Bombay High Court
Smt Surayya Shaheen Gous ... vs The State Of Maharashtra & Others on 18 December, 2009
Bench: S.B. Deshmukh, Shrihari P. Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 17 OF 2008
Smt Surayya Shaheen Gous Mohiuddin ...Petitioner
VERSUS
The State of Maharashtra & others
ig ...Respondents
.....
Shri A.S.Golegaonkar, advocate and Shri R.J.Godbole, advocate,
for the petitioner
Smt. V.A.Shinde, A.G.P.for respondent nos. 1, 3 and 5.
Shri U.S.Malte, advocate for respondent no.2
Smt. Manjusha Deshpande, advocate for respondent no.4
.....
CORAM : S.B.DESHMUKH
AND
SHRIHARI P.DAVARE, JJ.
DATE OF RESERVING
THE JUDGMENT : 16.12.2009
DATE OF PRONOUNCING
THE JUDGMENT : 18.12.2009
J U D G M E N T : (Per Shrihari P. Davare, J.)
1 Rule. Rule is made returnable forthwith. With the
consent of the learned counsel for the parties, taken up for final
hearing.
2 The petitioner has filed present petition under Article
226 of the Constitution of India challenging the order dated
29.11.2007 passed by respondent no.2- Scheduled Tribe Caste
Certificate Verification Committee, invalidating the social status
claim of the petitioner as Tadvi Scheduled Tribe.
3 Respondent no.1 herein is the State of Maharashtra
through the Secretary, Tribal Development Department,
Mantralaya, Mumbai - 32; respondent no.2 herein is the
Scheduled Tribe Caste Certificate Verification Committee
represented through its Chairman/Director, Aurangabad Division,
Aurangabad; whereas respondent no.3 is the Taluka Executive
Magistrate, Tahsil Office, Aurangabad. Respondent no.4 is the
Municipal Corporation, Aurangabad through the Municipal
Commissioner; whereas respondent no. 5 is the Deputy
Superintendent of Police of Vigilance Cell attached to respondent
no.2.
4 It is the contention of the petitioner that respondent no.
3 issued caste certificate in favour of the petitioner on 31.8.1989
declaring that the petitioner herein belongs to Tadvi Scheduled
Tribe at Sr. No. 13. A copy of the said certificate is annexed at
Exh. 'A' (page 27). Thereafter the petitioner came to be selected
as Clerk in the office of respondent no.4 on 10.10.1990 against
the post reserved for Scheduled Tribe category and copy of the
said order dated 10.10.1990 is annexed at Exh. 'F' (page 32).
Thereafter the petitioner's caste certificate was sent to
respondent no.2 committee for verification purpose, but the social
status claim of the petitioner as Tadvi Scheduled Tribe was
rejected by respondent no.2 committee by ex-parte order on
27.3.1996.
5 Being aggrieved and dissatisfied by the said order
dated 27.3.1996 by respondent no.2 committee, the petitioner
herein preferred Writ Petition No. 2490 of 1996 before this court,
copy of which is annexed at Exh. 'G" (page 34) and this court
passed an order on 1.4.2005 in the said writ petition and thereby
quashed and set aside the order dated 27.3.1996 passed by
respondent no.2 committee and remanded back the matter to
respondent no.2 committee with directions to respondent no.2 to
take the decision on merits and in accordance with law afresh as
expeditiously as possible within a period of four months from the
date of the said order and simultaneously the petitioner was
directed to remain present before respondent no.2 committee on
19.4.2005 to enable respondent no.2 committee to fix up the
schedule of hearing.
6 However, it is the contention of the petitioner that
thereafter respondent no.2 committee passed the order on
19.8.2005 and again invalidated social status claim of the
petitioner as Tadvi Scheduled Tribe without serving the copy of
the Vigilance Cell report upon the petitioner and without
conducting petitioner's interview. The petitioner submitted that
even the said order dated 19.8.2005 was passed by respondent
no.2 committee ex-parte. Copy of the said order dated 19.8.2005
is produced at Exh. 'H' (page 38).
7 Being aggrieved by the said order dated 19.8.2005, the
petitioner preferred Writ Petition No. 7352 of 2005 before this
court and challenging the order dated 19.8.2005 passed by
respondent no.2 committee and again this court passed an order
on 8.10.2007 in the said petition and quashed and set aside the
order dated 19.8.2005 passed by respondent no.2 committee
invalidating the caste claim of the petitioner and again remanded
the matter back to respondent no.2 committee with directions to
respondent no.2 committee to decide the matter of caste claim of
the petitioner by 30.11.2007 strictly in accordance with law and
merits and simultaneously directed the petitioner to appear
before respondent no.2 committee on 15.10.2007 and respondent
no.2 committee was directed to serve the copy of the Vigilance
Cell report to the petitioner on that day itself and opportunity was
given to the petitioner to file reply thereto within 15 days and
further directed to fix up the date on 31.10.2007 and the
petitioner was directed to remain present before respondent no.2
committee on the said date and copy of the said order is annexed
at Exh. 'I' (page 46).
8 Thereafter respondent no.2 committee conducted the
hearing on 30.10.2007 and decided the social status claim of the
petitioner as Tadvi Scheduled Tribe by order dated 29.11.2007
and thereby negatived the claim of the petitioner as Tadvi
Scheduled Tribe and invalidated the said social status claim of
the petitioner and the said order has been impugned by the
petitioner in the present petition.
9 Learned counsel for the petitioner canvassed that on
the date of hearing I.e. 30.10.2007, the petitioner appeared
before respondent no.2 committee and submitted a set of six
documents, which include three important documents I.e. (1) Date
of Birth and bona fide certificate of father of the petitioner,
namely Shri Gl. Gouse Mohiuddin s/o Gl. Mohiuddin. The said
certificate was issued by Head Master, Zilla Parishad,
Multipurpose High School, Aurangabad. It shows that as per
School General Admission Register, there is entry of tribe as,
'Tadvi' and the said entry was taken at the time of admission,
which was given in the year 1337-38 Fasli I.e. 1927 A.D., which is
the oldest document on record; (2) School Leaving Certificate,
issued by the Head Master, Zilla Parishad, Multipurpose High
School, Aurangabad in favour of the father of the petitioner, which
shows entry of tribe as Tadvi; and (3) School record of the
petitioner's brother, namely Shaikh Saleem Ahmed Ghous
Moinuddin, which shows entry of tribe as Tadvi. However, it is the
grievance of the petitioner that the entire set of documentary
evidence was rejected by respondent no.2 committee on the
flimsy grounds.
10 It is also argued that the impugned order dated
29.11.2007 passed by respondent no.2 committee is not reasoned
order and same is not in accordance with law.
11 Learned counsel for the petitioner further canvassed
that the Vigilance Cell, who conducted the inquiry under the
directions of respondent no.2 committee was not headed by the
Senior Deputy Superintendent of Police and all the members of
the said Vigilance Cell did not conduct the inquiry in respect of
social status claim of the petitioner herein and the inquiry was
conducted by the constable, and therefore, the said inquiry is
vitiated and the impugned order passed by respondent no.2
committee on 29.11.2007 basing upon the Vigilance Cell report, is
illegal and same is required to be quashed and set aside.
12 Learned counsel
ig Shri Malte for respondent no.2
opposed and countered the present petition vehemently and at
the out set submitted that the burden of proof to prove the social
status claim of the petitioner as Tadvi Scheduled Tribe was upon
the petitioner, but the petitioner has miserably failed to prove the
said claim before respondent no.2 committee. It is also submitted
by the counsel for respondent no.2 committee that the Vigilance
Cell report was served upon the petitioner and she was given full
opportunity to reply the same and to put forth her claim before
respondent no.2 committee and thereafter respondent no.2
committee passed the impugned order dated 29.11.2007 and
hence there is no lacuna in the impugned order passed by
respondent no.2 committee. According to the learned counsel for
respondent no.2 committee, the impugned order is a reasoned
order and claim of the petitioner has not been rejected on the
flimsy grounds as alleged.
13 As regards grievance of the petitioner that Vigilance
Cell was not headed by the Senior Deputy Superintendent of
Police as per Rule 10 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 and Maharashtra Scheduled Tribe (Regulation of Issuance
and Verification of) Certificate Rules, 2003 (hereinafter referred to
as, "the Rules of 2003"). Learned counsel for respondent no.2
committee submitted that the said submission bears no
substance. It is further submitted by the counsel for respondent
no.2 committee that the inquiry was conducted by the Police
Inspector and not by constable as alleged by the petitioner and it
is further submitted that all the four members of the Vigilance Cell
are in no way expected to visit the claimant and make inquiry and
grievance of the petitioner in that respect also bears no
substance.
14 In the said context, learned counsel for respondent no.2
relied upon the judgment of this court delivered by Single Judge
at Nagpur in the case of Chhaya Namdeorao Binekar vs State of
Maharashtra and others, reported at 2003 (1) Bom.C.R. 689.
15 We have perused the contents of the present petition,
its annexures, original file of the petitioner maintained by
respondent no.2 committee in respect of social status claim of the
petitioner and the impugned order passed by respondent no.2
committee on 29.11.2007 and also considered the submissions
advanced by learned counsel for the parties anxiously and at the
out set it is seen that respondent no.2 committee has referred
and considered the six documents produced by the petitioner in
respect of her social status claim in the said order and it is further
seen that respondent no.2 committee has also given reasons for
rejecting the social status claim of the petitioner as Tadvi
Scheduled Tribe by the said documents and hence there is no
substance in the grievance made by the petitioner in that respect.
16 As regards the submission of the petitioner that the
date of birth and bona fide certificate of the petitioner's father
produced at Exh. 'D', which discloses the caste Muslim Tadvi,
wherein it is allegedly mentioned that the petitioner's father was
bona fide student in the said school I.e. Zilla Parishad,
Multipurpose High School, Aurangabad in Class 1 in 1337-38 Fasli
I.e. 1927 A.D., the counsel for respondent no.2 committee
pointed out that said certificate was issued on 14.1.1991 and
hence, it cannot be considered as conclusive proof prior to
Presidential Order, 1950.
17 In the said context, we perused the original file in
respect of social status claim of the petitioner maintained by
respondent no.2 committee and found a certified copy of the
admission register issued by the Head Master, Multipurpose High
School, Aurangabad, apparently collected by the Vigilance Cell
during the course of inquiry, wherein there does not appear to be
any column of the caste and there appears to be an endorsement
in front of the name of the father of the petitioner namely, Gl.
Gouse Mohiuddin Gl. Mohiuddin at Sr. No. 50/393 that TC No. 201
of 1973 was issued on 28.11.1994 and writing "Tadvi Muslim"
appears to be written thereupon. The said writing "Tadvi Muslim"
appears to have been written in the column of remarks, that too
on 28.11.1994, and not of prior to presidential order, which
clinches the issue in controversy and sustains fatal blow to the
case of the petitioner herein.
18 As regards the grievance of the petitioner that all the
members of the Vigilance Cell did not visit the petitioner and did
not make inquiry in respect of social status claim of the
petitioner, learned counsel for the petitioner was unable to point
out any provision that all the four members of the Vigilance Cell
were expected to visit the claimant/petitioner and to make
inquiry in respect of the social status claim of the petitioner, and
hence, there is no substance in the said grievance made by the
learned counsel for the petitioner.
19 Besides that, it is not in dispute that the Vigilance Cell
report was given to the petitioner and full opportunity was given
to the petitioner to file her reply thereto, as well as personal
hearing was given to the petitioner by respondent no.2 committed
and thereafter respondent no.2 committee has passed the
impugned order on 29.11.2007 and on careful perusal of the said
order, we are of the considered view that respondent no. 2
committee has dealt with the documents produced by the
petitioner in support of her social status claim aptly and rejected
the said documents as the proof to establish her social status
claim as Tadvi Scheduled Tribe and it also appears that
respondent no. 2 committee has passed the reasoned order and
invalidated the social status claim of the petitioner as Tadvi
Scheduled Tribe rightly, and therefore, no interference therein is
warranted under the extra ordinary jurisdiction of Article 226 of
the Constitution of India.
20 In the result, present petition bears no substance and
same is devoid of any merits, and therefore, same stands
dismissed. Rule is discharged accordingly. In the facts and
circumstances of the case, there shall be no order as to costs.
(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)
