Bombay
High Court
Sau.
Ramkali W/O Bisram Zamarkar vs Schedule Tribe Certificate ... on 30
October,
2015
Bench:
B.P. Dharmadhikari
1 wp6889.14,2591.14 & 6586.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
(I) WRIT PETITION NO.6889 OF 2014
Shri Badalsingh s/o Bharosa
Rawale, aged about 55 years,
occupation : service, r/o
Plot No.604, Ashirwad Nagar,
Hudkeshwar Road, Nagpur. ig ...
Petitioner
‐ Versus ‐
1) Divisional Caste Certificate
Scrutiny Committee No.3,
Administrative Building No.2,
Civil Lines, Nagpur Division,
Nagpur.
2) Executive Engineer & Competent
Officer, Maharashtra State
Electricity Distribution Company Ltd.,
Rahate Colony, near Ramkrushna
Math, Congress Nagar Division,
Nagpur. ... Respondents
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
Shri S.R. Narnaware, Advocate for
petitioner.
Smt. B.H. Dangre, Government Pleader
for respondent
no.1.
Shri A.D. Mohgaonkar, Advocate for
respondent no.2.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
(II) WRIT PETITION NO.2591 OF 2014
Ku. Sakshi d/o Rajendrakumar
Satankar, aged : major, occupation :
student, resident of Plot No.48,
Pande Layout, Anandmangal
Apartment, Khamla, Nagpur‐25. ...
Petitioner
‐ Versus ‐
1) State of Maharashtra, through
its Secretary, Ministry of Tribal
Development Department,
Mantralaya, Mumbai ‐ 400 032.
2) Divisional Caste Certificate
Scrutiny Committee No.3,
Nagpur Division, Administrative
Building No.2, Civil Lines,
Nagpur.
3) Yeshwantrao Chavan College of
Engineering, Hingna Road,
Wanadongri, Nagpur, through
its Principal.
4) Rashtrasant Tukdoji Maharaj
Nagpur University, Nagpur,
through its Registrar. ... Respondents
‐‐‐‐‐‐‐‐‐‐
Shri P.C. Madkholkar, Advocate for
petitioner.
Smt. B.H. Dangre, Government Pleader
for respondent nos.1
and 2.
Shri A. Dubey, Advocate for respondent
no.3.
‐‐‐‐‐‐‐‐‐
(III) WRIT PETITION NO.6586 OF 2014
Sau. Ramkali w/o Bisram Zamarkar,
age 31 years, occupation :
household, r/o Ambadi, Taluq
Dharni, District Amravati. ...
Petitioner
‐ Versus ‐
1) Scheduled Tribe Certificate
Scrutiny Committee, Amravati
Division, Amravati.
2) The Collector, Amravati,
District Amravati.
3) The Sub‐Divisional Officer,
Melghat, Dharni, District
Amravati. ... Respondents
‐‐‐‐‐‐‐‐‐‐
Shri P.R. Agrawal, Advocate for
petitioner.
Smt. B.H. Dangre, Government Pleader
for respondent
nos.2 and 3.
‐‐‐‐‐‐‐‐‐‐
Date of reserving the judgment : 31/8/2015
Date of pronouncing the judgment : 30/10/2015
CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
DATED : OCTOBER 30 , 2015
JUDGMENT (PER P.N. DESHMUKH, J.)
Rule
returnable forthwith. Heard finally by consent of learned Counsel for the
parties.
2)
All these petitions are disposed of by this common judgment as substantial
question involved
therein
to a large extent is common.
3)
In Writ Petition No.6889/2014, petitioner has challenged order dated 17/1/2014
passed by
respondent
no.1 Caste Scrutiny Committee invalidating his caste claim of belonging to
`Mahar'
(Scheduled
Caste) and prayed for quashing of the same.
In
Writ Petition No.2591/2014, petitioner has challenged order dated 1/8/2013
passed by
respondent
no.2 Caste Scrutiny Committee invalidating her caste claim of belonging to
`Mahar'
(Scheduled
Caste) and prayed for quashing of the same.
In
Writ Petition No.6586/2014, petitioner has 5 wp6889.14,2591.14 & 6586.14
challenged order
dated
4/7/2013 passed by respondent no.1 invalidating her caste claim of belonging to
`Korku'
(Scheduled
Tribe) and prayed for quashing of the same.
4)
In nutshell, it is the case of petitioner Badalsingh s/o ig Bharosa Rawale in
Writ Petition
No.6889/2014
that he belongs to `Mahar' (Scheduled Caste) on the basis of voluminous
documents
of his father and forefathers pertaining to preindependence
period
submitted by him
and
he has obtained his primary education at Nagpur. He has relied upon School
Leaving
Certificate
indicating his said caste.
According
to him, Executive Magistrate, Nagpur in the year 1981 had issued caste
certificate on
the
basis of such documents. He was appointed on 8/1/1981 as Helper by respondent
no.2 against
the
post reserved for Scheduled Caste category candidate and was thereafter
promoted from time
to
time and was given higher pay scale. On completion of 32 years of 6
wp6889.14,2591.14 &
6586.14
service, petitioner was required to produce documents in order to prove his
caste claim
of
belonging to `Mahar' (Scheduled Caste) and accordingly he produced all such
necessary
documents.
The Police Vigilance Cell conducted enquiry and submitted report in favour of
the
petitioner.
However, respondent no.1 invalidated the caste claim of the petitioner on the
ground
that
he could not submit the documents pertaining to the period prior to 10/8/1950
of State of
Maharashtra
and that petitioner and his forefathers originally hailed from village
Shingdai, Tahsil
and
District Rajnandgaon (Chhatisgarh State). According to petitioner, though
respondent no.1
has
admitted that petitioner belongs to `Mahar' (Scheduled Caste), the dispute is
only regarding
caste
claim of petitioner in the Maharashtra State.
5)
Shri Narnavare, learned Counsel for petitioner Badalsingh, submits that on
being appointed in
the
year 1981 and on completion of 32 years of service, 7 wp6889.14,2591.14 &
6586.14 the
petitioner
deserves protection of his service. The learned Counsel has invited our
attention to
interim
order dated 9/3/2015 passed by this Court vide which petitioner was granted
interim
relief
in terms of prayer clauses (ii) and (iii) of the petition, i.e. stay to the
impugned order dated
17/1/2014
passed by respondent no.1ig Caste Scrutiny Committee and protection of service
of
petitioner.
6)
In Writ Petition No.2591/2014, it is the case of petitioner Ku. Sakshi d/o
Rajendrakumar
Satankar
that after passing 12th Standard examination, she was admitted in First Year
Bachelor
of
Engineering (Information Technology) course in CAP round against the seat
reserved for
Scheduled
Caste candidate in respondent no.3 College. When she was prosecuting her
studies,
proposal
for verification of her caste certificate was sent to respondent no.2 Committee
to which
she
submitted documents in support of her caste `Mahar' (Scheduled Caste). The
documents
produced
8 wp6889.14,2591.14 & 6586.14 by the petitioner are referred in para 4 of
the petition.
On
submitting such documents and on obtaining Police Vigilance Cell report, the
Caste Scrutiny
Committee
found that the petitioner failed to file any document in respect of showing her
relation
with
her grandfather and rejected her caste claim by passing the impugned order
dated 1/8/2013
on
the ground that she has failed to demonstrate that her father and forefathers
were residing in
State
of Maharashtra prior to 1950 and and also failed to prove her relation with
forefathers, i.e.
greatgrand
parents.
7)
Shri Madkholkar, learned Counsel for petitioner Ku. Sakshi, has submitted that
queries put to
petitioner
related to preindependence
period
and father and forefathers
of
petitioner being
illiterate
knowing no importance of documents, could not maintain the documents and as
such, it
was
practically impossible to produce any such document, which required petitioner
to file
affidavit
before respondent 9 wp6889.14,2591.14 & 6586.14 no.2 Committee stating
therein that
though
petitioner's father was born in C.P. and Berar, she and her family migrated to
Nagpur
(Maharashtra)
and are presently residing at Nagpur. It is further submitted that father and
forefathers
of petitioner are originally residents of Navargaon in Bhandara District in
Maharashtra
State and on growing family needs, forefathers of petitioner migrated to Betul
and
started
residing there. It is thus submitted that the ground that petitioner's
forefathers were not
residing
in State of Maharashtra prior to 1950 is unsustainable for the reason that
place where
petitioner's
forefathers were residing, i.e. village Sadar, District Betul was originally
part and
parcel
of Central Provinces and Berar of which Nagpur was capital. It is contended
that after
reoganisation
and formation of State of Maharashtra in the year 1960, the said region became
part
and parcel of State of Madhya Pradesh. As such, claim of respondent no.2 Caste
Scrutiny
Committee
that petitioner failed to produce any document establishing 10
wp6889.14,2591.14 &
6586.14
stay of her father and forefathers in Maharashtra prior to year 1950 is
incorrect as State
of
Maharashtra was formed in the year 1960. It is further submitted that
petitioner was protected
by
interim order dated 24/6/2014 passed by this Court in terms of prayer clauses
`C' and `D' of
the
petition, thereby staying the impugned order dated 1/8/2013 passed by respondent
no.2 and
protecting
her studies of B.E. Course including declaration of result during pendency of
the
petition.
8)
In Writ Petition No.6586/2014, it is the case of petitioner Sau. Ramkali w/o
Bisram Zamarkar
that
she was born in the year 1971 at village Amulla Kala, Taluq Khaknar, District
Burhanpur
(Madhya
Pradesh) and belongs to `Korku', which is recognized as Scheduled Tribe in
State of
Maharashtra
and Madhya Pradesh.
The
petitioner got married on 15/5/1994 with Shri Bisram Zamarkar, who also belongs
to `Korku'
(Scheduled
Tribe) and is a permanent resident of 11 wp6889.14,2591.14 & 6586.14
village
Ambadi,
Taluq Dharni, District Amravati. On 4/9/2001, SubDivisional
Officer,
Melghat, Taluq
Dharni,
District Amravati issued certificate to petitioner as belonging to `Korku'
(Scheduled
Tribe).
9)
Shri Agrawal, learned Counsel for petitioner Sau. Ramkali, has submitted that
in the year
2012,
petitioner filed her nomination form for contesting election of Panchayat
Samiti, Dharni
from
Shirpur constituency reserved for Scheduled Tribe (woman) and she came to be
elected. On
4/7/2013,
the respondent no.1 Caste Scrutiny Committee rejected her caste certificate
dated
4/9/2001,
which fact came to the notice of petitioner for the first time in March 2014
when she
received
communication from the office of Divisional Commissioner, Amravati by which she
was
directed
to remain present for hearing in the said office as her caste claim was
invalidated by the
Caste
Scrutiny Committee. It is submitted that petitioner is protected by interim
order passed by
this
12 wp6889.14,2591.14 & 6586.14 Court on 30/1/2015 in terms of prayer clause
(ii) of
petition,
thereby staying the effect and operation of the impugned order dated 4/7/2013
passed
by
respondent no.1 Caste Scrutiny Committee.
10)
Thus, according to learned Counsel Shri Narnaware, the caste claim of
petitioner in Writ
Petition
No.6889/2014 is invalidated only on the ground that petitioner and his
forefathers
though
originally hailed from village Shingdai, Tahsil and District Rajnandgaon
(Chhatisgarh
State),
the petitioner could not submit documents pertaining to the period prior to
10/8/1950 of
the
State of Maharashtra to respondent no.1 Caste Scrutiny Committee. It is further
submitted
that
petitioner belongs to `Mahar' (Scheduled Caste) and there is no dispute
regarding status of
the
caste claim, but dispute is only regarding State. In support of his
contentions, learned Counsel
has
relied upon the judgment of this Court in the case of Hitesh Dasiram Murkute
vs. 13
wp6889.14,2591.14
& 6586.14 State of Maharashtra and others (2007 (5) Mh.L.J.
454).
11)
Shri Madkholkar, learned Counsel for petitioner in Writ Petition No.2591/2014,
has
contended
that after sending petitioner's proposal for caste verification, ig though
petitioner
submitted
necessary documents to respondent no.2 Caste Scrutiny Committee in support of
her
claim
of belonging to `Mahar' (Scheduled Caste), respondent no.2 Caste Scrutiny
Committee
after
calling Police Vigilance Cell's report has held that petitioner failed to file
any document
showing
her relation with grandfather Mahadeo and also failed to establish her
relations with
great
grandfather Rama Ranu, resident of Navargaon, District Bhandara, which queries,
according
to learned Counsel, are relating to preindependence
period
and petitioner's parents being illiterate failed to maintain any document
and
as such, petitioner filed affidavit before the Caste Scrutiny 14
wp6889.14,2591.14 & 6586.14
Committee
stating therein that though petitioner's father was born in C.P. and Berar, she
and her
family
migrated to Nagpur (Maharashtra) and are presently residents of Nagpur. In
spite of that,
respondent
no.2 Caste Scrutiny Committee rejected the caste claim of the petitioner finding
her
to
have failed to demonstrate that she and ig her forefathers were residents of
Maharashtra prior
to
1950 and also on the ground that she failed to prove her relation with her
forefathers.
12)
Similarly, it is submitted by Shri Agrawal, learned Counsel for petitioner in
Writ Petition
No.6586/2014,
that petitioner was born on 1/1/1971 at village Amulla Kala, Taluka Khaknar,
District
Burhanpur (Madhya Pradesh) and belongs to `Korku', which is recognized as
Scheduled
Tribe
in State of Maharashtra as well as State of Madhya Pradesh. It is contended
that after her
marriage
in 1994, she started residing with her husband at village Ambadi, Taluka
Dharni,
District
Amravati and in spite of SubDivisional
15
wp6889.14,2591.14 & 6586.14 Officer,
Melghat,
Taluka Dharni, District Amravati issuing caste certificate in favour of
petitioner as
`Korku'
(Scheduled Tribe), respondent no.1 by the impugned order dated 4/7/2013
rejected the
caste
claim of the petitioner and cancelled the caste certificate issued by the SubDivisional
Officer
contrary to the settled law.
13)
The learned Counsel for the petitioners, in nutshell, have contended that it
was only after reorganization
of
States, some parts of C.P. and Berar went to newly formed State of Maharashtra
and
some parts merged in State of Madhya Pradesh. It is submitted that even after
reorganization
of
States, caste `Mahar' continues to be recognized as Scheduled Caste in State of
Maharashtra
and State of Madhya Pradesh and, therefore, the case of petitioners would be
squarely
covered by the decision of the Apex Court in the case of Sudhakar Vithal Kumbhare vs.
State
of Maharashtra and others {(2004) 9 SCC 481}
and 16 wp6889.14,2591.14 & 6586.14
judgment
of this Court in Bharat s/o Bhimrao Malakwade vs. Divisional Caste Certificate
Scrutiny
Committee
No.3, Nagpur and another {(2013(5) Mh.L.J. 946).
14)
Smt. Dangre, learned Government Pleader, by filing affidavitinreply,
has
opposed respective
petitions
and supported the impugned orders. She has contended that burden to prove caste
is on
the
petitioners and thus, it was necessary for the petitioners to support their
caste claims, which
they
have failed to do so by not placing necessary documentary evidence and as such,
have failed
to
establish that they and their forefathers are originally residents of State of
Maharashtra prior
to
1950. In support of her contentions, learned Government Pleader has relied upon
the
judgment
in the case of Bankimchandra Makanbhai Patel vs.
State of Maharashtra and others
(2006
(2) Mh.L.J. 664) wherein it is held that applicant, who is original 17
wp6889.14,2591.14 &
6586.14
resident of a particular State, will get caste benefits of that State and
benefits of caste are
not
admissible in migrated State. She has also relied upon the judgment of Full
Bench of this
Court
in Shweta Santalal Lal vs. State of Maharashtra and others (2010 (2) Mh.L.J.
904)
and submitted that migrant is not entitled for benefit of his caste in the
State of migration
and
he can enjoy caste benefits only in the State of his origin.
The
learned Government Pleader has by referring to the case of Madhuri Patil vs. Additional
Commissioner,
Tribal Development Department (AIR 1995 SC 94)
contended that each case has
to
be decided on its truthfulness and merits and that Caste Scrutiny Committee had
verified the
caste
claim of each petitioner on its own merits as per directions issued by the
Hon'ble Apex
Court
and has also relied upon the judgments of the Hon'ble Apex Court in Marri Chandra
Shekhar
Rao vs. Dean, Seth G.S.
Medical
College and others {(1990 (3) SCC 130) and Action Committee on Issue of Caste
18
wp6889.14,2591.14
& 6586.14 Certificate to Scheduled Castes and Scheduled Tribes in the State
of
Maharashtra and another vs. Union of India and another (1994 (5) SCC 244) and submitted
that
since petitioners have failed to make out their case, the Caste Scrutiny
Committee has rightly
issued
impugned orders. It is, therefore, prayed that the petitions are devoid of
merits and may be
dismissed.
15)
On perusal of impugned order in Writ Petition No.6889/2014 issued by respondent
Caste
Scrutiny
Committee, it is revealed that petitioner to prove his caste as `Mahar' had
produced
caste
certificate issued by the Executive Magistrate, Nagpur, his School Leaving
Certificates for
Class
III and VII, copy of service book and abstract of birth register of Rajnandgaon
District
(Chhatisgarh
State) in respect of one son and one daughter having been born to father of
petitioner,
which documents are duly considered by the Caste Scrutiny Committee and it has
found
that documents 19 wp6889.14,2591.14 & 6586.14 at serial nos. 2, 3 and 4 in
the impugned
order
are pertaining to the period after 1950 and other documents do not establish
caste claim of
petitioner
nor these documents establish that father, grandfather
and
great grandfather
were
residents of Maharashtra prior to 1950 or from that year. The
Vigilance
Cell's ig report establishes that father of petitioner is original resident of
village
Shingdai,
Tahsil and District Rajnandgaon (Chhatisgarh State) and no evidence could be
obtained
to
establish that prior to 1950, petitioner or his father was resident of
Maharashtra. The Vigilance
Cell's
report was communicated to petitioner. However, in spite of that, petitioner
could not
produce
any material to establish his caste claim and as such, as there was no evidence
establishing
fact of petitioner or his father, grandfather
or
great grandfather
being
resident of Maharashtra prior to 1950, but since documents
established
them to be original residents of Chhatisgarh State, caste claim of petitioner
came to
be
rejected.
20 wp6889.14,2591.14 & 6586.14
16) In Writ Petition No.2591/2014, the
caste claim
of
petitioner as belonging to caste `Mahar' (Scheduled Caste) was sent for
verification to Caste
Scrutiny
Committee and to establish caste claim, petitioner had produced caste
certificate issued
by
the Deputy Collector, Nagpur, her School Leaving Certificates issued by Bipin
Krishna Bos
Vidya
Bhavan, Nagpur and Saraswati Vidyalaya, Nagpur and School Leaving Certificate
of her
father
issued by Mission Primary School, Sadar, Taluq and District Betul (Madhya
Pradesh). The
Caste
Scrutiny Committee having considered documents along with Vigilance Cell's
report found
that
there was no sufficient evidence to establish that father, grandfather
or
great grandfather
of
petitioner was resident of Maharashtra prior to 1950 or from that year and
thus, on the
basis
of available documents, rejected the caste claim of the petitioner as she could
not establish
that
her family was residing in Maharashtra State prior to 1950 and as per
Government
Resolution
dated 24/8/1995, for 21 wp6889.14,2591.14 & 6586.14 Scheduled Caste or
Other
Backward
Class persons, who migrated from other State to State of Maharashtra,
concessions on
account
of their caste are not available.
17)
Similarly, in Writ Petition No. 6586/2014, in a detailed order ig passed by the
Caste Scrutiny
Committee,
on having duly considered documents submitted by petitioner, which are
mentioned
at
serial nos. i to viii, the Caste Scrutiny Committee has concluded that "
the
applicant has migrated from Madhya Pradesh to the Maharashtra State after the
date
of notification, i.e. 6/9/1950. Hence, she is not entitled to get the concession
of
Scheduled
Tribe in Maharashtra State. She is entitled to get a Scheduled Tribe
certificate
in Migrant's format C1.
She
can be issued a Caste Certificate in the form of
migrant
only after her producing the Caste Certificate of her father. The applicant did
not
produce the Scheduled Tribe certificate issued to her father or grandfather
by
the
concerned
22 wp6889.14,2591.14 & 6586.14 Competent Authority of Madhya Pradesh
State,
i.e. the competent Authority in whose jurisdiction they were residing on the date
of
Notification."
The
Caste Scrutiny Committee thus cancelled and confiscated the caste certificate
issued by the
SubDivisional
Officer,ig
Melghat, Taluq Dharni, District Amravati and as such, held that petitioner is
not
entitled for concessions of Scheduled Tribe in State of Maharashtra since
migrated from State
of
Madhya Pradesh to Maharashtra after 6/9/1950.
18)
In the case of Sudhakar Vithal Kumbhare (cited supra), the Hon'ble Apex Court
has observed
that
where any particular area of the country is required to be given protection is
a matter, which
requires
detailed investigation having regard to the fact that both Pandhurna in
District
Chhindwara
and the part of the area of Chandrapur District (State of Maharashtra) at one
point
of
time belonged to the 23 wp6889.14,2591.14 & 6586.14 same region and under
the Constitution
(Scheduled
Tribes) Order, 1950 as it originally stood, the tribe "Halba" or
"Halbi" of that region,
may
be given the same protection. The Hon'ble Apex Court also held that in a case of
this nature,
the
degree of disadvantages of various elements, which constitute the input for
recognition as a
Scheduled
Tribe, may not be totally different. It would be convenient to reproduce the
relevant
observations
of the Hon'ble Apex Court appearing in paragraph No.5 as under :
"But
the question which arises for consideration herein appears to have not been
raised
in any other case. It is not in dispute that the Scheduled Castes and Scheduled
Tribes
have suffered disadvantages and been denied facilities for development and
growth
in several States. They require protective preferences, facilities and benefits
inter
alia in the form of reservation, so as to enable them to compete on equal terms
with
the more advantaged and developed sections of the community. The question is
as
to whether the appellant being a Scheduled Tribe known as Halba/Halbi which
stands
recognized both in the 24 wp6889.14,2591.14 & 6586.14 State of Madhya
Pradesh
as well as in the State of Maharashtra having their origin in Chhindwara
region,
a part of which, on State's reorganization, has come to the State of
Maharashtra,
was entitled to the benefit of reservation. It is one thing to say that the
expression
"in relation to that State" occurring in Article 342 of the
Constitution of
India
should be given an effective or proper meaning so as to exclude the possibility
that
a tribe which has been included as a Scheduled Tribe in one State after
consultation
with the Governor for the purpose of the Constitution may not get the
same
benefit in another State whose Governor has not been consulted; but it is
another
thing to say that when an area is dominated by members of the same tribe
belonging
to the same region, which has been bifurcated, the members would not
continue
to get the same benefit when the said tribe is recognized in both the States.
In
other words, the question that is required to be posed and answered would be as
to
whether
the members of a Scheduled Tribe belonging to one region would continue to
get
the same benefits despite bifurcation thereof in terms of the States
Reoganization
Act.
With a view to find out as to 25 wp6889.14,2591.14 & 6586.14 whether any
particular
area of the country was required to be given protection is a matter which
requires
detailed investigation having regard to the fact that both Pandhurna in the
District
of Chhindwara and a part of the area of Chandrapur at one point of time
belonged
to the same region and under the Constitution (Scheduled Tribes) Order,
1950
as it originally stood the tribe Halba/Halbi of that region may be given the
same
protection.
In a case of this nature, the degree of disadvantages of various elements
which
constitute the input for specification may not be totally different and the State
of
Maharashtra even after reorganization might have agreed for inclusion of the
said
tribe
Halba/Halbi as a Scheduled Tribe in the State of Maharashtra having regard to
the
said fact in mind."
19)
In the case of Hitesh Dasiram Murkute (cited supra), referring to the
observations of the
Hon'ble
Apex Court in the case of Sudhakar Vithal Kumbhare (cited supra), in para 41 of
the
judgment
it is concluded as under :
"41.
To sum up :
26
wp6889.14,2591.14 & 6586.14
(i)
It is necessary to give full effect to both the expressions "for the
purpose of this
Constitution"
as
well as "in relation to the State", appearing in Articles 341 and 342
of the
Constitution
and Clause 2 of the Constitution Scheduled Tribe and Scheduled Castes
Orders,
1950, in order to identify the beneficiary correctly, i.e. by ensuring that he
belongs
to caste identified with reference to a State as Scheduled Caste or Tribe.
(ii)
The object of including a caste or a tribe in the schedules to the orders was
to do
away
with their disadvantaged position in the areas where they resided visavis
other
population.
The crucial test would therefore be whether the person concerned suffers
the
same degree of disadvantage visavis
other
segments, as other local people of his
caste
suffer or whether as a migrant, he is placed on a higher pedestal.
(iii)
Extending benefits to a migrant does no offence to the expression `in relation
to
the
State' in Articles 341/342 of the Constitution or Clause 2 of Scheduled
Caste/Scheduled
Tribes Orders, 1950, since entitlement of such a person would have
to
be still decided with reference to the origin of such 27 wp6889.14,2591.14
& 6586.14
migrant
and identification of migrant's caste as backward in relation to such State.
(iv)
Date too is equally relevant in order to identify the person as belonging to
caste
included
in the schedule on the date of such inclusion with reference to locality
identified
in the schedule. Therefore, a person claiming benefit would have to show
that
his ancestors hailed on the date of inclusion of caste in schedule from a place
identified
in the schedule. In other words, the relevant date is not date of migration
but
date of inclusion of caste or tribe in the schedule.
(v)
Reorganization of States did not proceed on the basis of castes or tribes but
on
linguistic
basis and, therefore, localities of persons entitled to the benefit of
reservation
got divided in different States.
(vi)
If upon removal of area restrictions, in the entire area of the State as originally
existed
on the date of notification of Constitution (Scheduled Castes/Scheduled
Tribes)
Orders, the persons concerned could avail of the benefits of reservation, there
is
no reason why they should be 28 wp6889.14,2591.14 & 6586.14 denied such
benefits
upon
reorganization of the States, in which a part of their locality was included.
(vii)
The ratio of the decision in Marri Chandra is only that a migrant would be
disentitled
for reservation in the State of migration, if his caste is not notified as
Scheduled
Caste or Scheduled Tribe in the State of migration. (Since in Marri
Chandra's
case the caste "Gouda" was notified in the State of Andhra Pradesh,
but not
in
Maharashtra). It would be impermissible to conclude that even though his caste
is
so
notified in the State of migration, he would be disentitled to benefits, since
such
conclusion
would frustrate the very object of providing benefits enumerated at (ii)
above.
(viii)
In Action Committee while explaining and following the ratio in Marri Chandra's
case,
the Apex Court must be held to have merely sought to deny benefits to migrant
belonging
to a caste of same nomenclature, by consciously choosing the expression
"same
nomenclature" and avoiding the use of words "same caste". This
implies that if
persons
belong to the `same caste', they were not to be denied the benefits.
29 wp6889.14,2591.14 & 6586.14
(ix) Sections 26 and 27 of the Bombay
State
Reorganization
Act merely amend the schedules as a corollary to creation of State of
Maharashtra
and have no bearing on the question of entitlement of the migrants to
reservation
with reference to date on which the State was created.
(x)
As held by the Apex Court in Sudhakar vs.
State, if a migrant belonged to a
community
which was recognised as Scheduled Caste or Scheduled Tribe in any
locality
which has been divided upon reorganization of States and his caste is
recognized
as Scheduled Caste/Scheduled Tribe even in such newly formed States, the
migrant
would be entitled to benefit of reservation even in the State in which part of
the
locality other than his place of origin has gone."
20)
In the case of Shweta Santalal Lal (cited supra), the issue for consideration
before Full Bench
of
this Court was as under :
"Whether
a person who was not ordinarily resident as on the date of the relevant
Presidential
Notification in the area that now 30 wp6889.14,2591.14 & 6586.14
constitutes
the State of Maharashtra will be entitled to the benefit of reservation in the
State
?"
and
on considering the judgments in the cases of Marri Chandra Shekhar Rao, Action
Committee
on
Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the
State of
Maharashtra
and another and Bankimchandra Makanbhai Patel (cited supra), has answered the
reference
as under :
"In
case of a migrant belonging to a Scheduled Caste, not ordinarily resident as on
10/3/1950 in
the
area that now constitutes the State of Maharashtra and in a case of S.T.,
considering Rule 5,
on
6/9/1950, would not be entitled to benefits of reservation as S.C./S.T. in the
State of
Maharashtra.
They and their progeny will continue to get the benefits of reservation in the
State
of
origin. Reference answered accordingly."
21) Thus, considering the ratio of the
judgment in
31 wp6889.14,2591.14 & 6586.14
Marri
Chandra Shekhar Rao (cited supra) as affirmed in Action Committee on Issue of
Caste
Certificate
to Scheduled Castes and Scheduled Tribes in the State of Maharashtra, the
position of
law
would be that if a person migrates to a geographical area forming part of
another State after
the
date of Presidential Notification, such a person will be treated as a migrant.
So
also, the children of such migrants born after the date of Presidential
Notification will be
entitled
to benefits of reservation in the State where their parents were ordinarily
resident. Marri
Chandra
Shekhar Rao (cited supra) makes that position clear.
Further
more, the Full Bench on considering the conclusions drawn in the case of Hitesh
Dasiram
Murkute
(cited supra) as laid down in para 41, has by dealing with each of the
conclusions (i) to
(x)
individually, distinguished the position of law laid down in the case of
Sudhakar Vithal
Kumbhare
(cited supra).
The
relevant conclusion in Clause (x) in the case of 32 wp6889.14,2591.14 &
6586.14 Hitesh
Dasiram
Murkute (cited supra) is reproduced hereunder :
"(x)
As held by the Apex Court in Sudhakar vs.
State, if a migrant belonged to a
community
which was recognised as Scheduled Caste or Scheduled Tribe in any
locality
which has been divided upon reorganization of States and his caste is
recognized
as Scheduled Caste/ Scheduled Tribe even in such newly formed States, the
migrant
would be entitled to benefit of reservation even in the State in which part of
the
locality other than his place of origin has gone."
Above
conclusion has been duly considered by the Full Bench in the case of Shweta
Santalal Lal
(cited
supra) and it is thus held "(
x)
Insofar as conclusion (x) is concerned, having explained the Judgment in
Sudhakar's
case, which is the Judgment of the Bench of three Judges and the two
Constitution
Bench Judgments in Marri Chandrashekhar and Action Committee, the
scheduled
castes and scheduled tribes from any locality which has been divided 33
wp6889.14,2591.14
& 6586.14 upon Reorganization of States and such caste or tribe is
also
recognized as Scheduled Caste and Scheduled Tribe in the newly formed State,
such
migrant would not be entitled to benefit of reservation in the State of
migration,
but
would be entitled only of benefit in the State of origin."
Having
considered so, the conclusion and the view taken in the case of Hitesh Dasiram
Murkute
(cited
supra) have been disapproved and is overruled.
22)
In the case of Sau. Kusum vs. State of Maharashtra and
others {(2009) 2 SCC 109}, petitioner
had
claimed to belong to `Carpenter' caste.
She
hailed from Vidarbha area having border area of Madhya Pradesh and Maharashtra.
Carpenters
in the State of Madhya Pradesh were known as `badhai' whereas in State of
Maharashtra,
they were known as `sutar'. In both the States, people belonging to said caste
were
entitled
to be considered as Other Backward Class. It is not known when the family of 34
wp6889.14,2591.14
& 6586.14 petitioner migrated from Madhya Pradesh to State of Maharashtra.
The
petitioner in that case contested election for the post of Sarpanch reserved
for Other
Backward
Class candidate and was elected. An application was filed before the Caste
Scrutiny
Committee
by respondent no.4 therein contending that she does not belong to the OBC
category.
In
the light of above facts, the Caste Scrutiny Committee finding that said
petitioner was born in
1962
in Chhindwara District and since she is not resident of Maharashtra prior to
1967, relying
upon
Circular dated 21/8/1996 issued by State of Maharashtra in respect of
candidates, who are
not
residents of Maharashtra prior to 1967, refused to verify the caste claim of
petitioner.
Being
aggrieved by the said order, writ petition came to be filed wherein direction
was issued to
Caste
Scrutiny Committee to scrutinise the caste claim of the petitioner and give its
finding. The
matter
was considered afresh by the Caste Scrutiny Committee and it was held that
petitioner is
of
`badhai' caste 35 wp6889.14,2591.14 & 6586.14 being `sutar' in Maharashtra
and maintained
its
decision that she was not a resident of Maharashtra.
On
the basis of above observations, her petition was dismissed, which order was
assailed before
the
Apex Court, which partly allowed the appeal giving directions to Caste Scrutiny
Committee to
consider
the claim of the petitioner afresh by allowing petitioner to adduce additional
evidence on
the
question as to when she migrated.
Thus,
in the case of Sau. Kusum (cited supra), it is held that if it is a fact that
people belonging to
said
caste are recognized as OBC both in Madhya Pradesh and Maharashtra being
`badhai' in
Madhya
Pradesh and `sutar' in Maharashtra and keeping in view that the Caste Scrutiny
Committee
found her belonging to `sutar' caste, the matter requires reconsideration
since
nothing
was on record to show as to when petitioner migrated to State of Maharashtra.
On that
count,
the matter was directed to be considered afresh with further observation that
if 36
wp6889.14,2591.14
& 6586.14 petitioner is aggrieved by the finding of the Caste Scrutiny
Committee
in regard to her parentage, she would be entitled to file a suit for
appropriate
declaration.
23)
In the instant petitions, there is no reason for us to disbelieve the evidence
collected by the
Vigilance
Cell, which is an independent Agency meant for collecting documentary and other
evidence
in order to find out whether the person really belongs to caste which he/she
claims as
well
as the place from which such person hails. In the impugned orders passed by the
Caste
Scrutiny
Committee, it is held that the petitioners in the instant petitions or their
forefathers were
not
the residents of Maharashtra State prior to 1950 and as such, their caste
claims are
invalidated.
24)
We are, therefore, of the opinion that in the interest of justice, the impugned
orders are liable
to
be set aside by remitting matters back for fresh 37 wp6889.14,2591.14 &
6586.14 consideration
by
the Caste Scrutiny Committee wherein petitioners shall be permitted to adduce
evidence on
the
question as to when petitioners or their forefathers had migrated to State of
Maharashtra.
The
respondent Caste Scrutiny Committee is, therefore, directed to decide the caste
claims of
petitioners
within three months from the date of their appearance before it. The
petitioners shall
appear
before the Caste Scrutiny Committee on 1/12/2015 and tender evidence before it
in order
to
show that he/she belongs to the same caste/tribe, which has been notified as
Scheduled
Caste/Scheduled
Tribe both in State of origin and State of Maharashtra. The Caste Scrutiny
Committee
will be entitled to examine all relevant aspects of the matter while
considering
petitioners'
prayer for issuance of caste validity certificates.
Accordingly
(
i) Writ Petition No.6889/2014 is
partly
allowed. The impugned order dated
17/1/2014
38 wp6889.14,2591.14 & 6586.14
passed by respondent no.1 Caste
Scrutiny
Committee is quashed and set aside.
The
respondent no.2 is directed not to disturb the employment of petitioner till his
caste claim is
decided.
(ii)
Writ Petition No.2591/2014 is partly allowed. The impugned order dated 1/8/2013
passed by
respondent
no.2 Caste Scrutiny Committee is quashed and set aside.
The
respondent nos.3 and 4 are directed to allow petitioner to continue her B.E.
Course subject to
result
of her caste claim and declare results of examinations, which may take place in
the
intervening
period.
(iii)
Writ Petition No.6586/2014 is partly allowed. The impugned order dated 4/7/2013
passed by
respondent
no.1 Caste Scrutiny Committee is quashed and set aside.
Rule
is made absolute in above terms in all the three petitions. No order as to
costs.
JUDGE JUDGE
