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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.5328 of 2004
Nilesh Prabhakar Jumle,
Aged 43 years, Occ.-Service,
R/o.-L-60, Vasant Nagar, Nagpur-22. .... Petitioner.
-Versus-
1] The Chairman,
Scheduled Tribe Caste Certificate Scrutiny Committee,
Giripeth, Nagpur.
2] The Establishment Officer,
Maharashtra State Electricity Board,
General Administrative Department, Dharavi Road,
Matunga, Mumbai. .... Respondents.
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Shri A.R. Ingole, Counsel for petitioner.
Shri V.P. Maldhure, Assistant Government Pleader for respondent
no.1.
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Coram : R. K. Deshpande &
Mrs. Swapna Joshi, JJ.
Dated : 02 nd August, 2017 ORAL JUDGMENT (Per R. K. Deshpande, J.) The petitioner was employed as a 'Lower Division Clerk' in the establishment of Maharashtra State Electricity Board on 16-10-1985 against the post reserved for Scheduled Tribe category. ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:38:12 :::
2 Judg. wp 5328.04.odt On 12-04-1994, the petitioner was promoted to the post of 'Assistant Computer Operator' and on 21-12-1996 further promotion to the post of 'Computer Operator' was granted. It seems that, all the promotions were in the post reserved for Scheduled Tribe category. This fact is disputed by the petitioner. Be that as it may, the petitioner produced caste certificate dated 02-10-1979 at the time of his appointment showing that he belongs to 'Kapadia Nayaka' which is a notified as Scheduled Tribe at Serial No.35 of the Constitution (Scheduled Tribes) Order, 1950. This certificate was sent to the Scrutiny Committee for verification. On 29-10-2004, the Committee has invalidated the caste claim and the said order is therefore the subject matter in the present petition. 2] The service of the petitioner was protected by way of an interim order passed by this Court on 09-11-2004 which was continued thereafter. The petitioner as on this date has completed about 32 years of service and he is aged about 56 years and due for retirement on completion of 58 years of service. 3] With the assistance of the learned Counsels appearing for the parties, we have gone through the order passed by the Scrutiny Committee. The petitioner produced 15 documents in support of his claim for 'Kapadia Nayaka' (Scheduled Tribe) category. Except one ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:38:12 ::: 3 Judg. wp 5328.04.odt document dated 21-12-1937 which shows the caste Kapadia Nayaka in the birth extract of male child born to Gopal, other documents showing case as 'Kapadia Nayaka' pertain to post independence period having no probative value. All these documents have been taken into consideration by the Scrutiny Committee. The Committee holds that the Police Vigilance Cell obtained the extract of school admission record in which the caste of the petitioner, his father, real paternal uncle and real paternal aunt is recorded as 'Shimpi'. The petitioner was called upon to furnish his explanation on such report and the response was that due to the tailoring occupation of his grand father and great grand father the caste 'Shimpi' is recorded in the school record. The Committee holds that while verifying the birth entry dated 8-2-1935 of male child showing the caste as 'Kapadia Nayaka'. The Police Vigilance Cell obtained information from the District Rehabilitation Officer, Collectorate Wardha to inform that there is no entry of village Amgaon (Ramji) of the year 1935-1936 in the register of Birth and Death verified by them and also there is no application regarding birth of a male child to Gopal Kapadia Nayaka. The Committee recorded the finding on the basis of Police Vigilance Cell that the birth entry dated 21-12-1937 produced by the petitioner appears to be doubtful. The Committee holds that the caste 'Shimpi' is separate caste included in the list of Other Backward Class at Serial No.133.
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4] We find that the findings of fact recorded by the Committee
are based upon the documentary evidence available on record and the application of affinity test, which the petitioner failed to satisfy. At any rate, the view taken by the Committee is a possible view of the matter and we do not find any perversity in recording such findings. The document regarding birth entry of male child on 21-12-1937 has been considered. The order, therefore, also does not suffer from any application of mind to any of the documents produced on record.
5] The learned Counsel for the petitioner submits that the petitioner has rendered about 32 years of service and is aged about 56 years and he is due for retirement on completion of 58 years of the age of superannuation. He, therefore, submits that the petitioner be granted protection on the basis of Government Resolution dated 15-06-1995 and similar other Government Resolution and the decision of the Hon'ble apex Court in the case of State of Maharashtra v. Milind, reported in (2001) 1 SCC 4. The learned Counsel appearing for the petitioner further submits that the respondents be prevented from withdrawing the benefits availed by the petitioner till this date.
6] On the basis of the recent decision of the Hon'ble apex Court
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in Civil Appeal No.8928 of 2015 [Chairman and Managing Director FCI and others v. Jagdish Balaram Bahira and others] which we have recently followed in Writ Petition No.3373 of 2002 (Dattakishor Jagannath Kumbhare v. State of Maharashtra through Secretary to Tribal Welfare Department, Mantralaya, Mumbai-32 and others) and connected matters, decided on 17-07-2017, it is not possible for us to grant protection in service or to prevent withdrawal of benefits which results in either violating the order passed by the Hon'ble apex Court or the provisions of Section 10 of the Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Mah. Act. XXIII of 2001). We have taken a view that the jurisdiction of this Court under Article 226 of the Constitution of India is restricted to judge the correctness and validity of the order passed by the Scrutiny Committee and not to protect the service or prevent withdrawal of benefits to violate the law laid down by the Apex Court. For the reasons recorded by us in the said decision, we do not find any substance in the claim for protection made by the petitioner.
7] We have already noted in paragraph 1 of this judgment that
the petitioner has denied that his initial appointment and also
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subsequent appointments by promotion were from the Scheduled Tribe category. According to the petitioner his appointment and promotions were as a candidate belonging to Open Category. The respondent no.2 shall be at liberty to consider this aspect of the matter. If it is found that the initial appointment and further promotions of the petitioner were from Open Category, this judgment shall not come in the way of the parties in continuing the petitioner in service.
8] In view of above, the writ petition is dismissed. Rule stands discharged. No order as to costs.
9] At this stage, the learned Counsel for the petitioner submits that the interim order passed by this Court protecting the service of the petitioner be continued for further period of 8 weeks so as to enable the petitioner to approach the Hon'ble apex Court. Similar request made by several other counsels in other matters is already rejected and therefore we do not find any reason to make an exception also in this case. The prayer is therefore rejected.
JUDGE JUDGE
Deshmukh
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