Bombay
High Court
Milind
S/O Madhukarrao Bambal vs Joint Dirctor And Vice Chairman ... on 13 March, 2015
Bench:
B.P. Dharmadhikari
Judgment wp1802.14+5
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 1802/2014, 1503/2011, 2839/2013,
5178/2013, 5766/2013, 6868/2013, 3476/2013 & 5892/2013.
*****
WRIT PETITION No. 1802/2014.
Ku. Alka d/o. Prabhakarrao Mahure,
(Sau. Alka w/o Vijay Khuje)
Aged about 40 years, Occ - Service,
r/o. 53, Ahilya Nagar, Jaitala Road,
Nagpur. ....PETITIONER
VERSUS
1. Joint Director & Vice Chairman,
Scheduled Tribe Caste Certificate Scrutiny
Committee, Adiwasi Vikas Bhavan,
Giripeth, Nagpur.
2. The President,
School committee, International
Convent Marathi Higher Primary
School, Dambhare layout,
Nagpur.
3. The Head-Mistress,
International
Convent Marathi Higher Primary
School, Dambhare layout,
Nagpur. ....RESPONDENTS
.
::: Downloaded on - 19/03/2015 00:01:01 :::
Judgment wp1802.14+5
2
-----------------------------------
Mr. S.R. Narnaware, Advocate for Petitioner.
Mrs. B.H. Dangre, Advocate for Respondent No.1.
Mr. M. Masodkar, Advocate for Respondent Nos.2 and 3.
------------------------------------
.....
WRIT PETITION No. 1503/2011.
Moreshwar s/o Vishwanath Shinde,
Aged about 39 years, Occ - Service,
r/o. Blue Bell, A-602, Hiranandani
Garden, Pawai, Mumbai-76. ....PETITIONER.
VERSUS
1. The Scheduled Tribe Caste Certificate Scrutiny
Committee, Irvin Chowk,
Amravati Division, Amravati.
2. The State of Maharashtra,
through its Secretary, General Administration
Department, Mantralaya,
Mumbai - 32. ....RESPONDENTS
.
-----------------------------------
Mr. S.R. Narnaware, Advocate for Petitioner.
Mr. A. Deshpande, Advocate for Respondent No.1.
Mrs. K.H. Joshi, A.G.P. for Respondent No.2.
------------------------------------
.....
::: Downloaded on - 19/03/2015 00:01:01 :::
Judgment wp1802.14+5
3
WRIT PETITION No. 2839/2013.
Sanjay Chandrabhansingh Chauhan,
(Thakur), Aged about 42 years, Occ -
Assistant Teacher, r/o. Solanki Layout
Buldhana, Tahsil and District
Buldhana. ....PETITIONER.
VERSUS
1. The State of Maharashtra,
through its Secretary, School Education
Department, Mantralaya,
Mumbai - 32.
2. Chief Executive Officer,
Zilla Parishad, Buldhana, Tahsil
and District Buldhana.
3. Chief Secretary,
General Administration Department,
Mantralaya, Mumbai - 400 032. ....RESPONDENTS
.
-----------------------------------
Mr. S.P. Bhandarkar, Advocate for Petitioner.
Mrs. K.H. Joshi, A.G.P. for Respondent Nos.1 & 3.
Mr. G.G. Mishra, Advocate for Respondent No.2.
Shri Rohit Deo, A.S.G.I. For Union of India.
------------------------------------
.....
WRIT PETITION No. 5178/2013.
Smt. Usha Manbahalsingh Gaur,
::: Downloaded on - 19/03/2015 00:01:01 :::
Judgment wp1802.14+5
4
Aged about 42 years, Occ - Service
as Assistant Teacher, r/o. Shiv colony
Ramalaya Apartment, near Vitthal Mandir
Amravati. ....PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary, Ministry of
Tribal Welfare Department, Mantralaya,
Mumbai - 32.
2. Scheduled Tribe Caste Certificate
Scrutiny Committee, Amravati Division,
Amravati, through its Member Secretary.
3. Shree Ganeshdas Rathi Chhatralaya
Samiti, a society registered under the
Societies Registration Act, Vidya Nagar,
Morshi Road, Amravati, through its
Secretary.
4. Shree Deorao Dada High School,
Tiosa, District Amravati,
through its Head Master. ....RESPONDENTS
.
-----------------------------------
Mr. R.H. Chandurkar, Advocate for Petitioner.
Mr. N.R. Rode, A.G.P. for Respondent No.1.
Mr. A.Deshpande, Advocate for Respondent No.2.
Mr. R.D. Wakode, Advocate for Respondent Nos. 3 and 4.
------------------------------------
.....
::: Downloaded on - 19/03/2015 00:01:01 :::
Judgment wp1802.14+5
5
WRIT PETITION No. 5766/2013.
Ku. Sunita Laxmansingh Bisen,
Aged about 40 years, (After marriage
Sunita Naresh Singh Chouhan)
r/o. Chitra Chowk, Pulgaon, Deoli
District Wardha. ....PETITIONER.
VERSUS
1. Scheduled Tribe Certificate Scrutiny
committee, through its Member
Secretary, Irwin Chowk,
Amravati.
2. Shriram Shikshan Sanstha,
through its President Shri
Arunbhau Adsad,
r/o. Dhamangaon Railway,
District Amravati.
3. Head Mistress, late Nandlal Loya
Kanya Vidyalaya & Junior College
Dhamangaon Railway,
District Amravati.
4. Education Officer (Secondary)
Zilla Parishad, Amravati. ....RESPONDENTS
.
-----------------------------------
Mr. R.S.Parsodkar, Advocate for Petitioner.
Mr. A. Deshpande, Advocate for Respondent no.1.
Mr. N.S. Khubalkar, A.G.P. for Respondent No.4.
------------------------------------
.....
::: Downloaded on - 19/03/2015 00:01:01 :::
Judgment wp1802.14+5
6
WRIT PETITION No. 6868/2013.
Milind s/o Madhukarrao Bambal,
Aged about 44 years, Occ - Service
r/o. Parimal 85, Chakradhar Nagar
Post Ayodhya Nagar,
Nagpur - 440024. ....PETITIONER.
VERSUS
1. Joint Director and Vice Chairman,
Scheduled Tribe Caste Certificate
Scrutiny Committee, Adiwasi Vikas
Bhavan, Giripeth,
Nagpur.
2. Sub Area Manager,
Western Coalfields Ltd.,
Sillewara Sub Area.
Tah. Saoner, District Nagpur. ....RESPONDENTS
.
-----------------------------------
Mr. S.R. Narnaware, Advocate for Petitioner.
Mr. A. Deshpande, Advocate for Respondent No.1
Mr. S.C. Mehadia, Advocate for Respondent No.2.
------------------------------------
.....
WRIT PETITION No. 3476/2013.
Ajay s/o Pandurang Suryavanshi,
Aged about 34 years, Occ - Assistant
teacher, Shivaji High School, Gadchiroli
r/o. Porla, Taluka and District
Gadchiroli. ....PETITIONER.
::: Downloaded on - 19/03/2015 00:01:01 :::
Judgment wp1802.14+5
7
VERSUS
1. Shivaji High School, Gadchiroli,
through Head Master.
2. Shivaji Shikshan Prasarak Mandal,
Gadchiroli, through its
Secretary.
3. Scheduled Tribe Caste Certificate
Scrutiny Committee, Gadchiroli
through its Member Secretary. ....RESPONDENTS
.
-----------------------------------
Mr. R.S. Parsodkar, Advocate for Petitioner.
Mr. A. Deshpande, Advocate for Respondent No.3
------------------------------------
.....
WRIT PETITION No. 5892/2013.
Smt. Mangla wd/o Purushottam Pawar
(maiden name Ku. Mangla Bansod)
Aged about 52 years, Occ - Nurse
r/o. Karanja Bahiram, PHC
Karajgaon, Tq. Chandurkar Bazar,
District Amravati. ....PETITIONER.
VERSUS
1. Zilla Parishad, Amravati
through its Chief Executive Officer,
Amravati.
::: Downloaded on - 19/03/2015 00:01:01 :::
Judgment wp1802.14+5
8
2. The District Health Officer,
Zilla Parishad, Amravati.
3. Scheduled Tribe Caste Certificate
Scrutiny Committee, through its
Member Secretary, Irwin Chowk,
Amravati. ....RESPONDENTS
.
-----------------------------------
Mr. R.S. Parsodkar, Advocate for Petitioner.
Mr. G.G. Mishra, Advocate for Respondent No.1.
ig ------------------------------------
.....
CORAM : B. P. DHARMADHIKARI
AND A.P.BHANGALE, JJ.
Date of Reserving the Judgment : 12.01.2015
(W.P.NO.1802/2014)
20.01.2015
(W.P.NOS.1503/2011,
5178/2013 & 2839/2013.
21.01.2015
(W.P.NO.6868/2013)
23.01.2015
(W.P.NO.5766/2013,)
25.02.2015
(W.P.NO.3476 & 5892 OF
2013)
Date of Pronouncement : 13.03.2015.
Judgment wp1802.14+
Bombay
High Court
Milind
Bambal vs Joint Dirctor And Vice Chairman ... Bench: B.P. Dharmadhikari
Judgment on 13 March, 2015 wp1802.14+5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 1802/2014, 1503/2011, 2839/2013,
5178/2013, 5766/2013, 6868/2013, 3476/2013 & 5892/2013.
*****
In all these
petitions filed under Article 226 of the Constitution of India, challenge is
to order of the Scrutiny Committee functioning under Maharashtra Scheduled
Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificates Act, (Act No. 23 of 2001), invalidating
the caste/tribe claim of respective petitioner. The petitioners seek protection
in employment, in terms of Full Bench judgment of this Court in the matter of
Arun Vishwanath Sonone .vrs. State of Maharashtra and others (2015 (1) Mh.L.J.
457). The said claim for protection is objected by the State Government, as
also by their respective employers on the ground that their caste/tribe does
not figure in the Government Resolution dated 15.06.1995 or later policy
decision dated 30.06.2004, and hence benefit cannot be extended to them.
2. As the issue involved is same, as requested by the parties, we
have heard the matters together. Some matters have been added afterward, after
hearing the respective counsel therein. Thus, looking to the nature of the Judgment wp1802.14+5 controversy involved, we have heard
all the matters finally by issuing Rule, and making it returnable forthwith by
consent of the parties.
3. Shri S.P. Bhandarkar, learned Counsel appearing for petitioner
in Writ Petition No.2839/2013 had expressed desire to argue the matter
first.Other counsel for petitioners did not oppose his request. Accordingly we
have heard the learned counsel.
4. In Writ Petition No. 2839/2013, the Caste Scrutiny Committee is
not party and said petitioner has assailed a communication dated 05.04.2013,
issued by the Zilla Parishad, Buldhana calling upon him to produce validity
certificate issued by the Scrutiny Committee. Petitioner claims to belong to
'Thakur, Scheduled Tribe'. He is born on 14.05.1971.
He got caste certificate on 04.01.1989 showing that he belongs to
Thakur, Scheduled Tribe and he got selected for employment on 03.06.1995. His
caste claim was invalidated on 13.02.1998 and his Writ petition has been
rejected in limine in 1999 itself. He however, continued in service and after
receipt of show cause notice dated 05.04.2013, he has chosen to approach this
Court. This Court has protected his employment on 24.05.2013.
Judgment wp1802.14+5 In
Writ Petition No. 5766/2013, the petitioner initially assailed order of the
Scrutiny Committee invalidating his caste claim as belonging to 'Thakur
Scheduled Tribe' passed on 04.09.2013. However, after 19.06.2013, petition has
been pressed only for grant of protection in employment. She is born on
12.01.1972 and obtained caste certificate on 26.08.1982. She has been appointed
on 01.12.1998, as a person belonging to Thakur Scheduled Tribe. After order of
scrutiny committee dated 04.09.2013, she has been terminated by her employer, a
private Education Society on 30.09.2013.
Petitioner - Ku. Sunita seeks reinstatement by setting aside the
said order.
Petitioner - Smt. Usha Gaur in Writ Petition No. 5178/2013,
questions order of Scrutiny Committee dated 06.09.2013 invalidating her caste
claim as 'Thakur Scheduled Tribe'. She is born on 05.04.1970 and got caste
certificate on 30.04.1991. She entered employment of private employer i.e.
respondent nos. 3 and 4 School on 27.04.1998. Her certificate was sent for
verification on 25.04.2005, and caste claim has been invalidated on 06.09.2013.
This Court has on 26.09.2013, protected her employment.
Judgment wp1802.14+5 Petitioner
in Writ Petition No. 1503/2011 - Moreshwar Shinde, questions order of Scrutiny
Committee dated 24.04.2009 invalidating his caste claim as 'Thakur Scheduled
Tribe'. He is born some time in 1972 and he got caste certificate on
26.04.1989. On that basis he joined employment with respondent no.2 State of
Maharashtra on 17.11.1994. His caste certificate was forwarded for verification
on 10.06.2003, and has been invalidated on 24.04.2009. On 28.08.2011, this
Court while issuing notice in the matter and directed parties to maintain
status quo. Therefore, the petitioner continues in service.
Petitioner - Milind Bambal in Writ Petition No. 6868/2013
questions order of Scrutiny Committee dated 04.09.2013, invalidating caste
claim as belonging to 'Dhanwar' Scheduled Tribe. Said petitioner is born on
06.06.1969 and got caste certificate on 29.07.1985. He joined employment on
24.01.1995. His caste claim came to be referred on 23.03.2009, and has been
invalidated on 04.09.2013. This Court has while issuing notice in the matter on
24.12.2013, granted status quo and accordingly, Milind continues in employment.
Petitioner - Ku. Alka Mahure in Writ Petition No. 1802/2014, Judgment wp1802.14+5 questions order of Scrutiny Committee
dated 18.02.2014 invalidating her tribe claim as belonging to 'Dhangad'
Scheduled Tribe. She is born in 1974 and got caste certificate on 18.06.1993.
She got employment as 'Dhangad, Scheduled Tribe' candidate on 12.05.1993 with a
private School i.e. respondent nos. 2 and 3. After completion of probation, she
has been confirmed on 24.06.1995. Her caste claim was referred for the first
time to the Scrutiny Committee on 24.06.2013. This Court while issuing notice
in the matter on 08.04.2004, granted status quo, and therefore, she continues
in service.
Petitioner - Ajay Suryavanshi in Writ Petition No.3476/2013 is
born some time in the year 1979, and has obtained caste certificate as
belonging to "Thakur Scheduled Tribe" on 22.06.1998. He got
employment on 30.09.2000. Caste claim of petitioner was referred to the
Scrutiny Committee on 20.03.2003 and the same has been invalidated on
12.06.2013.
In Writ Petition No. 5892/2013, petitioner - Smt. Mangla Pawar is
born some time in the year 1961 and she got caste certificate showing her
belonging to "Thakur Scheduled Tribe" on 29.06.1981. She procured Judgment wp1802.14+5 employment on 08.02.1985 and her claim
was forwarded for verification and scrutiny on 30.09.2013 to the Scrutiny
Committee, i.e. almost after a period of 28 years, and the same has been
invalidated on 09.10.2003.
5. Limited controversy to be considered in all these matters is
whether judgment of Full Bench of this Court in case of Arun Vishwanath Sonone
.vrs. State of Maharashtra and others (supra), protects the employment of
present petitioners ?
6. Shri Bhandarkar, learned Counsel has taken us through the Full
Bench judgment in case of Arun Sonone (supra) , to point out the terms of
reference to Full Bench and how the Full Bench has proceeded to appreciate the
points having bearing on said reference. He argued that though most of the
decisions of High Courts or of Hon'ble Supreme Court have dealt with.
Halba Scheduled Tribe, principles laid down therein hold good
equally for other castes/tribes including, Thakur. He further submits that the
judgment of Full Bench is only clarificatory in nature and does not lay down
any new law. He submits that the category carved out as 'Special Backward
Category' (SBC) by the State Government can be seen in Government Resolution
dated 15.06.1995, however, the Hon'ble Apex Court Judgment wp1802.14+5 in judgment reported at 2012 (1) SCC
549 (Dattu Thakur .vrs. State of Maharashtra and others), has extended
protection even to a person who failed to establish his tribe claim as
belonging to Thakur Scheduled Tribe.
He points out that persons who failed to establish tribe claim got
full protection in terms of the Full Bench judgment in case of Arun Sonone
(supra). Precedent of Hon'ble Apex Court in case of R. Unnikrishnan and another
.vrs. V.K. Mahanudevan and others (2014) 4 SCC 434, as considered by the said
Full Bench in paragraph no.60 of its judgment, is also pressed into service by
him. He contends that unless and until it is shown that the person has obtained
caste certificate by practicing falsehood or by using fraudulent means, the
protection needs to be extended.
Subsequent Government Resolution dated 30.06.2004 is pressed into
service to show that it covers "all non-tribals". Appreciation of judgment
of Hon'ble Apex Court in case of Dattu Thakur .vrs. State of Maharashtra
(supra), is also relied upon by him. Judgment of Hon'ble Supreme Court in case
of Exe.E.EHV.C.Div.No.1 MSETCL Nagpur .vrs. Jyotsana Bondelal Shriwas and
others (Special Leave to Appeal (Civil) No. 12905/2013 dated 04.03.2014, is
also relied upon by him to urge that their protection has been extended to a
candidate who could not substantiate his claim as belonging to Thakur Scheduled
Tribe. He submits that protection to Thakur persons is,Judgment wp1802.14+5 therefore, a law under Article 141 of the Constitution of India.
7. Shri S.R. Narnaware, learned Counsel has mostly adopted the
arguments of Advocate Shri S.P. Bhandarkar. According to him, Full Bench
judgment in case of Arun Sonone .vrs. State of Maharashtra (supra), 4
categories have been carved. out Those who got employment prior to 15.06.1995,
and have been treated as SBC candidates, is the first category.
Second category is of 'non-tribals' covered under Government
Resolution dated 30.06.2004; Third category is till delivery of judgment by the
Hon'ble Apex Court in case of State of Maharashtra .vrs. Milind Katware, i.e.
till 28.11.2000; Fourth Category is of those appointed between 28.11.2000 till
18.10.2001 i.e. till coming into force of Act No.23 of 2001 with no condition
to produce validity in their appointment order. He further submits that after
18.10.2001, no employment can be procured without producing validity.
As petitioners before this Court have all been recruited before
judgment of the Hon'ble Apex Court in case of State of Maharashtra .vrs. Milind
Katware, they are entitled to be protected in the light of Full Bench judgment
in case of Arun Sonone .vrs. State of Maharashtra (supra). Shri Narnaware,
learned Counsel points out that petitioner Moreshwar in Writ Petition No.
1503/2011, has also obtained a certificate on 22.10.2010, which shows that Judgment wp1802.14+5 he belongs to Thakur, Scheduled Tribe.
Hence, fact that earlier certificate was given by an incompetent Authority is,
not very material. He submits that the Scrutiny Committee has in first
paragraph while recording reasons, found that caste certificate produced by
Moreshwar, has not been issued by the office of the Executive Magistrate,
Akola. He submits that therefore, caste certificate is found to be fake one
only technically. As petitioner has now procured caste certificate from
competent authority, it needs to be sent back to the scrutiny committee for its
verification. He is relying upon a judgment dated 29.11.2012 in Writ Petition
No.3214/2012 (Ku. Laxmi Sagar Bhurkunde .vrs. Divisional Caste Certificate
Scrutiny Committee and others), for said purpose.
8. In Writ Petition No. 1802/2014, Shri Narnaware, learned Counsel
submits that petitioner - Ku. Alka needs to be protected in the light of law as
laid down in 2010 (4) AIR Bom High Court reports 48 (Chief Executive Officer,
Z.P. .vrs. State of Maharashtra and others), where the Hon'ble Apex Court has found
that a candidate like her, who belongs to Special Backward Class (SBC), and
whose claim is accepted by the State Government as such, needs to be continued
in employment.
Judgment wp1802.14+5
9. In Writ Petition No. 6868/2013, Shri Narnaware, learned Counsel
adopts the same line of argument.
10. Shri R.S. Parsodkar, learned Counsel for the petitioner - Ku.
Sunita in Writ Petition No. 5766/2011, maintains same line of
argument.
11. Shri R.M. Chandurkar, learned Counsel in Writ Petition No
5178/2013 after giving relevant developments, submits that there is no finding
of any fraud or falsehood recorded against the petitioner in the matter.
12. Shri Rohit Deo, learned A.S.G.I., submits that protection in
employment is a concept evolved by judiciary and it is available only in three
cases. Those who belongs to S.B.C, need to be protected as per Government
Resolution dated 15.06.1995, others who are covered by judgment of Constitution
Bench in case of State of Maharashtra vs. Milind Katware, (AIR 2001 SC 393 = (2001) 1 SCC 4), also
need protection. Those who are not covered by the said Constitution Bench
judgment or Government Resolution dated 15.06.1995, can be granted protection
only if they satisfy the test laid down in case of R. Unnikrishnan and another
.vrs. V.K. MahanudevanJudgment wp1802.14+5 and
others (supra). He places strong reliance on paragraph no.52 of the judgment of
Full Bench. He further relies upon several other paragraphs and pointed out
that in paragraph no.55, the Full Bench has restricted consideration to S.B.C.
Persons. Lack of malafides as requirement of extending similar treatment looked
into in paragraph nos. 60 and 61 is, also pointed out by him. He submits that
all judgments proceed on consanguinity and even Full Bench in case of Arun
Sonone (supra), does not hold that the direction to protect in case of Dattu
Thakur (supra) given by the Hon'ble Apex Court was not under Article 142 of the Constitution of India. On the
contrary, he invites attention to the findings recorded in paragraph no.52 by
Full Bench that protection granted by the Hon'ble Apex Court was under Article 142,
recorded by the Division Bench, has not been upset. By pressing into service
paragraph no.66, he contends that the Full Bench did not widen the area or
field in which protection becomes available . Test applied in paragraph no.73
by the Full bench i.e., whether claim was fraudulent and whether there was any
confusion or uncertainty, are also highlighted by him.
13. Shri G.G. Mishra, learned Counsel appearing for Zilla Parishad
submits that Thakur is not recognized as Special Backward Category. He Judgment wp1802.14+5 further contends that the word
"non-tribal" in Government Resolution dated 30.06.2004, needs to be
understood narrowly in the background of the castes shown as SBC contained in
Government Resolution dated 15.06.1995.
Open category candidates or higher caste Thakurs who procure ST or
similar certificate and employment, are not eligible for protection.
14. Shri Bhandarkar, learned Counsel in reply arguments in Writ
Petition No. 2839/2013, submits that after adjudication of his caste claim by
the Scrutiny Committee, where claim is invalidated the person is rendered
casteless. Shri Narnaware, learned Counsel invites attention to paragraph no.
65[a] of Full Bench in case of Arun Sonone [supra], to state that it is not
restricted only to SBC. According to him, everybody who got caste certificate
as belonging to some backward or Scheduled tribe or Scheduled Caste category,
needs to be understood as a backward class candidate while implementing the
above mentioned Full Bench judgment.
15. Shri Deshpande, learned Counsel appearing for the Scrutiny
Committee in Writ Petition No.5766/2013 has submitted that it is basically for
the employer to oppose the claim of protection. He invites attention to orders
of the Hon'ble Apex Court in Special leave Petition No.14193/2011 Judgment wp1802.14+5 dated 02.06.2011 and judgment of
Division Bench of this Court in case of Dinesh Ramesh Thakur .vrs. State of
Maharashtra (2012 (4) Mh.L.J.
396), particularly paragraph no.37. He has also pointed out how
removal of area restriction was earlier considered by the Division Bench of
this Court in case of Dattu Thakur .vrs. State of Maharashtra and others (2010
(2) Mh.L.J. 494).
16. In Writ Petition No. 5178/2013, he invites attention to old
documents dated 31.03.1952, where in school admission register caste of one
Manbahelsingh s/o Jeharsingh has been recorded as 'Kshtriya'. He submits that
thus older documents relating to Laxmansingh, dated 24.03.1919 where caste has
been recorded as Thakur is, not decisive.
17. In Writ Petition No. 6868/2013, Shri Deshpande submits that
petitioner could not produce any documents to show that he belongs to 'Dhanwar'
Scheduled tribe. All old documents record caste as 'Dhangar' and there is no
scope for any confusion. He further states that when petitioner was called upon
to appear before the Scrutiny Committee, he chose not to appear and also did
not submit any explanation for his refusal to cooperate.
Finding of fraud reached by the Scrutiny Committee in paragraph
no. 7[b], Judgment wp1802.14+5 is also pressed into service by him.
18. Shri Mehadia, learned Counsel appearing for employer - Western
Coalfields Ltd., invited our attention to condition no. 4 in the appointment
order dated 24.01.1995 warning the petitioner Milind that his appointment was
provisional and in case of invalidation of caste claim , he would be terminated
without any notice, and that too, without prejudice to right of employer to
take further suitable action.
19. Opposing Writ Petition No. 1503/2011, Shri Deshpande, learned
counsel points out that certificate obtained by the petitioner - Moreshwar is
not issued by the competent Authority and, therefore, a fabricated one.
20. We will first deal with the question - Whether caste
certificate dated 26.04.1989 submitted for verification by petitioner Moreshwar
in Writ Petition No.1503/2011, can be said to be fabricated or fake one ?
It is not in dispute that the said certificate dated 26.04.1989
does not figure in records of Executive Magistrate, Akola. Division Bench of
this Court in Writ Petition No.3214/2012, on 29.11.2012 found that merely Judgment wp1802.14+5 because caste certificate is issued by
an Authority not possessing power to do so, caste claim cannot be said to be
invalid. Petitioner Moreshwar has on 22.10.2010 obtained a certificate from a
competent Authority namely Sub Divisional Officer, Akola which shows that he
belongs to Thakur Scheduled Tribe. Only question is, whether said certificate
needs to be sent back to the scrutiny committee for reconsideration. We find
that in the impugned order dated 24.04.2009 in paragraph no.8 the Scrutiny
Committee has also examined his caste claim on merit. It has called for the
vigilance report and also applied affinity test. Thus, merely because on
22.10.2010 the petitioner Moreshwar has obtained another caste certificate,
this exercise on merits by the Scrutiny Committee is not rendered nugatory. The
Scrutiny Committee has not recorded a finding that while obtaining caste
certificate, Moreshwar has practiced any fraud or falsehood.
21. Petitioner - Akla in Writ Petition No.1802/2014, has withdrawn
her claim as belonging to Dhangad Scheduled Tribe before the Scrutiny Committee
itself, by filing affidavit. She accepted that she belongs to Dhangar, Nomadic
Tribes and her parents erroneously recorded her caste as Dhangad. She accepted
the caste of her father as her caste. The scrutiny committee in vigilance found
that caste of applicant's father was recorded as Judgment wp1802.14+5 Dhangar, real sister of petitioner Ku.
Mangala has been given validity on 25.01.2013 as belonging to Dhangar, Nomadic
Tribes. Her brother Charandas is also given validity in 2005. Her other brother
Dilip has also been given same validity. In this matter the Scrutiny Committee
has not recorded a finding that petitioner while obtaining caste certificate
has played any fraud or falsehood.
22. In Writ Petition No. 6868/2013, the Scrutiny Committee has in
paragraph no.7[b] noted that the petitioner Milind obtained caste certificate
with malafide intention. However, this malafide intention is gathered because
of school and revenue records of petitioner, his father, his grand father and
great grand father, where caste was recorded as 'Dhangar'. It could not see any
documents pertaining to Milind himself, where caste has not been recorded as
Dhanwar. Caste certificate has been obtained when Milind was only 16 years old,
and therefore, by his parents, as such we are not in a position to hold that
petitioner Milind has practiced any falsehood while obtaining it.
23. In remaining matters also we have given the dates when caste
certificates were obtained. The scrutiny committee has not recorded any Judgment wp1802.14+5 finding of fraud or falsehood,
practiced by any of these petitioners.
24. In almost in all the mattes, caste certificates have been
obtained when petitioners were minor, by their guardian or parents. School
records of petitioner are not found to be tampered with or interpolated by the
scrutiny committee. Caste claims are invalidated because of discovery of old
documents which reveal the caste inconsistent with caste claim of petitioner.
However, the scrutiny committee has not brought on record any previous
knowledge thereof to any petitioner while obtaining caste certificate or while
entering the employment.
25. Full Bench judgment of this Court in case of Arun Sonone
(supra), practically covers entire field. Earlier Government Resolution dated
15.06.1995, is reproduced therein in paragraph no.57. Caste/Tribe Thakur,
Dhangar or Dhangad or Dhanwar, does not figure therein. Later government
resolution dated 30.06.2004 contains reference to this Government Resolution
dated 15.06.1995. Its relevant para is as under :
"(a) The non-tribals who have received recruitment promotion
in the government/semi-government services Judgment
wp1802.14+5 on the reserved seats
for the Scheduled tribes prior to 15.06.1995, should not be removed from
service or should not be demoted. They should be shown in the constituent to
which they belong. Henceforth, the reservation benefits entitled to that
particular constituent will be due to them and the vacated posts in this manner
should be filled from the tribal category."
The word 'non-tribals' used therein, therefore, needs to be
construed as covering those who find and also those who do not find mention in
government resolution dated 15.06.1995. Thus, those whose castes figure in
government resolution dated 15.06.1995 already got protection because of it. In
later government resolution dated 30.06.2004, the State Government could have
conveniently used the word "SBC" , if it wanted to confer benefit
only upon SBCs mentioned in GR dated 15.6.1995. However, it chose to employ a
word with wider sweep ie"non-tribal". Non-tribal therefore does not
point out only SBCs but it refers to all those who are not tribals but were
given a caste certificate as belonging to a tribe or a backward class. There
fore, it also covers others who do not figure in government resolution dated
15.06.1995. We need not to dwell more on this aspect as Hon'ble Full Bench has
in paragraph no.65 observed that after decision in case of Madhuri Patil and
another vrs. Additional Commissioner, Tribal Development (AIR Judgment wp1802.14+5 1995 SC 94), delivered by the Hon'ble
Supreme Court on 02.09.1994, by issuing government resolution dated 15.06.1995
and 30.06.2004, all the appointments and promotions made upto 15.06.1995,
against a post reserved for backward class category candidate have been
protected, and cannot be canceled. In paragraph no.66 relevant observations of
Full Bench show similar conclusions. In paragraph no.66[b], grant of protection
is found contingent upon finding of the scrutiny committee on caste claim.
Thus protection cannot be extended, if caste certificate is found
to be false or fraudulent by the Committee. If protection is granted, further
advantage of said caste certificate in terms of promotion or otherwise cannot
be taken after 28.11.2000 and if such benefit is taken after 28.11.2000, the
competent Authority can withdraw it.
26. Hon'ble Supreme Court in SLP 12905 of 2013
Exe.E.EHV.C.Div.No.1 MSETCL Nagpur .vrs. Jyotsana Bondelal Shriwas and others
decided on 4.3.2014 extended protection to candidate whose caste claim as
Thakur Schedule Tribe was invalidated , granted protection.
It found that in R. Vishwanath Pillai vs. State of Kerela & ors, - (2004) 2 SCC 105, the parents of
candidate belonged to "Nair Community" where as the said petitioner
had given his caste as " Vettuvari". In case Jyotsana Judgment wp1802.14+5 Bondelal Shriwas (supra) , petitioner
as also her father and sisters had caste certificates showing them as members
of Thakur Community".It also find that in Bank of India vs. Avinash D. Mandivikar & Others. - 2005 (7) SCC 690 , the documents were
manipulated to make a false claim. In present matters also, the Thakur
documents are consistent and there is no finding of any tampering or
interpolation in relation thereto.
27. After perusal of Full Bench judgment mentioned supra, we find
that merely because caste claim is invalidated, it cannot be said that the
person has obtained caste certificate by playing fraud or by practicing
falsehood. Dhangad or Dhanwar are both Scheduled Tribes while Dhangar is a
Nomadic Tribe recognized as such in State of Maharashtra. Thus the said
schedule tribes or nomadic tribe also enjoy social reservation. Though the
upper caste Thakur exists, when old documents of any Thakur whether backward or
forward, mention caste as Thakur, the affinity test is being used as the only
solution. Relevance of the affinity test in such matters and its use to
invalidate to caste claim has also been debated in several matters before this
Court. Protection envisaged by the Full Bench is to the candidates like
petitioners who applied for and got caste certificate as per law without
resorting to any wrong or unfair means. Though their casteJudgment wp1802.14+5 certificates need to be canceled, they
cannot be punished in the facts and circumstances further by denying protection
in employment in terms of Full Bench judgment mentioned supra. Those whose
caste claims either as Thakur or Dhangad or Dhanwar schedule tribe are
invalidated, may be extended such concession of protection in employment, if it
is seen that they have not participated in any falsehood or fraud, while
obtaining that caste certificate.
28. As none of the petitioners before us is found to have acted
with malice or indulged in any fraud or falsehood while obtaining caste
certificate, we find them entitled to protection in employment in terms of the
Full Bench judgment in case of Arun Sonone (supra).
29. Subject to petitioners filing an undertaking with the Registry
of this Court and with their employer, within a period of 6 weeks from today,
that neither he/she, nor his/her progeny shall claim any benefit and status as
scheduled tribe candidate, the employment of petitioners shall be protected in
terms of the Full Bench judgment mentioned above.
30. Subject to the undertaking as above, show cause notice dated Judgment wp1802.14+505.04.2013, issued
to petitioner Sanjay in Writ Petition No. 2839/2013 is accordingly quashed and
set aside.
31. Subject to the undertaking as above, termination order dated
30.09.2013 issued by the respondent no.2 to petitioner Ku. Sunita Bisen in Writ
Petition No. 5766/2013 is hereby quashed and set aside. She is reinstated back
in service without any back wages but with continuity and consequential
benefits. 32. In view of
above discussion, Writ Petitions are partly allowed.
Rule is made absolute in aforesaid terms with no order as to
costs.
JUDGE JUDGE
No comments:
Post a Comment