Sanjeevkumar Rajdharrao More vs State Of Maharashtra And Ors.
2007 Latest Caselaw 297 Bom

JUDGMENT

Borde R.M., J.

1. The petitioner claims to be belonging to Tokre Koli', a Scheduled Tribe. It is the case of the petitioner that for seeking employment, he obtained a certificate certifying that he belongs to Tokre Koli', a Scheduled Tribe, which was referred to the Scrutiny Committee for verification in the year 1994. It appears that the petitioner appeared for the State Civil Services' Examination held in the year 1992. He was qualified in the preliminary examination and was called upon to appear for main examination. The petitioner got through the main examination held in the year 1992 and was called for the interview and after undergoing the oral test successfully, the petitioner was selected for the post of Tahsildar along with several other candidates. The Tribe claim of the petitioner was required to be referred to the Committee for verification. As such, he was called upon to submit documents in support of his claim. It appears that the matter which was referred to the Committee for verification of the social status remained undecided for a considerable period and, therefore, the petitioner approached this Court by filing Writ Petition No. 4078/95 seeking a direction for early disposal of his status claim.

2. This Court, by an order dated 8.1.1996, directed the Scrutiny Committee to decide the tribe claim of the petitioner within a period of four weeks from the date of receipt of writ of this Court by the Committee. It appears that the Scrutiny Committee invalidated the caste claim of the petitioner. As such the petitioner again approached this Court challenging the decision rendered by the Scrutiny Committee, by filing a Writ Petition Bearing No. 2875/96. The writ petition came to be disposed of by the Division Bench (Coram: A.B. Naik and V.G. Munshi, JJ.) by order dated 8.8.2003. This Court allowed the writ petition and quashed the order dated 15.2.1996 passed by the Committee invalidating tribe claim of the petitioner. This Court remitted back the matter to the Scrutiny Committee for deciding the status claim of the petitioner in accordance with the observations made in the order, within a period of three months from the date of first appearance of the petitioner before the Committee. The petitioner was directed to appear before the Committee on 18.8.2003.

3. According to the petitioner, he did appear before the Committee on 18.8.2003. It is further case of the petitioner that he did receive the notice calling upon him to appear before the Committee on 9.1.2004, 23.1.2004 and 13.2.2004. The petitioner contended that he tendered applications stating the reason that he was not keeping good health and, therefore, was unable to appear before the Committee. As such, the petitioner was unable to appear before the Committee on any of the aforesaid dates. It is further case of the petitioner that respondent No. 2 Committee, without informing petitioner the next date of hearing, decided the tribe claim behind his back and without affording an opportunity of hearing. According to him, he placed on record of the Committee several documents and further wanted to file additional documents. However, the Committee proceeded to decide the matter in his absence. It is also the grievance of the petitioner that the Committee did not consider the documentary evidence placed by him on record in its proper perspective.

4. Initially, after presentation of this petition, the Division Bench of this Court, on the request made by the Respondents, granted adjournment and directed the parties to maintain status quo till then by order dated 19.8.2004. The order of status quo was further continued for a period of six weeks from 28.12.2004. It appears from the Order Sheet that the petition was listed on 20th March, 2006 for pronouncement of the judgment and the Court required as clarification from the learned Counsel for the parties as to whether the cut off date, as specified in Government Resolution dated 15th June, 1995 has been extended. After hearing the learned Counsel for the parties on the point, the learned Counsel for the petitioner informed the Court that he may be granted an opportunity of citing certain judgments as well as for placing on record copy of the Kalelkar Backward Classes Commission report. The Court, as such, directed that the matter be not treated as part heard and granted adjournment till June, 2006. It appears from record that thereafter the matter came to be adjourned from time to time.

5. We have heard the learned Counsel for the petitioner Shri Talekar as well as Shri M.S. Deshmukh, learned Counsel for respondent-Committee and Shri K.B. Choudhari, learned A.G.P. for the State on 23.3.2007.

6. The learned Counsel for the petitioner has made a grievance that in fact no appropriate opportunity of hearing was given by the Committee and as such the petitioner could not place before the Committee all the relevant documentary evidence as well as according to the Counsel for the petitioner, the petitioner was not able to personally represent before the Committee because of the lack of opportunity afforded to him.

7. We have perused the order passed by the Committee on 24.6.2004. The Committee has recorded in its order that the petitioner was directed to appear before the Committee on 18.8.2003, and the Committee was directed to decide the tribe claim of the petitioner within a period of three months from the date of first appearance of the petitioner i.e. upto 17.10.2003. The Committee has recorded in its order its regret and further observed that due to non cooperative behaviour of the petitioner, the matter was prolonged and the Committee was unable to decide the matter within the time frame as directed by the High Court and the Committee was required to seek further time by filing Civil Application on 14.1.2004. It is further recorded that the vigilance cell has submitted its report to the Committee on 29.12.2003. The report was transmitted to the petitioner. However, the petitioner has not furnished any explanation to the Committee as regards vigilance cell inquiry. It is further observed that the petitioner was directed to appear before the Committee for personal hearing on 18.1.2004, 23.1.2004, 13.2.2004,29.5.2004,31.5.2004,17.6.2004 and 24.6.2004. The petitioner or his father did not appear for personal hearing on the prescribed dates i.e. 9.1.2004, 23.1.2004, 13.2.2004, 31.5.2004, 17.6.2004 and 29.6.2004.

8. It is further noted in the order that the petitioner had tendered an application on 12.1.2003 requesting to grant two months time to submit more documents and had tendered two applications on 13.2.2004 mentioning two different reasons; (i) due to ill health, he is unable to appear before the Committee; and (ii) requested to grant three months time to submit more documents. It is further noted that the petitioner had tendered an application on 18.6.2004 after the date of hearing. He was afforded further opportunity by adjourning the matter, but he did not avail the same. The petitioner had knowledge about the date prescribed in the matter i.e. 24.6.2004. However, he did not avail the said opportunity and did not remain present. In these circumstances, the Committee had to decide the matter.

9. We have perused the record made available by the learned Counsel for respondents. From the record, it appears that the petitioner was directed to appear before the Committee on 18.8.2003, in view of the directions issued by this Court. There are two applications on record seeking adjournment for three months with a view to produce additional documents. In one of the applications of the same date, the petitioner has expressed his inability to appear before the Committee because of his ill health. There is another application on record dated 13.2.2004 seeking adjournment. Similarly, the petitioner had placed on record an application for adjournment on 18.6.2004 wherein a reason is mentioned that the date prescribed in the matter was 17.6.2004, however, he did not receive the intimation in time and as such he is making an application. From the perusal of 'Roznama', it is evident that the petitioner remained absent on the dates prescribed in the matter i.e. on 9.1.2004, 23.1.2004, 13.2.2004, 31.5.2004, 17.6.2004 and 24.6.2004. It does appear from the record that the petitioner received the copy of the vigilance cell report. However, he did not file any objection to the said report. We are satisfied, on perusal of the record, that the petitioner did not avail the opportunities and for the reasons best known to himself kept himself away from the inquiry proceedings. The petitioner did not prosecute the inquiry diligently and as such, for his own lapse, he has to blame nobody else but to himself.

10. It is note worthy that the petitioner has secured employment in the State Civil Services as the petitioner was appointed as Tahsildar by an order dated 29.11.1996 and he is continued in service till today. The petitioner is successful in prolonging the matter in respect of determination of his caste claim for more than eleven years. The petitioner is holding a promotional post of Sub-Divisional Officer, which is prescribed as an authority for issuance of Caste Certificates under 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 'the Act of 2000'). It cannot be said, therefore, that the petitioner is unaware of the procedural aspects regarding the inquiry. An inference can be reasonably drawn on perusal of the record that the petitioner was interested mainly to prolong the matter as he was already receiving the service benefits on the basis of his social status as Tokre Koli', a Scheduled Tribe and was continued in employment.

11. The argument advanced by the learned Counsel for the petitioner that the petitioner was not given appropriate opportunity of being heard during the inquiry proceedings and the same came to be decided in absence of him, holds no water and the argument requires to be rejected.

12. The Committee has passed a well reasoned order invalidating the tribe claim of the petitioner. The Committee, after making reference to the report of the Vigilance Cell, has noted that:

(i) The copy of the admission extract issued by the Head Master, Zilla Parishad High School, Deulgaon, in respect of admission, which is dated 11.7.1975 mentions the caste of the petitioner as Tokre Koli'. It is observed that the said entry is recorded in different ink.

(ii) The admission extract issued by Head Master, Zilla Parishad Central Primary School wherein the date of admission is shown as 2.8.1949 in respect of admission of Rajdhar Vana More, father of the petitioner, wherein the caste is mentioned as 'Hindu Koli'.

(iii) The admission extract of the uncle of the petitioner Laxman Vana More mentions the caste as 'Hindu Koli' in the admission extract dated 1.6.1955.

(iv) Similarly, admission extract dated 24.6.1960 in respect of another uncle of the petitioner Narayan Vana More indicates the caste as Hindu Koli'.

(v) The admission extract in respect of Lalchand Vana More, uncle of the petitioner, indicates the date of admission as 26.6.1948 and mentions the caste as 'Hindu Koli'.

(vi) So also the admission extract in respect of uncle of the petitioner Ramchandra Vana More dated 3.7.1942 mentions the caste as 'Hindu Koli'.

13. On perusal of the vigilance cell report, it transpires that the vigilance officer has personally verified all the record and has collected the copies of relevant documents and tendered report to the Committee accordingly. It is also evident from the record that on the first page of service book of Rajdhar Vana More, father of the petitioner, the entry in respect of his caste is recorded as 'Hindu Koli', which is later on corrected as Tokre Koli'.

14. Considering all the relevant documents referred to above, the Committee has come to the conclusion that the petitioner has failed to substantiate his claim that he belongs to Tokre Koli', a Scheduled Tribe by producing cogent documentary evidence. The old record in respect of admission of his father and uncles clearly mentions the caste as Hindu Koli'. The documents produced on record by the petitioner are of recent origin. As such the Committee has rightly refused to place reliance on the same.

15. We do not find any infirmity in the reasoning adopted by the Committee. The Committee has taken a reasonable view of the matter, which does not call for interference in the writ jurisdiction of this Court under Article 226 of the Constitution.

16. The petitioner has produced on record of this writ petition, certificates of validity issued in favour of Sunil Baliram Jadhav, Vinod Bhagwan Sonawane, Ramdas Khandu Borse and contended that those persons, in whose favour validity certificates have been issued, are related to the petitioner and as such, according to the petitioner, the claim of the petitioner will have to be considered favourably. The argument advanced by the petitioner cannot be accepted for the reasons, firstly that the validity certificates, on which reliance is placed in the writ petition, were not produced before the Committee, while the status claim of the petitioner was being scrutinised by the Committee. Secondly, all these persons, in whose favour the validity certificates have been issued, are not from the blood relation or relations from paternal side of the petitioner. As such, the said evidence cannot be gone into, which is being placed for the first time on record of this writ petition.

17. The petitioner has also placed reliance on the judgments in respect of validation of the claim of one Govind Ratan Saindane and Devram Sitaram Suryavanshi. Those persons are also not from the blood relations of the petitioner or are not related to the petitioner from his paternal side. As such, the evidence in the form of judgments, which are placed on record, cannot be considered for the first time by the writ Court.

18. The Committee has also considered the aspect of knowledge of the petitioner in respect of traits, characteristics, customs and culture of Tokre Koli', Scheduled Tribe. The Committee has formed an opinion that the petitioner has failed to prove his ethnic linkage towards Tokre Koli', a Scheduled Tribe. The Committee, on the ground of:

(i) Failure on the part of the petitioner to prove ethnic linkage towards Tokre Koli', a Scheduled Tribe;

(ii) Failure on the part of the petitioner to produce on record old documentary evidence prior to 1950; and

(iii) Failure on the part of the petitioner to establish his claim in general, has invalidated the claim put forth by the petitioner. We do not find any infirmity in the reasoning adopted by the Committee.

19. The petitioner has secured benefits on the basis of tribe claim and has secured employment with the Government. The petitioner is holding a post of the rank of Deputy Collector at present. The petitioner has derived the service benefits for more than eleven years. As the petitioner has failed to substantiate his claim in respect of his social status, all the benefits, which are accrued to the petitioner and which are derived by the petitioner, are required to be withdrawn forthwith. In view of the provisions of Section 10 of the Act of 2000, the petitioner is not entitled to secure benefits and as such, the protection, which the petitioner has secured in the matter of employment, is required to be withdrawn forthwith.

20. We may refer to the observations made by the Apex Court in the reported judgment of (Kum. Madhuri Patil v. Additional Commissioner, Tribal Development Development) :

13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee.

In view of these observations, the benefits accrued to the petitioner and secured by the petitioner are required to be withdrawn forthwith.

21. The petitioner has, in the petition, relied upon two Government Resolutions, i.e. dated 15.6.1995 and 24.7.1998. The Government Resolution dated 15.6.1995 prescribed that the class of employees, who secured employment on the basis of the certificate certifying them to be belonging to Scheduled Tribe category mentioned in the Government Resolution dated 7.12.1994, their services are liable to be protected even if they failed to submit a validity certificate. It also prescribes that such a class of employees, who secured employment or promotion prior to 15.6.1995, are required to be protected in the matter of employment and promotion.

22. By Government Resolution dated 7.12.1994, certain sub-castes of Koshti, Koli and Munnerwar, Govari and Mana are categorised as Special Backward Class and the benefits in the matter of employment and education are extended to the said category.

23. By a corrigendum issued on 24.7.1998 to the Government Resolution dated 15.6.1995, certain amendments are directed to be carried out in para 4 of the earlier Resolution dated 15.6.1995.

24. It is also evident from the Order Sheet dated 20th March, 2006 (Coram: P.V. Hardas and Vasanti A. Naik, JJ.) that the matter was fully heard by the Division Bench and it was listed for pronouncement of the judgment and at that stage, a query was made by the Court in respect of extension of the cut off date as specified in Government Resolution dated 15.6.1995. It was further directed not to treat the matter as part heard and the same was adjourned.

25. It is shocking to note that a Government Resolution Bearing No. BCC 1394/ Prakra 68/94/ 16-B dated 15th March, 2000 is alleged to have been issued by the State Government wherein signature of S.R. Kale, Chief Secretary, Maharashtra State appears. It is stated that the said Government Resolution is a fabricated one and the State Government has not issued any such Government Resolution. It is noted in the said Government Resolution that the benefits in respect of employment, as prescribed under Government Resolution dated 15.6.1995, are extended and the extended date as "14th July, 1998" is mentioned in the last paragraph of the said Government Resolution. The clarification is issued by the Government in its Circular dated 20th March, 2002. It also further prescribes that such of those employees, who have secured the benefits in the matter of employment or promotion, are required to be stripped of the said benefits which were accrued to such class of employees. The Circular further prescribes initiation of appropriate action against such class of employees.

26. The act of issuance/ publication of the Government Resolution dated 15th March, 2000, which on inquiry, has been transpired to be a forged and fabricated document, amounts to a fraudulent act, so also deriving any service benefits, relying upon such fabricated Resolution, also amounts to derivation of the benefits in fraudulent manner. The term "fraud" has been extensively dealt with by the Apex Court in the case of [Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors.) . It would be advantageous to refer to following paragraphs from the said reported judgment.

9. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, if is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. See (Vimla (Dr.) v. Delhi Administration) Dr. Vimla v. Delhi Administration, 1963(Supp.2) S.C.R. 585 and (Indian Bank v. Satyam Fibres (India) (P) Ltd.) .

10. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. See (S.P. Chengalvaraya Naidu v. Jagannath .

11. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. See (Ram Chandra Singh v. Savitri Dew) .

27. The learned A.G.P. has placed on record the Circular dated 20th March, 2002 along with affidavit-in-reply. We feel that it is a matter of great concern that employment benefits are claimed on the basis of forged and fabricated Government Resolutions. The matter is to be viewed with all seriousness. Although the Government Resolution dated 20.3.2002 contains a direction regarding taking appropriate steps for withdrawing the benefits accrued to such employees, we deem it appropriate further to direct the State authorities to carry out the said exercise within a specified time frame and further issue a direction to keep this Court informed regarding the steps taken in this regard pursuant to the directions. It is also necessary for the State authorities to investigate as to how forged and fabricated Government Resolution is originated from Mantralaya. It is necessary to direct the respondent No. 1-State to hand over investigation of the matter in respect of issuance of the forged and fabricated Government Resolutions to appropriate investigating agency.

28. We, therefore, issue following directions:

(i) We hereby direct the respondent No. 1 to hand over investigation in the matter in respect of issuance of forged and fabricated Government Resolutions for securing benefits in employment, to a investigating agency or if necessary, a specified team may be entrusted with the investigation of crime.

(ii) We further direct respondent No. 1-State to take appropriate steps for initiating action including criminal prosecution as against such of those employees who have knowingly received benefits on the basis of the aforesaid forged Government Resolution, of course, after affording them an appropriate opportunity of tendering their explanation,

(iii) We hereby direct respondent No. 1-State to withdraw service benefits gained by such of those Government employees on the basis of forged and fabricated Government Resolution dated 15th March, 2000.

29. For the reasons stated above, we do not find that the petition filed by the petitioner deserves any favourable consideration and the same is rejected accordingly. However, we direct the respondent No. 1 to take steps and act in accordance with the directives issued in foregoing paragraphs of this judgment and report the progress of investigation/ steps taken to this Court within a period of six months.

30. The learned Counsel for the petitioner prays for continuation of interim relief for a further period of four weeks.

31. We do not find any reason to grant any such extension. Prayer is rejected.

32. An authentic copy of this order be supplied to the learned A.G.P.