passed an interim order. Although the said order
was passed on a wrong premise. Its validity was not questioned.
-~

8. In Mi/ind Sharad Katware (supra), this Court by a
judgment and order dated 28.11.2000 (hereinafter referred to
as "Milind") held: E
"1. It is not at all permissible to hold any inquiry or let in
any evidence to decide or declare that any tribe or
tribal community or part of or group within any tribe
or tribal community is included in the general name
even though it is not specifically mentioned in the F
entry concerned in the Constitution (Scheduled
. Tribes) Order, 1950.
2. The Scheduled Tribes Order must be read as it is. It
is not even permissible to say that a tribe, sub-tribe,
G
part of or group of any tribe or tribal community is
synonymous to the one mentioned in the Scheduled
Tribes Order if they are not so specifically mentioned
in it.

3. A notification issued under clause (1) of Article 342, H
1006 SUPREME COURT REPORTS [2008] 12 S.C.R.

A specifying Scheduled Tribes, can be amended only
by law to be made by Parliament. In other words, any
tribe or tribal community or part of or group within
any tribe can be included or excluded from the list of··
Scheduled Tribes issued under clause (1) of Article
B 342 only by Parliament by law and by no other
authority."
However, it was directed:
"38. Respondent 1 joined the medical course for the year
c 1985-86. Almost 15 years have passed by now. We are
told he has already completed the course and may be he
is practising as a doctor. In this view and at this length of
time it is for nobody's benefit to annul his admission. Huge
amount is spent on each candidate for completion of
medical course. No doubt, one Scheduled Tribe candidate
D
was deprived of joining medical course by the admission
given to Respondent 1. If any action is taken against
Respondent 1, it may lead to depriving the service of a
doctor to the society on whom public money has already
been spent. In these circumstances, this judgment shall
E not affect the degree obtained by him and his practising
as a doctor. But we make it clear that he cannot claim to
belong to the Scheduled Tribe covered by the Scheduled
Tribes Order. In other words, he cannot take advantage of
the Scheduled Tribes Order any further or for any other
F constitutional purpose. Having regard to the passage of
time, in the given circumstances, including interim orders
passed by this Court in SLP (C) No. 16372 of 1985 and
other related matters, we make it clear that the admissions
and appointments that have become final, shall remain
G unaffected by this judgment."
9. Appellant and the respondent No. 1 together with two
others were appointed as Field Officers. Whereas the
respondent No. 1 was 'placed at SI. No. 69 of the Select List,
the appellant was placed at SI. No. 73 thereof. As against the
H

ffr
RAJU RAMSING VASAVE v. MAHESH DEORAO 1007
BHIVAPURKAR & ORS. [S.S. SINHA, J:]

names of the S.T. candidates, however, it was stated: A
"Services of these candidates will be continued subject to
"Validity Certificate"
10. However, we may notice that an application in the
disposed of writ petition bearing No. 134 7 of 1988 was filed by B
the respondent No. 1 in 2006; the prayers made wherein read
as under:
"i) this Hon'ble High Court may be pleased to issue
appropriate direction to the respondent No. 3 to issue
caste validity certificate pursuant to the judgment C
dated 11.8.1988 in Writ Petition No. 1347of1988 in
the interest of justice;
ii) direct the respondent No. 4 to consider the petitioner
as backward class candidate belonging to Halba
0
Scheduled Tribe, as per declaration of the Hon'ble
High court as and when promotion.to the candidates
of Scheduled Tribe category is ordered/ effected, till
the point of time of' issue of caste validity certificate
by the Caste Certificate Scrutiny Committee i.e. E
respondent No. 3 as he is topping the list of
Scheduled Tribe employee in the cadre of Field
Officer as per circular letter dated 3.12.2002."
11. It is of some significance to notice that in the original
writ petition, the employer was not a party. In the interlocutory F
application, however, it was impleaded as a party.

12. Before we advert to the impugned judgment of the
High Court, we may notice that the Maharashtra Pollution Control
Board issued a circular on or about 14.12.2004 directing:
G
"As per aforementioned referred letter, it is communicated
to you about submission of Scheduled Tribe Officer/
Employee Caste Validity Certificate. And those officers/
employees who are not having caste validity certificate
their record pertaining to Caste Certificate is to be sent to H
1008 SUPREME COURT REPORTS [2008] 12 S.C.R.

r-'-·
A verification committee. But the office heads has not looked
into the matter specifically and acted accordingly. You are
communicated once again vide this letter that those officer/
employee in your office which are ST there caste validity
certificate is to be submitted to establishment branch
B without fail or regarding his submission and validity
certificate the report of action taken at your level is to be
communicated immediately. ......... '

Thereafter officer/ employee (Backward class) Scheduled
Caste, Scheduled Tribe, Vimukta Jati, Nomadic Tribe,
c Other Backward Special Backward etc. in the cadre such
officer/ employee are required to submit their caste validity
certificate to this office immediately.
The officer/ employee who has not submitted validity
certificate or not having validity certificate is required to
D
submit the record through office to the caste scrutiny
committee and the report'of the same should be furnished
so that all the backward class officer/ employee's validity
certificate can be attached to their service book.

E In this matter all office head, HQ controlling officer are
hereby informed that they have to look into the matter
specifically and take action so early and submit the report
to this office immediately.
Backward Class officer/ employees cannot be considered
F for the promotion without submission of validity certificate. I
~-
This has to be brought to the notice of respective
candidates."
By reason of the impugned judgment, the High Court held:
G (i) It was not necessary to implead the Maharashtra
State Pollution Control Board as a party in the
application.
(ii) The order dated 11.08.1988 passed in the Writ
Petition No. 134 7 of 1988 attained finality whereby
H
RAJU RAMSING VASAVE v. MAHESH DEORAO 1009
BHIVAPURKAR & ORS. [S.B. SINHA, J:]

the respondent No. 1 had been declared to be A
belonging to the Schedule Tribe "Halba".
(iii) The decision of the Caste Scrutiny Committee
declining grant of certificate relying on or on the basis
of the order dated 14.07.1986 passed by this Court·
was wrongly interpreted and it committed an error in B
refusing to grant such a certificate.
It was directed:
"Hence, the application is allowed in said terms and
production of caste certificate dated 13.8.1987 by the C
applicant with respondent No. 4 - employer would be
sufficient compliance with the Circular issued by
respondent No. 4 in order to hold that the applicant belongs
to the Scheduled Tribe - Halba by virtue of the verdict of
this Court in Writ Petition No. 1347 of 1988 decided on D
11.8.1988."

- 13. Mr. Gaurav Agarwal, learned counsel appearing on
behalf of the appellant, would urge that although this special
leave petition is not in the nature of a public interest litigation
as such, but keeping in view of the fact that the judgment of the
High Court is wholly without jurisdiction being contrary to the
E

decision of this Court in Mi/ind as well as a large number of
decisions following the same, the impugned judgment cannot
be sustained.
F
14. Mr. A.V. Savant, learned senior counsel appearing on
behalf of the respondents, on the other hand, would contend
that the claim of the respondent No. 1 had never been advanced
on the basis that he belongs to Koshti, a sub-caste of Halba
tribe but all along the same had been advanced on the basis G
that he belongs to the said tribe.
Contending that the Division Bench of the Bombay High
Court in its judgment dated 11.08.1988 having held that the
respondent No. 1 should be declared to be belonging to "Halba"
tribe on the premise that his other relatives had been declared H
1010 SUPREME COURT REPORTS (2008] 12 S.C.R.

A as such, no exception to the impugned judgment can be taken
and for the aforementioned purpose, the caste certificates
granted to the father of the respondent No. 1, his uncle and the
cousin could be relied upon.
The learned counsel would urge that it would be incorrect
8 to contend that this Court in Mi/ind had overturned the decision
of the High Court that the test of scrutiny as regards the traits
of a member of the Scheduled Tribe should not be on the premise
that his other near relatives had been granted the certificates.
-
'
r
In support of the said contention, our attention has been drawn
C to the following questions framed by this Court in Mi/ind : '
"(1) Whether at all, it is permissible to hold inquiry and let
in evidence to decide or declare that any tribe or
tribal community or part of or group within any tribe
or. tribal community is included in the general name
D
even though it is not specifically mentioned in the
entry concerned in the Constitution (Scheduled
Tribes) Order, 1950?
(2) Whether "Halba-Koshti" caste is a sub-tribe within
E the meaning of Entry 19 (Halba/Halbi) of the said "
Scheduled Tribes Order relating to the State of
Maharashtra, even though it is not specifically
mentioned as such?"
So far as the question No. 2 is concerned, it has been
F held that "it is not even permissible to say that a tribe, sub-tribe,
part of or group of any tribe or tribal community is synonymous
to the one mentioned in the Scheduled Tribes Order if they are
not so specifically mentioned in it".
15. Article 342 of the Constitution of India reads as under:
G
"342. Scheduled Tribes
(1) The President may with respect to any State or Union
territory, and where it is a State after 9onsultation
with the Governor thereof, by public notifications
H
RAJU RAMSING VASAVE v. MAHESH DEORAO 1011
BHIVAPURKAR & ORS. [S.B. SINHA, J:]
...r-
specify the tribes or tribal communities or parts of or A
groups within tribes or tribal communities which shall
for the purposes of this Constitution be deemed to
be Scheduled Tribes in relation to that State or Union
territory, as the case may be.
(2) Parliament may by law include in or exclude from the B
list of Scheduled Tribes specified in a notification
issued under clause (1) any tribe or tribal community
or part of or group within any tribe or tribal community,
but save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent c
notification."
16. In terms of the said provision, the Constitution
(Scheduled Tribes) Order, 1950 was issued. The tribe "Halba"
finds place in the said order. "Koshti", however, in the State of
D
Maharashtra comes under 'special backward class'. Their
..... occupation may be the same but it is well-settled that before a
perso~n can obtain a declaration that he is a member of a
I

scheduled tribe, he must be a member of a tribe. [See Nityanand
Sharma v. State of Bihar (1996) 3 SCC 576]
E
The Parliament, it is trite, alone can amend the law and
the schedule for the purpose of including or excluding therefrom
a tribe or tribal community or part of or group within the same
in the State, district or region and the declaration made by the
Parliament is conclusive. For the said purpose, the court does F
not have any jurisdiction so as to enable it to substitute any
caste and tribe.

17. It is not correct to contend that the Bombay High Court
in Mi/ind Sharad Katware (supra) was not concerned with the
_, question as to whether Halba - Koshti is a sub-tribe of Halba G
or Halbi. It in fact considered the said question in great depth.
It referred to a large number of judgments. The doctrine of stare
decisis was applied.

18. Mi/ind was applied in a large number of cases. Some
H
1012 SUPREME COURT RE::PORTS [2008] 12 S.C.R. ·

----...
l
A of the judgments had been accepted by the Government. It is
in the aforementioned backdrop, this Court in Mi/ind opined:
"31. The High Court applied the doctrine of stare decisis
on the grounds that the decisions referred to above were
considered judgments; even the Government accepted
B their correctness in the courts; the State Government
independently took the same view after repeated '-·
deliberations for a number of years; taking a contrary view
would lead to chaos, absurd contradictions resulting in
great public mischief. In our view, the High Court was again
c wrong in this regard. The learned Senior Counsel for
Respondent 1 was not in a position to support this
reasoning of the High Court and rightly so in our opinion.
Among the decisions listed above except the first two
decisions, all other decisions were rendered subsequent
D to two Constitution Bench judgments (supra) of this Col.!:t.
The first two judgments were d.elivered in 1956 and 1957.
In this view, the High Court was not right in stating that the ~

decisions were rendered during a long span of over 34
years by different Benches of different High Courts,
E consistently holding that "Halba-Koshti" is "Halba". The
rule of stare decisis is not inflexible so as to preclude a
departure therefrom in any case but its application
depends on facts and circumstances of each case. It is
good to proceed from precedent to precedent but it is
F earlier the better to give quietus to the incorrect one by ._
annulling it to avoid repetition or perpetuation of injustice,
hardship and anything ex facie illegal, more particularly
when a precedent runs counter to the provisions of the
Constitution. The first two decisions were rendered without
having the benefit of the decisions of this Court, that too
G
concerning the interpretation of the provisions of the
Constitution ... "
It was categorically held that the High Court was not correct
in invoking and applying the doctrine of stare decisis.
y
RAJU RAMSING VASAVE v. MAHESH DEORAO 1013
BHIVAPURKAR & ORS. [S.S. SINHA, J:]
~
19. Furthermore, the Bombay High Court proceeded on A
the basis that the "Halba-Koshtis" were treated in the region of
Vidarbha as "Halbas". This Court noticed that the State of
......... Maharashtra had issued a large number of circulars pointing
7'_, out that a large number of persons who did not belong to
Scheduled Tribe are taking benefit thereof. It was in the B
"'-..i· aforementioned premise, this Court opined that the opinion of
the Caste Scrutiny Committee which was constituted in terms
of the decision of this Court in Kumari Madhuri Patil and
Another v. Addi. Commissioner, Tribal Development and
Others [(1994) 6 SCC 241] had received the statutory c
recognition by the State, stating:
" ... The State Government issued resolution dated 29-10-
1980 in consonance with the instructions given by the
Central Government laying down the guidelines on which
the inquiry should be held before issue of the caste D
certificate. Another resolution dated 24.2.1981 was also
issued for appointing a Scrutiny Committee to verify
whether the caste certificate has been issued to a person
who is really entitled to it in view of the complaints of
misuse of reservational benefits on a large scale. These E
resolutions were operative as they had not been repealed.
This Court in its judgment dated 19-10-1984 State of
~ Maharashtra v. Abhay directed that the State of
Maharashtra should devise and frame a more rational
method for obtaining much in advance a certificate on the
F
strength of which a reserved seat is claimed. But the High
Court committed an error in interpreting the scope of the
circular dated 31-7-1981 that the School Leaving
Certificate was conclusive of the caste. This interpretation
.. .. was plainly inconsistent with the instructions and resolutions
G
stated above. Further, it may be also noticed here that the
Joint Parliamentary Committee did not make any
recommendation to include "Halba-Koshti" in the
Scheduled Tribes Order. At any rate the Scheduled Tribes
Order must be read as it is until it is amended under
H
1014 SUPREME COURT REPORTS [2008) 12 S.C.R.

~
(
A clause (2) of Article 342. In this view also, the circulars/
resolutions/instructions will not help Respondent 1 in any
way. Even otherwise, as already stated above, on facts
found and established the authorities have rejected the
claim of Respondent 1 as to the caste certificate. The
B power of the High Court under Article 227 of the
Constitution of India, while exercising the power of judicial
review against an order of inferior Tribunal being ~·
supervisory and not appellate, the H~gh Court would be
justified in interfering with the conclusion of the Tribunal,
only when it records a finding that the inferior Tribunal's
c conclusion is based upon exclusion of some admissible
evidence or consideration of some inadmissible evidence
or the inferior Tribunal has no jurisdiction at all or that the
finding is such, which no reasonable man could arrive at,

D
on the materials on record. The jurisdiction of the High
Court would be much more restricted while dealing with t
the question whether a particular caste or tribe would come
within the purview of the notified Presidential Order, ..-'

considering the language of Articles 341 and 342 of the
Constitution. These being the parameters and in the case
E in tiand, the Committee conducting the inquiry as well as
the Appellate Authority, having examined all relevant
materials and having recorded a finding that Respondent
1 belonged to "Koshti" caste and has no identity with "Halba/
Halbi" which is the Scheduled Tribe under Entry 19 of the
F Presidential Order, relating to the State of Maharashtra, the
High Court exceeded its supervisory jurisdiction by making )..

a roving and in-depth examination of the materials afresh
and in coming to the conclusion that "Koshtis" could be
treated as "Halbas". In this view the High Court could not
upset the finding of fact in exercise of its writ jurisdiction.
G
Hence, we have to essentially answer Question 2 also in '-
the negative. Hence it is answered accordingly."
It was furthermore noticed that even the Central
Government had issued several circulars which had been
H ignored by the High Court in arriving at the said decision.
RAJU RAMSING VASAVE v. MAHESH DEORAO 1015
BHIVAPURKAR & ORS. [S.B. SINHA, J:]
•.:..""
~
20. One of the questions which has been raised before us A
is as to whether the offer of appointment made in favour of the
respondent No. 1 by the Maharashtra Pollution Control Board
dated 16.03.1998 is final so as to attract the direction contained
in paragraph 38 of Mi/ind (supra).
BI,
.....
·~
Where factual foundation arrived at by a committee
authorised in this behalf concludes that a person is not a member
of the Scheduled Tribe would remain operative unless set aside
by a superior court. The judgment of the High Court in favour of
j
the respondent No. 1 was rendered on a wrong premise. The
claim of the respondents may be that he belonged to the Ha Iba c ',
tribe but, therefor, no factual foundation was placed before the
High Court. The High Court relied solely on its earlier decision
to hold that Koshti would come within the purview of the
Scheduled Tribe of Halba or Halbi. The decision was rendered
.. in 1988. The records maintained by the school where the D
respondent studied were not placed before the High Court.
Only when the Caste Scrutiny Committee, a statutory committee,
proceeded to enquire into the matter, the truth came out.
We do not mean to suggest that an opinion formed by the
Committee as regards the caste of the near relative of the E
applicant would be wholly irrelevant, but, at the same time, it
must be pointed out that only because, by mistake or otherwise,
a member of his family had been declared to be belonging to
a member of the Scheduled Tribe, the same by itself would not
":J be conclusive in nature so as to bind another Committee while F
examining the case of other members of the family at some
details. If it is found that in granting a certificate in favour of a
member of a family, vital evidences had been ignored, it would
be open to the Committee to arrive at a different finding.
-· '
21. We reiterate that to fulfill the constitutional norms, a
G
person must belong to a tribe before he can stake his claim to
be a member of a notified Scheduled Tribe. When an advantage
-i is obtained by a person in violation of the constitutional scheme,
a constitutional fraud is committed.
H
'10~6 SUPREME COURT REPORTS [2008] 12 S.C.R.

• A 22. Contention of Mr. Savant must be tested on the premise
as to whether the principle of resjudicata-applie~ in a case of
thjs nature.
· Principle of res judicata is undoubtedly a salutary principle.
Even a wrong decision would attract the principle of res judicata.
B The said principle, however, amongst others, has some
exceptions, e.g., when a judgment is passed without jurisdiction,
when the matter- involves a pure que'Stion of law or when the
judgment has been obtained by committing fraud on the court.

c - In Williams v. Lourdusamy and Anr [(2008) 5 .sec 647],
this Court stated the law, thus:
"11. The principles of res-judicata although provide for a
salutary principle that no person shall be harassed again
. and again, have its own limitations. In O.S. No. 402 of
D 1987, the respondent No. 2 was not impleaded as a party.
In his absence therefore, th~ issue as to whether
respondent No. 2 had entered into an oral agreement of
sale or not could not have been adjudicated upon. The ,.,
said Court had no jurisdiction in that behalf.klUhat was -
E decided in the said ~!Jit, the findjngs would have been
nullities."
23. Two legal principles which would govern a case of this
nature; are:

F (i) . A decision rendered without jurisdiction being a nullity,
the principle of -res judicata. shall not apply.
(ii) Jf a fraud has been committed o'n the court, no-benefit
therefrom can be claimed on the bas.is of thereof or
' ,

'
.G
"' 24. In support of the first principle, we may ~t the outset
refer to Chief Justice of Andhra Pradesh and Others v. L:...VA.
Dixitulu [(1979)2 SCC 34] wherein' this Court, while discussing
the effect of Section 11 of the CPC-on a pure question of law
H ~or a decision gi~en by a court without jurisdiction, opined:
IJ

RAJU RAMSING VASAVE v. MAHESH DEORAO 1017
BHIVAPURKAR & ORS. [S.S. SINHA, J:]

"Moreover, this is a pure question of law depending upon A
the interpretation of Article 371 D. If the argument holds
good, it will make the decision of the Tribunal as having
been given by, an authority suffering from inherent lack of
jurisdiction. S\Jch a decision cannot be sustained merely
by the doctrine of res judicata or estoppel as urged in this B
case."
A Three - Judge Bench of this Court in Ashok Leyland
Ltd. v. State of Tamil Nadu and Anr. [(2004)3SCC1], held:
"120. The principle ()f res judicata is a procedural provision. c,
A jurisdictional question if wrongly decided would not attract
the principle of res judicata. When ari order is passed
.·without jurisdiction, the same becomes a nullity. When an
order is a nullity, it cannot be supported by invoking the
procedural principles like, estoppel, waiver or res
0
judicata."
[See also Dwarka Prasad Agarwal (0) By LRs. and Anr.
v. B.O Agarwaland Ors. ( 2003) 6 SCC 230, Union of India
v. ·Pramod Gupta (2005f 12 SCC 1 and National Institute of
Technology and Ors. v. Niraj Kumar Singh (2007) 2 SCC E
~ 481)

25. So far as the second prindple, noticed by us, is
concerned, there is no dearth of authority.
_ Fraud vitiates all solemn ac!s. When an order has been F
obtained by practising fraud on the court, it would be a nullity.
In Ganpatbhai Mahijibhai Solanki v. State of Gujarat arid
Ors. [(2008) 3 SCC 556), this Court held: ·
"ltis_now a well settled principle that.fraud vitiates all solemn G
~- ,acts. If an order is obtained by reason of commission of
fraud, even the principles"of natural justice are not required .
to be complied with for settiryg aside the same."
It was further observed:
H
1018 SUPREME COURT REPORTS [2008] 12 S.C.R.
i......._ ......

A "In T Vijendradas and Anr v M. Subramanian and Ors.,
this Court held;
21 .... When a fraud is practiced on a court, the same is
rendered a nullity. In a case of nullity, even the principles
of natural justice are not required to be complied with.
B [Kendriya Vidyalaya Sangathan and Ors. v. Ajay Kumar. ~j

Das and .Ors. & A. Umarani v. Registrar, Cooperative
societies and Ors.]
i'
.
~

~
22. Once it is held that by reason of commission of a
c fraud, a decree is rendered to be void rendering all
subsequent proceedings taken pursuant thereto also nullity,
in our opinion, it would be wholly inequitable to confer a
benefit on a party, who is a beneficiary thereunder.... "
In K.D. Sharma v. Steel Authority of India Ltd. and Ors.
D [2008 (10) SCALE 227], this Court opined:
"16. Reference was also made to a recent decision of this
Court in A. V Papayya Sastry and Ors. v. Govt. of A.P
and Ors. (2007) 4 SCC 221. Considering English and
Indian cases, one of us (C.K. Thakker, J.) stated:
E
It is thus settled proposition of law that a judgment, decree
or order obtained by playing fraud on the Court, Tribunal
or Authority is a nullity and non est in the -eye of law. Such
a judgment, decree or order -by the first Court or by the
F final Court- has to be treated as nullity by every Court, -f
'-
superior or inferior. It can be challenged in any Court, at
any time, in appeal, revision, writ or even in collateral
proceedings.
17. The Court defined fraud as an act of deliberate
G deception with the design of securing something by taking -i-
unfair advantage of another. In fraud one gains at the loss :
and cost of another. Even the most solemn proceedings
stand vitiated if they are actuated by fraud. Fraud is thus
an extrinsic collateral act which vitiates all judicial acts,
H whether in rem or in personam."

i-
RAJU RAMSING VASAVE v. MAHESH DEORAO 1019
BHIVAPURKAR & ORS. [S.B. SINHA, .J:]

--;;;! 26. The order dated 11.08.1988, thus, would not operate A
as a res judicata so as to disable it from considering the merit
of the case of the respondent No. 1 by the State of Maharashtra
or Maharashtra Pollution Control Board afresh. The decision of
the High Court ex facie is unsustainable.
27. We may at this juncture notice some decisions of this B
~

- ' Court where the question at hand has been discussed.
In State of Maharashtra 'and Others v. Ravi Prakash
Babula/sing Parmar and Another [(2007) 1 SCC 80], this Court
held: c
"23. The makers of the Constitution laid emphasis on
equality amongst citizens. The Constitution of India
provides for protective discrimination and reservation so
as to enable the disadvantaged group to come on the
same platform as that of the forward commuoity. If and D
.... when a person takes an undue advantage of the said
beneficent provision of the Constitution by obtaining the
~
benefits of reservation and other benefits provided under
the Presidential Order although he is not entitled thereto,
he not only plays a fraud on the society but in effect and E
substance plays a fraud on the Constitution. When,
therefore, a certificate is granted to a person who is not
otherwise entitled thereto, it is entirely incorrect to contend
that the State shall be helpless spectator in the matter.
24. We, with respect, fail to appreciate the approach of F
4..
..) the High Court as it proceeded on the premise that once
the surname of the respondent tallied with the name of the
tribe, which finds mention in ·one or the other entries of the
Schedule appended to the 1976 Order, the same must be
treated to be sacrosanct and no enquiry in relation to the G,
-l- correctness of the said certificate can be gone into by any
committee. The observations and directions of the High
Court, in our considered opinion, were not only contrary to
the judgments of the Court but also fall short of the ground
realities. H
1020 SUPREME COURT REPORTS [2008] 12 S.C.R.

A 25. Mr Ar-Vind Savant, the learned Senior Counsel, would
place strong reliance on a decision of this Court in Pa/ghat
Ji/la Thandan .Samudhaya Samrakshna Samithi and in
particulc;ir paras 18 and 19 thereof, which read as under:
(SCC p.365)
B "18. These Judgments leave no doubt that the Scheduled
Castes Order has to be applied as it stands and no enquiry
can be held or evidence let in to determine whether or not
some particular community falls within it or outside ,it. No
'"action to modify the plain effect of th~ Scheduled Castes
c Order, except as contemplated by Article 341, is valid.
19. The Thandan community in the instant case having'
·been listed in the Scheduled Castes Order as it now
stands, it is not open to the State Government or, indeed,
to this Court to embark upon an enquiry fo determine
D
whether a section of Ezhavas/Thiyyas which was called
Thandan in the Mala~ar area of the State was excluded f-

from the benefits of the Scheduled Cas~es Order."
In Addr- General Manager - Human Resource, Bharat
E Heavy Electricals Ltd. v. Suresh Rarhkrishna Burde ((2007) 5
SCC 336], this Court held:
"14. In the case in hand the respondent got appointment
on 31-5-1982 on a post, which was reserved fora member
of Scheduled Tribe. On receiving complaints the employer
F referred the matter to the District Collector, Nagpur and
also to the Scrutiny Committee in March 1991. The
subsequent period has been spent in making enquiry and
in litigation as the respondent filed three writ petitions. In
view of the principle laid down by this Court we are qlearly
G of the opinion that his services were rightly terminated by
the appellant and the High Court was in error in directing +-
his reinstatement. The order passed by the High Court,
therefore, has to be set aside."
In State of Maharashtra & Ors. v. Sanjay K. Nimje
H
RAJU RAMSING V_ft..SAVE v. MAHESH DEORAO 1021
BHIVAPURKAR & ORS. [S.B. SINHA, J:]

-~
[2007(2) SCALE 214], it was held that a-·person cannot get a A
benefit to which he is not otherwise entitled to.
28. Our attention has been drawn to the· fact that the
appellant herein had filed applications for leave to file two
special leave applications; one against the order dated
26.06.2006 ·and another against the order dated 11.08.1988. B
.... Whereas leave has been granted and notice had been issued
on 16.04.2007 in the order 26.06.2006, the same has been
declined in respect of the order dated 11.08.1988.
29. Contention of the learned counsel is that the order C'
dated 11.08.1988 has even been given the stamp of finality by

" this Court.
We are unable to accept the said contention. Apart from
the fact that the petition for leave against the order dated-
11.08.1988 was dismissed on the groun~ of delay alone, the D
appellant herein is affected by t~e impugned judgment of the
't
High Court dated 26.06.2006. When the order dated 11.08.1988
> was passed, the judgment of the Bombay High Court was
prevailing. Appellant ·was not in picture at that point of time.
A question, furthermore, arises as to whether in a disposed E
of writ petition, a separate application was maintainable
although cause of action therefor arose subsequently. It is urged
that the said application was filed for implementing the earlier
order of the court. It could not be so as in the meantime the
Caste Scrutiny Committee had already taken a decision. F
,.,
,> Subsequent events of grave importance had taken place which
could not be ignored.
The Central Government had issued circulars. The
Maharashtra Pollution Control Board had also issued circulars.
G
Appellant's claim for grant of certificate was rejected in the
year 1997. If the respondent No. 1 was aggrieved thereby, he
could have filed an appropriate writ petition before the High
·court immediately thereafter.' He did not choose to do so. Only
when the question of grant of promotion arose, he sought to get
H
1022 SUPREME COURT REPORTS [2008] 12 S.C.R.

A his claim of being promoted as a member of the Scheduled ')(--
Tribe.
"!-=
It was in that sense, it was obligatory on the part of the
respondent No. 1 to question the validity of the circulars issued
by the Maharashtra Pollution Control Board. A separate writ
B petition therefor should have been filed. The Maharashtra
Pollution Control Board as also the Caste Scrutiny Committee
~
was required to be impleaded therein. When the order dated ~

11.08.1988 was passed by the High Court, no Caste Scrutiny
Committee existed. It came into force only after pronouncement
c of judgment of this Court in Kumari Madhuri Patil (supra).
The Maharashtra Government also enacted the
Maharashtra Scheduled Caste, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward
•
Classes and Special Backward Category (Regulation of
D
Issuance and Verification of) Caste Certificate Act, 2000.
We, therefore, reject the said contention. -r
30. The Maharashtra Pollution Control Board in its affidavit
categorically stated that the appointment of the respondent No.
E 1 cannot be treated to be final as no caste certificate had been
issued by the Statutory Committee.
31. We must now deal with the question of locus standi. .
A special leave petition ordinarily would not have been
F entertained at the instance of the appellant. Validity of
appointment or otherwise on the basis of a caste certificate
granted by a committee is ordinarily a matter between the ·•
4..

employer and the employee. This Court, however, when a
question is raised, can take cognizance of a matter of such a
grave importance suo motu. It may not treat the special leave
G
petition as a public interest litigation, but, as a public law
litigation. It is, in a proceeding of that nature, permissible for the
court to make a detailed enquiry with regard to the broader
a3pects of the matter although it was initiated at the instance
of a person having a private interest. A deeper scrutiny can be
H
RAJU RAMSING VASAVE v. MAHESH DEORAO 1023
BHIVAPURKAR & ORS. [S.B. SINHA, J:]

made so as to enable the court to find out as to whether a party A
-~·
to a lis is guilty of commission of fraud on the Constitution. If
such an enquiry subserves the greater public interest and has
a far reaching effect on the society, in our opinion, this Court will
not shirk its responsibilities from doing so.
We could have dismissed this application on the simple B
ground that the appellant has no locus standi. We did not do so
because as a constitutional court we felt it to be our duty to lay
down the law correctly so that similar mistakes are not
committed in future. Apart from the general power of the superior
courts vested in it under Article 226 or Article 32 of the Constitution c
of India, this Court is bestowed with a greater responsibility by
the makers of the Constitution in terms of Article 142 of the
Constitution. Decisions are galore wherein this Court
unhesitatingly exercised such jurisdiction to resort to the creative
interpretation to arrive at a just result in regard to the societal D
and/ or public interest. We thought that it is a case of that nature.
' 32. We may notice that recently such a legal principle has been
.a
considered by this court in Indian Bank v. Godhara Nagrik
Cooperative Credit Society Ltd. and Another [2008 (7) SCALE 363].
E
This Court, however, while laying down the law suitably
mould the relief so as to do complete justice between the parties.
33.ln Sandeep Subhash Parate v. State of Maharashtra
and Others [(2006) 7 SCC 501 ], this Court in the matter of
grant of relief applied the doctrine of proportionality directing: F
...
)
"15. We do not find any lack of bona tides 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. For about the last three years, he had not been
G
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
educati.on like engineering. We, in the peculiar facts and
H
1024 SUPREME COURT REPORTS [2008] 12 S.C.R.

A circumstances of this case, are not inclined to go into the .F
, -q·uestion as regards purported commission of fraud by
the appellant, particularly, when the University admitted
him without any demur whatsoever. We are doing so having
r~gard to the doctrine of proportionality. The appellant has
B suffered a lot. He might riot be entirely responsible therefor,
He might have been under a bona fide belief that he comes
··· -within the purview of notified category. We, therefore, albeit ,,t.
...
with much reluctance accept the fervent and impassionate
plea made by the learned counsel appearing for the
appellant that he be allowed to obtain the degree: The same
c shall, how~ver, be subject to payment of Rs 1 lakh in favol.lr
of the $tate 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
D satisfactory proof of the deposit of such an amount,
Respondent 4 shall immediately issue the degree in his
;i
favour. The appellant shall not claim any benefit flowing
from the caste certificate obtained by him, which shall stand ..
cancelled. In future, for all purposes he will be treated to be
E a person belonging to-the general category."
34. In Union of India v. Dattatray S/o Namdeo Mendhekar
and Others [(2008) 4 SCC 612], this Court held:
"5. Mi/ind (supra)related to a Medical College admission.
F The question that arose for consideration in that case was
whether it was open to the State Government or Courts or -1
f...
other authorities to ·modify, amend or alter the list of
Scheduled Tribes and in particular whether the "Halba-
Koshti" was a sub-division of 'Halba' Tribe. This Court
held that it was not permissible to amend or alter the list
G
of Schedule Tribes by including any sub-divisions or
otherwise. On facts, this Court found that the respondent +-
therein had been admitted in medical course in ST,
category, more than 15 .years back; that though his
admission deprived a scheduled tribe student of a medical
H
·t::
RAJU RAMSING VASAVE v. MAHESH DEORAO 1025
BHIVAPURKAR & ORS. [S.B. SINHA, J:]

seat, the benefit of that seat could not be offered to A
scheduled tribe student at that distance of time even if
'respondent's admission was to be annulled; and that if his
admission was annulled, it will lead to depriving the services
of a doctor to the society on whom the public money had
already been spent. In these peculiar circumstances, this B
Courf held that the decision will not affect the degree
secured, by respondent or his practice as a doctor but
made it clear that he could not claim to belong to a
Scheduled Tribe. But the said decision has no application
to a case which does not relate to an admission to an C
educational institution, but relates to securing employment
by wrongly claiming the benefit of reservation meant for
Schedule Tribes. When a person secures employment by
making a false claim regarding caste/tribe, he deprives a
legitimate candidate belonging to scheduled caste/tribe.,
of employment. In such a situation, the proper course is to D
cancel the employment obtained on the basis of the false
certificate so that the post may be filled up by a candidate
who is entitled to the benefit of reservation."
We do not intend to do so in this case as the respondent E
No. 1 is in service for a long time and the Bombay High Court
allowed the writ petition filed by him way back in 1988.
35. Invoking· our jurisdiction under Article 142 of the
-Constitution of India, keeping in view the long history of the
case and its backdrop, we are of the opinion that whereas it . F
- would not be proper for us to disturb the very appointment of
the appellant but it must be declared that his appointment shall
be treated to be that of a general category in the matter of
_promotion or otherwise. He shall not be eligible to get any
benefit as a member of a Scheduled Tribe.
G
36. For the reasons aforementioned, the appeal is allowed
with the aforementioned directions. In the facts and
circumstances of the case, there shall be no order as to costs.
K.K.T. Appeal allowed.
H