Priyanka Balmukund Khodke Alias ... vs State Of Maharashtra Through Its ...
2003 Latest Caselaw 947 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. R.D. Rane, learned Additional Government, Pleaders, appears and waives services of notice of rule on behalf of the respondents.

2. In the facts and circumstances, and with the consent of parties, the matter is taken up for final hearing.

3. This petition is filed by the petitioner for a writ of certiorari quashing and setting aside an order dated October 21, 2002 passed by the Committee for Scrutiny and Verification of Tribe Claims, Nagpur Division, Nagpur, respondent No. 2 herein (Committee for short). A further relied is prayed restraining the Deputy Controller of Rationing (Establishment), respondent No. 3 herein, from giving effect to or taking any action in pursuance of an order passed by respondent No. 2 herein.

4. The case of the petitioner is that she belongs to Halba Community, Scheduled tribe. The certificate was issued on July 27, 1988 by the Executive Magistrate, Nagpur. On the basis of the said certificate, she applied to the Maharashtra Public Service Commission ('MPSC', for short) for appointment to the post of Clerk-cum-Typist (Marathi) under the Reserved Category of Scheduled Tribe. She appeared for the competitive examination held by MPSC, got herself selected and after going through all formalities, her name was recommended by MPSC to the General Administration Department, Mantralaya, and she was appointed on the post of Clerk-cum-Typist by an order dated January 15, 1995 (Exhibit 'A' to the petition). It is her case that thereafter, her case was referred to the Committee in February, 1996. The petitioner was then promoted to the post of Senior Clerk in December, 1998, and at present also, she is working on the said post.

5. The petitioner stated that the Police Inspector of the Vigilance Cell examined the school record of the petitioner and her grandfather and other relatives and obtained materials adverse to the petitioner. Respondent No. 2-Committee, therefore, issued a notice on September 27, 2002 to the petitioner, calling upon her to offer her explanation as to what she had to say in the matter. The petitioner filed her reply to the inquiry report, and asserted that she belonged to Scheduled Tribe. The petitioner was then directed to appear before the Committee, and accordingly, the petitioner appeared before the Committee. Finally, however, by the order impugned in the petition, the claim of the petitioner was negatived, and it was held that she did not belong to Halba Community, Scheduled Tribe, and the certificate was ordered to be cancelled and confiscated. The petitioner, thereafter, has approached this Court.

6. It was contended by the learned counsel for the petitioner that the order passed by respondent No. 2-Committee is illegal, unlawful and contrary to law. It was submitted that the constitution of Committee was not legal, valid and in accordance with the provisions of the 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 Certificate Act, 2000 (Maharashtra Act XXIII of 2001) ("the Act", for short), and hence, the action taken by the Committee cannot be said to be in accordance with law. It was also submitted that the inquiry report submitted by the Vigilance Officer was vitiated because the Research Officer, having intimate knowledge in identifying tribal community, was not associated during the inquiry. Finally, it was submitted that the action of respondent No. 3 cannot be said to be in consonance with law, inasmuch as the Caste Certificate produced by the petitioner was verified and she was confirmed in service. After undue and unreasonable period, it is not open to respondent No. 3 to terminate the services of the petitioner.

7. The learned counsel for the respondents, on the other hand, supported the order passed and action taken by the respondents. It was submitted that after considering the relevant documentary and other evidence on record, the Committee invalidated the certificate issued in favour of the petitioner by the Executive Magistrate, nagpur, and the petitioner cannot make grievance against such an action. After the certificate was invalidated, consequential action had to be taken by respondent No. 3, as the petitioner was appointed on the basis that she belonged to Halba Community, Scheduled Tribe. Once it had been held that the said certificate was not issued in consonance with law, and was liable to be cancelled and accordingly cancelled, the petitioner cannot claim any benefit on the basis of such certificate and appointment given by respondent No. 3. It was, therefore, submitted that the petition is liable to be dismissed.

8. We may also refer to an affidavit-in-reply filed by Research Officer and Member of Committee dated March 10, 2003, wherein it was stated that the case of the petitioner was referred to the Committee by her employer. The petitioner and her father appeared before the Committee, and their statements were recorded. The petitioner also filled in the questionnaire. Meanwhile, the Police Vigilance Cell submitted its report, which was furnished to the petitioner, and she was called upon to submit her say on that report. The petitioner was then called upon to remain present or personal hearing, and she appeared with her husband before the Committee, and was fully heard. The Committee evaluated the documents furnished by the petitioner in the light of socio-cultural traits, characteristics, ethnic linkage, affinity test, Police Vigilance Report, etc., and recorded its findings vide an order dated October 21, 2002. Since the petitioner was admittedly appointed on the post reserved for Scheduled Tribe, in the light of decision in Madhuri Patil, the action was taken, which could not be objected by the petitioner. It was stated by the deponent that if a person does not belong to Scheduled Tribe, succeeds in getting an appointment, it would be grabbing the benefits of service from a person who is otherwise eligible to such benefit and, thus, guilty of commission of fraud on the Constitution.

9. Regarding Government Resolution dated June 15, 1995, the deponent stated that in the light of the decision of the Supreme Court in Madhuri Patil, the Government Resolution has lost its efficacy, Reliance, in this connection, was also placed on a judgment and order dated March 21, 2002 in Writ Petition No. 946 of 2001, Rajesh Gajanan Nagpur v. The State of Maharashtra and Ors. and also on Milind Katware.

10. Now, so far as the order passed by respondent No. 2 is concerned, the Committee took into account "all relevant documentary evidence", as also other materials placed before it. Considering the decisions of the Supreme Court in the light of the evidence and materials before the Committee, it came to the conclusion that the petitioners did not belong to Halba community.

11. The learned counsel for the petitioner mainly relied upon the fact that even if it is held that the petitioner did not belong to Halba Community, she is entitled to the protection in the light of Government Resolution dated June 15, 1995 issued by the General Administration Department of the Government of Maharashtra. The counsel also relied upon the decision of the Supreme Court in State of Maharashtra v. Milind Katware and Ors., (2001) 1 SCC 4.

12. In our opinion, the contention of the petitioner cannot be upheld. Reading the order of respondent No. 2-Committee impugned in the petition, it is clear that documents which had been produced by the petitioner and on which reliance was placed, were considered by the Committee. A copy of the Police Vigilance Report was also furnished to the petitioner, and the petitioner had filed her reply on the said report. The petitioner was also called for personal hearing which she attended. The Committee noted that the petitioner had stated that due to weaving occupation, the caste of her great grandfather was recorded as Koshti. The Committee, however, noted that it was not correct, inasmuch as the caste 'Koshti' was separate and included in the list of O.B.Cs. at Sr. No. 79 published by the Government of Maharashtra. Considering the directions issued by the Apex Court in Kum. Madhuri Patil v. Additional Commissioner Tribal Development and Ors., , as also of this Court (Nagpur Bench) in Vandana D/o. Narayan Sonkusare v. State of Maharashtra and Ors., (1998) 2 MhLJ 12, the Committee was of the view that the petitioner did not belong to Halba, Scheduled Tribe.

13. The Committee also evaluated the documents submitted by the petitioner in the light of socio-cultural traits, characteristics, ethnic linkage, affinity test, Police Vigilance Report, etc., and held that the claim of the petitioner could not be upheld.

14. In our considered opinion, the action of the Committee cannot be said to be illegal, improper or otherwise objectionable. In accordance with the practice, the case or the petitioner was referred to the Committee,and the Committee, after following the procedure laid down in Madhuri Patil, and complying with the principles of natural justice, considered all relevant documents and materials placed before it,and recorded a finding that the petitioner did not belong to Halba Community, Scheduled Tribe. Such a finding is a finding of fact, and cannot be interfered with in exercise of extra-ordinary jurisdiction under Article 226 of the Constitution.

15. Regarding Government Resolution dated June 15, 1995, and protection thereunder, it is clear that such a policy-decision has to be read in the light of the statutory provisions and the object which is sought to be achieved. While dealing with such a case, we will have to bear in mind the provisions of Maharashtra Act XXIII of 2001. We have an occasion to consider the provisions of the Act in Mohan Parasnath Goswami v. Committee for Scrutiny of Caste Certificates and Ors., . We have held that on the basis of report of the Scrutiny Committee and the orders passed, appropriate action can be taken by the authorities. Reading the provisions of the Act, it is clear that when a certificate is false or fake, it would be an offence, and penalty can be imposed. We may, however, make it clear that such action can be taken after following the provisions of the Act. But keeping in mind the relevant statutory provisions, it cannot be contended that no action of termination of service of the petitioner can be taken.

16. In the light of the statutory provisions and the observations of the Supreme Court in Madhuri Patil, and subsequent decisions in our opinion, the prayer of the petitioner to consider her case on the basis of Resolution dated June 15, 1995 cannot be accepted, and is rejected.

17. For the foregoing reasons, the petitioner cannot claim protection under Resolution dated June 15, 1995.

18. In view of the above facts and circumstances, and in the light of decisions referred to above, in our opinion, the petitioner has no case, and the petition deserves to be dismissed, and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier stands vacated. In the facts and circumstances, however, there shall be no order as to costs.

19. The learned counsel for the petitioner prays that ad-interim relief granted earlier, which continues till today, may be continued for some more time so as to enable the petitioner to approach the Supreme Court. In our opinion, prayer is reasonable. Ad-interim relief will be continued for four weeks from today.

20. Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.