Deepak Shriram Kale vs The State Of Maharashtra, Through ...
2007 Latest Caselaw 734 Bom

JUDGMENT

R.C. Chavan, J.

1. Rule. By consent made returnable forthwith. Heard by consent of parties.

2. The petitioner, an employee of Bank of India, takes exception to the letters issued by the Bank requiring the petitioner to have his claim of belonging to "Kharia" (Scheduled Tribe) verified.

3. The petitioner claimed to belong to Kharia, Scheduled Tribe, and had secured employment with the respondent Bank on the basis of a certificate granted to him on 04.01.1982. The Collector had initiated an inquiry to ascertain the correctness of petitioner's claim and came to cancel the said certificate vide order dated 19.11.1984. The petitioner challenged the said order by filing Writ Petition No. 3504 of 1995, wherein, by judgment dated 18th December, 1997, this Court had directed Collector, Akola to decide "genuineness and correctness" of the caste certificate issued by Executive Magistrate, Akola on 04.01.1982. In pursuance of this order the Collector, Akola examined the matter once again and refused to alter the order cancelling petitioner's caste certificate.

4. This order of the Collector dated 31st March, 1998 was challenged by the petitioner in Writ Petition No. 1876 of 1998. The parties drew up minutes of order, in terms of which the petition was disposed of on 31.01.2003. The Collector was directed to decide genuineness and correctness of caste certificate dated 04.01.1982, issued by the Executive Magistrate, without going into question, whether the petitioner belongs to Scheduled Tribe Kharia or not| Accordingly the Collector examined the caste certificate and made necessary inquiries with the officer who had issued the certificate. By his order dated 01.01.2004, the Collector held that the caste certificate had been issued by Shri K.G. Nirale, the then Executive Magistrate, and that the certificate was genuine.

5. Thereafter the respondent Bank wrote to the petitioner to have his caste claim examined by producing relevant documents. The petitioner asked the respondent to accept decision of the Collector and this Court. However, the respondent reiterated that since the judgment of this Court and the order of the Collector do not decide the question whether the petitioner belongs to Scheduled Tribe or not, the petitioner has to get his caste claim verified from the Committee. The petitioner challenged this order by Writ Petition No. 4770/2004. This petition was dismissed as withdrawn on 27th July, 2005 by following order:

Shri Manohar, learned Counsel for the petitioner seeks permission to withdraw the petition with liberty to file representation to the respondent No. 3 Bank for protection of service of the petitioner in view of law laid down by the Apex Court in State of Maharashtra v. Milind and Ors. 2001 (1) Mh.L.J. 1 as well as decisions rendered by this Court and Government Resolutions. The learned Counsel prays that direction may be given to the respondent No. 3 to decide the representation on its own merits according to law laid down by the Apex Court and this Court within a stipulated period.

Shri Jaiswal, learned Counsel for respondent No. 3, states that if such representation is made, respondent No. 3 shall decide the same as per directions of this Court.

In the backdrop of the above referred facts, the petition is dismissed as withdrawn with liberty as prayed for. If petitioner makes a representation referred to herein-above within three weeks from today, the respondent No. 3 is directed to decide the same on its own merits according to law laid down by the Apex Court and this Court in this regard as early as possible and in any case not beyond the period of six weeks from the date of receipt of such representation. In the meanwhile, parties are directed to maintain status quo.

6. Thereafter the petitioner applied to the respondent for protection of his service by letter dated 16.08.2005 which is at Annexure-14. The petitioner had specifically given up his claim in respect of caste certificate dated 04.01.1982 and had stated that he will not claim any promotion or benefit on the basis of the said caste certificate. The Bank, however, again insisted that the petitioner should submit the documents for verification of his caste claim. Aggrieved thereby the petitioner has approached this Court by present petition seeking that the letters issued by the Bank should be quashed and that the subject should be held to have concluded by orders passed by this Court on 31st January, 2003.

7. On behalf of the respondent-Bank reply has been filed contending that the petitioner'scaste claim has not at all been verified so far. The Bank further pointed out that the petitioner had given up his caste claim. The petitioner could not be given benefit of notification issued by the State Government, since the State Government has no control over the conditions of employment of the petitioner. The Bank contended that no prejudice would be caused to the petitioner by submitting papers before the Caste Scrutiny Committee if he genuinely belongs to caste claimed by him. The respondent, therefore, prayed for dismissal of the petition.

8. I have heard learned Advocate Shri Naik for the petitioner, learned Advocate Shri Jaiswal for the respondents No. 3 and 4 as also learned A.G.P. Shri Deshpande for respondents No. 1 and 2.

9. The repeated forays of the petitioner to this Court to dodge scrutiny of his caste claim are less disturbing as compared to the attempt to mislead the Court which the petitioner has indulged in. The respondent Bank has pointed out that the very letters dated 26.04.2004, 19.05.2004 and 08.07.2004, which have been assailed in this petition, had been assailed by the petitioner in Writ Petition No. 4770 of 2004. The petitioner had stated in the prayer clause in the said petition that the subject had ended with the order of this Court dated 31st January, 2003. After having withdrawn this petition No. 4770/2004 the same prayer cannot obviously be made. Further, had the subject ended by order dated 31.01.2003, there would have been no occasion for the petitioner to approach this Court again and it would have been enough to pull up the bank for willfully disregarding judgment, if any, rendered in favour of the petitioner.

10. It may be recalled that while disposing of first petition No. 3504 of 1995 what Collector had been directed to do was to decide the "correctness and genuineness" of caste certificate dated 04.01.1982. But it seems that the petitioner decided to conveniently forget the correctness aspect in the order of this Court. While drafting minutes of order for seeking disposal of second Writ Petition No. 1876 of 1998 the petitioner sought to gloss over examination of correctness of the caste certificate as well. Minutes of order were craftily drafted to indicate that the Collector was to only decide about genuineness of the document, without going into the question whether the petitioner belongs to Kharia tribe or not. The minutes of the order also recite in an earlier sentence that the correctness of the certificate was also to be examined. Now, how correctness of certificate was to be examined without going into the question as to whether the petitioner belongs to Scheduled Tribe Kharia or not, may be known only to wise men, who drafted the minutes of the order. It is unfortunate that the respondent-employer did not realise what the respondent was committing to while agreeing to the minutes of the order. All the same, this jugglery would not help the petitioner since the petitioner came before this Court for the third round by filing Writ Petition No. 4770 of 2004 and withdrew that petition.

11. The contention of the learned Advocate for the petitioner that the question as to whether the petitioner belongs to Kharia Scheduled Tribe is already concluded by the certificate dated 04.01.1982 has to be rejected, because even at the time when such certificate was issued, it required verification. The learned Advocate had himself placed reliance on the judgment of this Court in Raju v. Establishment Officer, MSEB reported at 2003 (4) Mh.L.J.7 81. It may be seen that even in that case it was not held that a caste certificate issued prior to coming into force 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 (hereinafter referred to as "Caste Certificate Act") was not required to be verified. The judgment itself would show that the caste certificate was required to be verified by Director of Social Welfare, Maharashtra State, Pune and his decision was subject to an appeal before the Commissioner. Since the petitioner' scaste certificate dated 04.01.1982 had not been subjected to any verification the petitioner cannot contend that it should not now be subject to scrutiny as per provisions of Caste Certificate Act, since now, after the act has come into force, the authority to verify and scrutinise the caste certificate vests in the Caste Scrutiny Committee established under the Act.

12. In any case, after giving up the caste claim by withdrawing Writ Petition No. 4770/2004 by seeking only protection of service, and applying to the respondent for only seeking protection of service by application dated 16.08.2005, this volte-face of the petitioner, whereby the petitioner wants to fall back on the claim of belonging to Kharia Scheduled Tribe, shutting off inquiry into truth of such claim by indulging in jugglery of words, cannot at all be countenanced.

13. In view of this, we see no merits in the petition and hence, it is dismissed. Rule discharged.