Bombay High Court
Ku. Sakshi D/O Rajdendrakumar ... vs State Of Maharashtra, Through Its ... on 30 October, 2015
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
(I) WRIT PETITION NO.6889 OF 2014
Shri Badalsingh s/o Bharosa
Rawale, aged about 55 years,
occupation : service, r/o
Plot No.604, Ashirwad Nagar,
Hudkeshwar Road, Nagpur. ig ... Petitioner
- Versus -
1) Divisional Caste Certificate
Scrutiny Committee No.3,
Administrative Building No.2,
Civil Lines, Nagpur Division,
Nagpur.
2) Executive Engineer & Competent
Officer, Maharashtra State
Electricity Distribution Company Ltd.,
Rahate Colony, near Ramkrushna
Math, Congress Nagar Division,
Nagpur. ... Respondents
-----------------
Shri S.R. Narnaware, Advocate for petitioner.
Smt. B.H. Dangre, Government Pleader for respondent
no.1.
Shri A.D. Mohgaonkar, Advocate for respondent no.2.
----------------
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(II) WRIT PETITION NO.2591 OF 2014
Ku. Sakshi d/o Rajendrakumar
Satankar, aged : major, occupation :
student, resident of Plot No.48,
Pande Layout, Anandmangal
Apartment, Khamla, Nagpur-25. ... Petitioner
- Versus -
1) State of Maharashtra, through
its Secretary, Ministry of Tribal
Development Department,
Mantralaya, Mumbai - 400 032.
2) Divisional Caste Certificate
Scrutiny Committee No.3,
Nagpur Division, Administrative
Building No.2, Civil Lines,
Nagpur.
3) Yeshwantrao Chavan College of
Engineering, Hingna Road,
Wanadongri, Nagpur, through
its Principal.
4) Rashtrasant Tukdoji Maharaj
Nagpur University, Nagpur,
through its Registrar. ... Respondents
----------
Shri P.C. Madkholkar, Advocate for petitioner.
Smt. B.H. Dangre, Government Pleader for respondent nos.1
and 2.
Shri A. Dubey, Advocate for respondent no.3.
---------
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(III) WRIT PETITION NO.6586 OF 2014
Sau. Ramkali w/o Bisram Zamarkar,
age 31 years, occupation :
household, r/o Ambadi, Taluq
Dharni, District Amravati. ... Petitioner
- Versus -
1) Scheduled Tribe Certificate
Scrutiny Committee, Amravati
Division, Amravati.
2) The Collector, Amravati,
District Amravati.
3) The Sub-Divisional Officer,
Melghat, Dharni, District
Amravati. ... Respondents
----------
Shri P.R. Agrawal, Advocate for petitioner.
Smt. B.H. Dangre, Government Pleader for respondent
nos.2 and 3.
----------
Date of reserving the judgment : 31/8/2015
Date of pronouncing the judgment : 30/10/2015
CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
DATED : OCTOBER 30 , 2015
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JUDGMENT (PER P.N. DESHMUKH, J.) :
Rule returnable forthwith. Heard finally by
consent of learned Counsel for the parties.
2) All these petitions are disposed of by this
common judgment as substantial question involved
therein to a large extent is common.
3) In Writ Petition No.6889/2014, petitioner has
challenged order dated 17/1/2014 passed by
respondent no.1 Caste Scrutiny Committee invalidating
his caste claim of belonging to `Mahar' (Scheduled
Caste) and prayed for quashing of the same.
In Writ Petition No.2591/2014, petitioner has
challenged order dated 1/8/2013 passed by respondent
no.2 Caste Scrutiny Committee invalidating her caste
claim of belonging to `Mahar' (Scheduled Caste) and
prayed for quashing of the same.
In Writ Petition No.6586/2014, petitioner has
5 wp6889.14,2591.14 & 6586.14
challenged order dated 4/7/2013 passed by respondent
no.1 invalidating her caste claim of belonging to
`Korku' (Scheduled Tribe) and prayed for quashing of
the same.
4) In nutshell, it is the case of petitioner
Badalsingh s/o ig Bharosa Rawale in Writ Petition
No.6889/2014 that he belongs to `Mahar' (Scheduled
Caste) on the basis of voluminous documents of his
father and forefathers pertaining to pre-independence
period submitted by him and he has obtained his
primary education at Nagpur. He has relied upon
School Leaving Certificate indicating his said caste.
According to him, Executive Magistrate, Nagpur in the
year 1981 had issued caste certificate on the basis of
such documents. He was appointed on 8/1/1981 as
Helper by respondent no.2 against the post reserved
for Scheduled Caste category candidate and was
thereafter promoted from time to time and was given
higher pay scale. On completion of 32 years of
6 wp6889.14,2591.14 & 6586.14
service, petitioner was required to produce documents
in order to prove his caste claim of belonging to
`Mahar' (Scheduled Caste) and accordingly he
produced all such necessary documents. The Police
Vigilance Cell conducted enquiry and submitted report
in favour of the petitioner. However, respondent no.1
invalidated the caste claim of the petitioner on the
ground that he could not submit the documents
pertaining to the period prior to 10/8/1950 of State of
Maharashtra and that petitioner and his forefathers
originally hailed from village Shingdai, Tahsil and
District Rajnandgaon (Chhatisgarh State). According to
petitioner, though respondent no.1 has admitted that
petitioner belongs to `Mahar' (Scheduled Caste), the
dispute is only regarding caste claim of petitioner in
the Maharashtra State.
5) Shri Narnavare, learned Counsel for petitioner
Badalsingh, submits that on being appointed in the
year 1981 and on completion of 32 years of service,
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the petitioner deserves protection of his service. The
learned Counsel has invited our attention to interim
order dated 9/3/2015 passed by this Court vide which
petitioner was granted interim relief in terms of prayer
clauses (ii) and (iii) of the petition, i.e. stay to the
impugned order dated 17/1/2014 passed by
respondent no.1ig Caste Scrutiny Committee and
protection of service of petitioner.
6) In Writ Petition No.2591/2014, it is the case of
petitioner Ku. Sakshi d/o Rajendrakumar Satankar that
after passing 12th Standard examination, she was
admitted in First Year Bachelor of Engineering
(Information Technology) course in CAP round against
the seat reserved for Scheduled Caste candidate in
respondent no.3 College. When she was prosecuting
her studies, proposal for verification of her caste
certificate was sent to respondent no.2 Committee to
which she submitted documents in support of her caste
`Mahar' (Scheduled Caste). The documents produced
8 wp6889.14,2591.14 & 6586.14
by the petitioner are referred in para 4 of the petition.
On submitting such documents and on obtaining Police
Vigilance Cell report, the Caste Scrutiny Committee
found that the petitioner failed to file any document in
respect of showing her relation with her grandfather
and rejected her caste claim by passing the impugned
order dated 1/8/2013 on the ground that she has failed
to demonstrate that her father and forefathers were
residing in State of Maharashtra prior to 1950 and and
also failed to prove her relation with forefathers, i.e.
great-grand parents.
7) Shri Madkholkar, learned Counsel for
petitioner Ku. Sakshi, has submitted that queries put to
petitioner related to pre-independence period and
father and fore-fathers of petitioner being illiterate
knowing no importance of documents, could not
maintain the documents and as such, it was practically
impossible to produce any such document, which
required petitioner to file affidavit before respondent
9 wp6889.14,2591.14 & 6586.14
no.2 Committee stating therein that though
petitioner's father was born in C.P. and Berar, she and
her family migrated to Nagpur (Maharashtra) and are
presently residing at Nagpur. It is further submitted
that father and forefathers of petitioner are originally
residents of Navargaon in Bhandara District in
Maharashtra State and on growing family needs,
forefathers of petitioner migrated to Betul and started
residing there. It is thus submitted that the ground
that petitioner's forefathers were not residing in State
of Maharashtra prior to 1950 is unsustainable for the
reason that place where petitioner's forefathers were
residing, i.e. village Sadar, District Betul was originally
part and parcel of Central Provinces and Berar of which
Nagpur was capital. It is contended that after
reoganisation and formation of State of Maharashtra in
the year 1960, the said region became part and parcel
of State of Madhya Pradesh. As such, claim of
respondent no.2 Caste Scrutiny Committee that
petitioner failed to produce any document establishing
10 wp6889.14,2591.14 & 6586.14
stay of her father and forefathers in Maharashtra prior
to year 1950 is incorrect as State of Maharashtra was
formed in the year 1960. It is further submitted that
petitioner was protected by interim order dated
24/6/2014 passed by this Court in terms of prayer
clauses `C' and `D' of the petition, thereby staying the
impugned order dated 1/8/2013 passed by respondent
no.2 and protecting her studies of B.E. Course
including declaration of result during pendency of the
petition.
8) In Writ Petition No.6586/2014, it is the case of
petitioner Sau. Ramkali w/o Bisram Zamarkar that she
was born in the year 1971 at village Amulla Kala, Taluq
Khaknar, District Burhanpur (Madhya Pradesh) and
belongs to `Korku', which is recognized as Scheduled
Tribe in State of Maharashtra and Madhya Pradesh.
The petitioner got married on 15/5/1994 with
Shri Bisram Zamarkar, who also belongs to `Korku'
(Scheduled Tribe) and is a permanent resident of
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village Ambadi, Taluq Dharni, District Amravati. On
4/9/2001, Sub-Divisional Officer, Melghat, Taluq Dharni,
District Amravati issued certificate to petitioner as
belonging to `Korku' (Scheduled Tribe).
9) Shri Agrawal, learned Counsel for petitioner
Sau. Ramkali, has submitted that in the year 2012,
petitioner filed her nomination form for contesting
election of Panchayat Samiti, Dharni from Shirpur
constituency reserved for Scheduled Tribe (woman)
and she came to be elected. On 4/7/2013, the
respondent no.1 Caste Scrutiny Committee rejected
her caste certificate dated 4/9/2001, which fact came
to the notice of petitioner for the first time in March
2014 when she received communication from the
office of Divisional Commissioner, Amravati by which
she was directed to remain present for hearing in the
said office as her caste claim was invalidated by the
Caste Scrutiny Committee. It is submitted that
petitioner is protected by interim order passed by this
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Court on 30/1/2015 in terms of prayer clause (ii) of
petition, thereby staying the effect and operation of
the impugned order dated 4/7/2013 passed by
respondent no.1 Caste Scrutiny Committee.
10) Thus, according to learned Counsel Shri
Narnaware, the caste claim of petitioner in Writ
Petition No.6889/2014 is invalidated only on the
ground that petitioner and his forefathers though
originally hailed from village Shingdai, Tahsil and
District Rajnandgaon (Chhatisgarh State), the
petitioner could not submit documents pertaining to
the period prior to 10/8/1950 of the State of
Maharashtra to respondent no.1 Caste Scrutiny
Committee. It is further submitted that petitioner
belongs to `Mahar' (Scheduled Caste) and there is no
dispute regarding status of the caste claim, but dispute
is only regarding State. In support of his contentions,
learned Counsel has relied upon the judgment of this
Court in the case of Hitesh Dasiram Murkute vs.
13 wp6889.14,2591.14 & 6586.14
State of Maharashtra and others (2007 (5) Mh.L.J.
454).
11) Shri Madkholkar, learned Counsel for
petitioner in Writ Petition No.2591/2014, has
contended that after sending petitioner's proposal for
caste verification, ig though petitioner submitted
necessary documents to respondent no.2 Caste
Scrutiny Committee in support of her claim of
belonging to `Mahar' (Scheduled Caste), respondent
no.2 Caste Scrutiny Committee after calling Police
Vigilance Cell's report has held that petitioner failed to
file any document showing her relation with
grandfather Mahadeo and also failed to establish her
relations with great grandfather Rama Ranu, resident
of Navargaon, District Bhandara, which queries,
according to learned Counsel, are relating to pre-
independence period and petitioner's parents being
illiterate failed to maintain any document and as such,
petitioner filed affidavit before the Caste Scrutiny
14 wp6889.14,2591.14 & 6586.14
Committee stating therein that though petitioner's
father was born in C.P. and Berar, she and her family
migrated to Nagpur (Maharashtra) and are presently
residents of Nagpur. In spite of that, respondent no.2
Caste Scrutiny Committee rejected the caste claim of
the petitioner finding her to have failed to demonstrate
that she and ig her forefathers were residents of
Maharashtra prior to 1950 and also on the ground that
she failed to prove her relation with her forefathers.
12) Similarly, it is submitted by Shri Agrawal,
learned Counsel for petitioner in Writ Petition
No.6586/2014, that petitioner was born on 1/1/1971 at
village Amulla Kala, Taluka Khaknar, District
Burhanpur (Madhya Pradesh) and belongs to `Korku',
which is recognized as Scheduled Tribe in State of
Maharashtra as well as State of Madhya Pradesh. It is
contended that after her marriage in 1994, she started
residing with her husband at village Ambadi, Taluka
Dharni, District Amravati and in spite of Sub-Divisional
15 wp6889.14,2591.14 & 6586.14
Officer, Melghat, Taluka Dharni, District Amravati
issuing caste certificate in favour of petitioner as
`Korku' (Scheduled Tribe), respondent no.1 by the
impugned order dated 4/7/2013 rejected the caste
claim of the petitioner and cancelled the caste
certificate issued by the Sub-Divisional Officer contrary
to the settled law.
13) The learned Counsel for the petitioners, in
nutshell, have contended that it was only after
re-organization of States, some parts of C.P. and Berar
went to newly formed State of Maharashtra and some
parts merged in State of Madhya Pradesh. It is
submitted that even after re-organization of States,
caste `Mahar' continues to be recognized as Scheduled
Caste in State of Maharashtra and State of Madhya
Pradesh and, therefore, the case of petitioners would
be squarely covered by the decision of the Apex Court
in the case of Sudhakar Vithal Kumbhare vs. State
of Maharashtra and others {(2004) 9 SCC 481} and
16 wp6889.14,2591.14 & 6586.14
judgment of this Court in Bharat s/o Bhimrao
Malakwade vs. Divisional Caste Certificate
Scrutiny Committee No.3, Nagpur and another
{(2013(5) Mh.L.J. 946).
14) Smt. Dangre, learned Government Pleader,
by filing affidavit-in-reply, has opposed respective
petitions and supported the impugned orders. She
has contended that burden to prove caste is on the
petitioners and thus, it was necessary for the
petitioners to support their caste claims, which they
have failed to do so by not placing necessary
documentary evidence and as such, have failed to
establish that they and their forefathers are originally
residents of State of Maharashtra prior to 1950. In
support of her contentions, learned Government
Pleader has relied upon the judgment in the case of
Bankimchandra Makanbhai Patel vs. State of
Maharashtra and others (2006 (2) Mh.L.J. 664)
wherein it is held that applicant, who is original
17 wp6889.14,2591.14 & 6586.14
resident of a particular State, will get caste benefits of
that State and benefits of caste are not admissible in
migrated State. She has also relied upon the judgment
of Full Bench of this Court in Shweta Santalal Lal vs.
State of Maharashtra and others (2010 (2) Mh.L.J.
904) and submitted that migrant is not entitled for
benefit of his caste in the State of migration and he
can enjoy caste benefits only in the State of his origin.
The learned Government Pleader has by referring to
the case of Madhuri Patil vs. Additional
Commissioner, Tribal Development Department
(AIR 1995 SC 94) contended that each case has to be
decided on its truthfulness and merits and that Caste
Scrutiny Committee had verified the caste claim of
each petitioner on its own merits as per directions
issued by the Hon'ble Apex Court and has also relied
upon the judgments of the Hon'ble Apex Court in Marri
Chandra Shekhar Rao vs. Dean, Seth G.S.
Medical College and others {(1990 (3) SCC 130)
and Action Committee on Issue of Caste
18 wp6889.14,2591.14 & 6586.14
Certificate to Scheduled Castes and Scheduled
Tribes in the State of Maharashtra and another
vs. Union of India and another (1994 (5) SCC 244)
and submitted that since petitioners have failed to
make out their case, the Caste Scrutiny Committee has
rightly issued impugned orders. It is, therefore, prayed
that the petitions are devoid of merits and may be
dismissed.
15) On perusal of impugned order in Writ Petition
No.6889/2014 issued by respondent Caste Scrutiny
Committee, it is revealed that petitioner to prove his
caste as `Mahar' had produced caste certificate issued
by the Executive Magistrate, Nagpur, his School
Leaving Certificates for Class III and VII, copy of service
book and abstract of birth register of Rajnandgaon
District (Chhatisgarh State) in respect of one son and
one daughter having been born to father of petitioner,
which documents are duly considered by the Caste
Scrutiny Committee and it has found that documents
19 wp6889.14,2591.14 & 6586.14
at serial nos. 2, 3 and 4 in the impugned order are
pertaining to the period after 1950 and other
documents do not establish caste claim of petitioner
nor these documents establish that father, grand-
father and great grand-father were residents of
Maharashtra prior to 1950 or from that year. The
Vigilance Cell's ig report establishes that father of
petitioner is original resident of village Shingdai, Tahsil
and District Rajnandgaon (Chhatisgarh State) and no
evidence could be obtained to establish that prior to
1950, petitioner or his father was resident of
Maharashtra. The Vigilance Cell's report was
communicated to petitioner. However, in spite of that,
petitioner could not produce any material to establish
his caste claim and as such, as there was no evidence
establishing fact of petitioner or his father, grand-
father or great grand-father being resident of
Maharashtra prior to 1950, but since documents
established them to be original residents of Chhatisgarh
State, caste claim of petitioner came to be rejected.
20 wp6889.14,2591.14 & 6586.14
16) In Writ Petition No.2591/2014, the caste claim
of petitioner as belonging to caste `Mahar' (Scheduled
Caste) was sent for verification to Caste Scrutiny
Committee and to establish caste claim, petitioner had
produced caste certificate issued by the Deputy
Collector, Nagpur, her School Leaving Certificates
issued by Bipin Krishna Bos Vidya Bhavan, Nagpur and
Saraswati Vidyalaya, Nagpur and School Leaving
Certificate of her father issued by Mission Primary
School, Sadar, Taluq and District Betul (Madhya
Pradesh). The Caste Scrutiny Committee having
considered documents along with Vigilance Cell's
report found that there was no sufficient evidence to
establish that father, grand-father or great grand-
father of petitioner was resident of Maharashtra prior
to 1950 or from that year and thus, on the basis of
available documents, rejected the caste claim of the
petitioner as she could not establish that her family
was residing in Maharashtra State prior to 1950 and as
per Government Resolution dated 24/8/1995, for
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Scheduled Caste or Other Backward Class persons,
who migrated from other State to State of
Maharashtra, concessions on account of their caste are
not available.
17) Similarly, in Writ Petition No. 6586/2014, in a
detailed order ig passed by the Caste Scrutiny
Committee, on having duly considered documents
submitted by petitioner, which are mentioned at serial
nos. i to viii, the Caste Scrutiny Committee has
concluded that -
"the applicant has migrated from Madhya
Pradesh to the Maharashtra State after the
date of notification, i.e. 6/9/1950. Hence, she
is not entitled to get the concession of
Scheduled Tribe in Maharashtra State. She is
entitled to get a Scheduled Tribe certificate in
Migrant's format C-1. She can be issued a
Caste Certificate in the form of migrant only
after her producing the Caste Certificate of
her father. The applicant did not produce the
Scheduled Tribe certificate issued to her
father or grand-father by the concerned
22 wp6889.14,2591.14 & 6586.14
Competent Authority of Madhya Pradesh
State, i.e. the competent Authority in whose
jurisdiction they were residing on the date of
Notification."
The Caste Scrutiny Committee thus cancelled and
confiscated the caste certificate issued by the Sub-
Divisional Officer,ig Melghat, Taluq Dharni, District
Amravati and as such, held that petitioner is not
entitled for concessions of Scheduled Tribe in State of
Maharashtra since migrated from State of Madhya
Pradesh to Maharashtra after 6/9/1950.
18) In the case of Sudhakar Vithal Kumbhare
(cited supra), the Hon'ble Apex Court has observed
that where any particular area of the country is
required to be given protection is a matter, which
requires detailed investigation having regard to the
fact that both Pandhurna in District Chhindwara and
the part of the area of Chandrapur District (State of
Maharashtra) at one point of time belonged to the
23 wp6889.14,2591.14 & 6586.14
same region and under the Constitution (Scheduled
Tribes) Order, 1950 as it originally stood, the tribe
"Halba" or "Halbi" of that region, may be given the
same protection. The Hon'ble Apex Court also held
that in a case of this nature, the degree of
disadvantages of various elements, which constitute
the input for recognition as a Scheduled Tribe, may not
be totally different. It would be convenient to
reproduce the relevant observations of the Hon'ble
Apex Court appearing in paragraph No.5 as under :
"But the question which arises for consideration
herein appears to have not been raised in any
other case. It is not in dispute that the Scheduled
Castes and Scheduled Tribes have suffered
disadvantages and been denied facilities for
development and growth in several States. They
require protective preferences, facilities and
benefits inter alia in the form of reservation, so as
to enable them to compete on equal terms with
the more advantaged and developed sections of
the community. The question is as to whether the
appellant being a Scheduled Tribe known as
Halba/Halbi which stands recognized both in the
24 wp6889.14,2591.14 & 6586.14
State of Madhya Pradesh as well as in the State of
Maharashtra having their origin in Chhindwara
region, a part of which, on State's reorganization,
has come to the State of Maharashtra, was
entitled to the benefit of reservation. It is one
thing to say that the expression "in relation to
that State" occurring in Article 342 of the
Constitution of India should be given an effective
or proper meaning so as to exclude the possibility
that a tribe which has been included as a
Scheduled Tribe in one State after consultation
with the Governor for the purpose of the
Constitution may not get the same benefit in
another State whose Governor has not been
consulted; but it is another thing to say that when
an area is dominated by members of the same
tribe belonging to the same region, which has
been bifurcated, the members would not continue
to get the same benefit when the said tribe is
recognized in both the States. In other words, the
question that is required to be posed and
answered would be as to whether the members of
a Scheduled Tribe belonging to one region would
continue to get the same benefits despite
bifurcation thereof in terms of the States
Reoganization Act. With a view to find out as to
25 wp6889.14,2591.14 & 6586.14
whether any particular area of the country was
required to be given protection is a matter which
requires detailed investigation having regard to
the fact that both Pandhurna in the District of
Chhindwara and a part of the area of Chandrapur
at one point of time belonged to the same region
and under the Constitution (Scheduled Tribes)
Order, 1950 as it originally stood the tribe
Halba/Halbi of that region may be given the same
protection. In a case of this nature, the degree of
disadvantages of various elements which
constitute the input for specification may not be
totally different and the State of Maharashtra
even after reorganization might have agreed for
inclusion of the said tribe Halba/Halbi as a
Scheduled Tribe in the State of Maharashtra
having regard to the said fact in mind."
19) In the case of Hitesh Dasiram Murkute
(cited supra), referring to the observations of the
Hon'ble Apex Court in the case of Sudhakar Vithal
Kumbhare (cited supra), in para 41 of the judgment it
is concluded as under :
"41. To sum up :
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(i) It is necessary to give full effect to both the
expressions "for the purpose of this Constitution"
as well as "in relation to the State", appearing in
Articles 341 and 342 of the Constitution and
Clause 2 of the Constitution Scheduled Tribe and
Scheduled Castes Orders, 1950, in order to identify
the beneficiary correctly, i.e. by ensuring that he
belongs to caste identified with reference to a
State as Scheduled Caste or Tribe.
(ii) The object of including a caste or a tribe in the
schedules to the orders was to do away with their
disadvantaged position in the areas where they
resided vis-a-vis other population. The crucial test
would therefore be whether the person concerned
suffers the same degree of disadvantage vis-a-vis
other segments, as other local people of his caste
suffer or whether as a migrant, he is placed on a
higher pedestal.
(iii) Extending benefits to a migrant does no
offence to the expression `in relation to the State'
in Articles 341/342 of the Constitution or Clause 2
of Scheduled Caste/Scheduled Tribes Orders, 1950,
since entitlement of such a person would have to
be still decided with reference to the origin of such
27 wp6889.14,2591.14 & 6586.14
migrant and identification of migrant's caste as
backward in relation to such State.
(iv) Date too is equally relevant in order to identify
the person as belonging to caste included in the
schedule on the date of such inclusion with
reference to locality identified in the schedule.
Therefore, a person claiming benefit would have to
show that his ancestors hailed on the date of
inclusion of caste in schedule from a place
identified in the schedule. In other words, the
relevant date is not date of migration but date of
inclusion of caste or tribe in the schedule.
(v) Reorganization of States did not proceed on
the basis of castes or tribes but on linguistic basis
and, therefore, localities of persons entitled to the
benefit of reservation got divided in different
States.
(vi) If upon removal of area restrictions, in the
entire area of the State as originally existed on the
date of notification of Constitution (Scheduled
Castes/Scheduled Tribes) Orders, the persons
concerned could avail of the benefits of
reservation, there is no reason why they should be
28 wp6889.14,2591.14 & 6586.14
denied such benefits upon reorganization of the
States, in which a part of their locality was
included.
(vii) The ratio of the decision in Marri Chandra is
only that a migrant would be disentitled for
reservation in the State of migration, if his caste is
not notified as Scheduled Caste or Scheduled Tribe
in the State of migration. (Since in Marri Chandra's
case the caste "Gouda" was notified in the State of
Andhra Pradesh, but not in Maharashtra). It would
be impermissible to conclude that even though his
caste is so notified in the State of migration, he
would be disentitled to benefits, since such
conclusion would frustrate the very object of
providing benefits enumerated at (ii) above.
(viii) In Action Committee while explaining and
following the ratio in Marri Chandra's case, the
Apex Court must be held to have merely sought to
deny benefits to migrant belonging to a caste of
same nomenclature, by consciously choosing the
expression "same nomenclature" and avoiding the
use of words "same caste". This implies that if
persons belong to the `same caste', they were not
to be denied the benefits.
29 wp6889.14,2591.14 & 6586.14
(ix) Sections 26 and 27 of the Bombay State
Reorganization Act merely amend the schedules as
a corollary to creation of State of Maharashtra and
have no bearing on the question of entitlement of
the migrants to reservation with reference to date
on which the State was created.
(x) As held by the Apex Court in Sudhakar vs.
State, if a migrant belonged to a community which
was recognised as Scheduled Caste or Scheduled
Tribe in any locality which has been divided upon
reorganization of States and his caste is
recognized as Scheduled Caste/Scheduled Tribe
even in such newly formed States, the migrant
would be entitled to benefit of reservation even in
the State in which part of the locality other than
his place of origin has gone."
20) In the case of Shweta Santalal Lal (cited
supra), the issue for consideration before Full Bench of
this Court was as under :
"Whether a person who was not ordinarily
resident as on the date of the relevant
Presidential Notification in the area that now
30 wp6889.14,2591.14 & 6586.14
constitutes the State of Maharashtra will be
entitled to the benefit of reservation in the
State ?"
and on considering the judgments in the cases of Marri
Chandra Shekhar Rao, Action Committee on Issue of
Caste Certificate to Scheduled Castes and Scheduled
Tribes in the State of Maharashtra and another and
Bankimchandra Makanbhai Patel (cited supra), has
answered the reference as under :
"In case of a migrant belonging to a
Scheduled Caste, not ordinarily resident as
on 10/3/1950 in the area that now constitutes
the State of Maharashtra and in a case of
S.T., considering Rule 5, on 6/9/1950, would
not be entitled to benefits of reservation as
S.C./S.T. in the State of Maharashtra. They
and their progeny will continue to get the
benefits of reservation in the State of origin.
Reference answered accordingly."
21) Thus, considering the ratio of the judgment in
31 wp6889.14,2591.14 & 6586.14
Marri Chandra Shekhar Rao (cited supra) as affirmed in
Action Committee on Issue of Caste Certificate to
Scheduled Castes and Scheduled Tribes in the State of
Maharashtra, the position of law would be that if a
person migrates to a geographical area forming part of
another State after the date of Presidential
Notification, such a person will be treated as a migrant.
So also, the children of such migrants born after the
date of Presidential Notification will be entitled to
benefits of reservation in the State where their parents
were ordinarily resident. Marri Chandra Shekhar Rao
(cited supra) makes that position clear.
Further more, the Full Bench on considering
the conclusions drawn in the case of Hitesh Dasiram
Murkute (cited supra) as laid down in para 41, has
by dealing with each of the conclusions (i) to (x)
individually, distinguished the position of law laid down
in the case of Sudhakar Vithal Kumbhare (cited supra).
The relevant conclusion in Clause (x) in the case of
32 wp6889.14,2591.14 & 6586.14
Hitesh Dasiram Murkute (cited supra) is reproduced
hereunder :
"(x) As held by the Apex Court in Sudhakar vs.
State, if a migrant belonged to a community
which was recognised as Scheduled Caste or
Scheduled Tribe in any locality which has been
divided upon reorganization of States and his
caste is recognized as Scheduled Caste/
Scheduled Tribe even in such newly formed
States, the migrant would be entitled to benefit
of reservation even in the State in which part of
the locality other than his place of origin has
gone."
Above conclusion has been duly considered by the Full
Bench in the case of Shweta Santalal Lal (cited supra)
and it is thus held -
"(x) Insofar as conclusion (x) is concerned,
having explained the Judgment in Sudhakar's
case, which is the Judgment of the Bench of
three Judges and the two Constitution Bench
Judgments in Marri Chandrashekhar and Action
Committee, the scheduled castes and scheduled
tribes from any locality which has been divided
33 wp6889.14,2591.14 & 6586.14
upon Reorganization of States and such caste or
tribe is also recognized as Scheduled Caste and
Scheduled Tribe in the newly formed State, such
migrant would not be entitled to benefit of
reservation in the State of migration, but would
be entitled only of benefit in the State of origin."
Having considered so, the conclusion and the view
taken in the case of Hitesh Dasiram Murkute (cited
supra) have been disapproved and is overruled.
22) In the case of Sau. Kusum vs. State of
Maharashtra and others {(2009) 2 SCC 109},
petitioner had claimed to belong to `Carpenter' caste.
She hailed from Vidarbha area having border area of
Madhya Pradesh and Maharashtra. Carpenters in the
State of Madhya Pradesh were known as `badhai'
whereas in State of Maharashtra, they were known as
`sutar'. In both the States, people belonging to said
caste were entitled to be considered as Other
Backward Class. It is not known when the family of
34 wp6889.14,2591.14 & 6586.14
petitioner migrated from Madhya Pradesh to State of
Maharashtra. The petitioner in that case contested
election for the post of Sarpanch reserved for Other
Backward Class candidate and was elected. An
application was filed before the Caste Scrutiny
Committee by respondent no.4 therein contending that
she does not belong to the OBC category. In the light
of above facts, the Caste Scrutiny Committee finding
that said petitioner was born in 1962 in Chhindwara
District and since she is not resident of Maharashtra
prior to 1967, relying upon Circular dated 21/8/1996
issued by State of Maharashtra in respect of
candidates, who are not residents of Maharashtra prior
to 1967, refused to verify the caste claim of petitioner.
Being aggrieved by the said order, writ petition came
to be filed wherein direction was issued to Caste
Scrutiny Committee to scrutinise the caste claim of the
petitioner and give its finding. The matter was
considered afresh by the Caste Scrutiny Committee
and it was held that petitioner is of `badhai' caste
35 wp6889.14,2591.14 & 6586.14
being `sutar' in Maharashtra and maintained its
decision that she was not a resident of Maharashtra.
On the basis of above observations, her petition was
dismissed, which order was assailed before the Apex
Court, which partly allowed the appeal giving
directions to Caste Scrutiny Committee to consider the
claim of the petitioner afresh by allowing petitioner to
adduce additional evidence on the question as to when
she migrated.
Thus, in the case of Sau. Kusum (cited
supra), it is held that if it is a fact that people
belonging to said caste are recognized as OBC both in
Madhya Pradesh and Maharashtra being `badhai' in
Madhya Pradesh and `sutar' in Maharashtra and
keeping in view that the Caste Scrutiny Committee
found her belonging to `sutar' caste, the matter
requires re-consideration since nothing was on record
to show as to when petitioner migrated to State of
Maharashtra. On that count, the matter was directed
to be considered afresh with further observation that if
36 wp6889.14,2591.14 & 6586.14
petitioner is aggrieved by the finding of the Caste
Scrutiny Committee in regard to her parentage, she
would be entitled to file a suit for appropriate
declaration.
23) In the instant petitions, there is no reason for
us to disbelieve the evidence collected by the Vigilance
Cell, which is an independent Agency meant for
collecting documentary and other evidence in order to
find out whether the person really belongs to caste
which he/she claims as well as the place from which
such person hails. In the impugned orders passed by
the Caste Scrutiny Committee, it is held that the
petitioners in the instant petitions or their forefathers
were not the residents of Maharashtra State prior to
1950 and as such, their caste claims are invalidated.
24) We are, therefore, of the opinion that in the
interest of justice, the impugned orders are liable to be
set aside by remitting matters back for fresh
37 wp6889.14,2591.14 & 6586.14
consideration by the Caste Scrutiny Committee
wherein petitioners shall be permitted to adduce
evidence on the question as to when petitioners or
their forefathers had migrated to State of Maharashtra.
The respondent Caste Scrutiny Committee is,
therefore, directed to decide the caste claims of
petitioners within three months from the date of their
appearance before it. The petitioners shall appear
before the Caste Scrutiny Committee on 1/12/2015 and
tender evidence before it in order to show that he/she
belongs to the same caste/tribe, which has been
notified as Scheduled Caste/Scheduled Tribe both in
State of origin and State of Maharashtra. The Caste
Scrutiny Committee will be entitled to examine all
relevant aspects of the matter while considering
petitioners' prayer for issuance of caste validity
certificates.
Accordingly -
(i) Writ Petition No.6889/2014 is partly
allowed. The impugned order dated 17/1/2014
38 wp6889.14,2591.14 & 6586.14
passed by respondent no.1 Caste Scrutiny
Committee is quashed and set aside.
The respondent no.2 is directed not to disturb
the employment of petitioner till his caste claim is
decided.
(ii) Writ Petition No.2591/2014 is partly
allowed. The impugned order dated 1/8/2013
passed by respondent no.2 Caste Scrutiny
Committee is quashed and set aside.
The respondent nos.3 and 4 are directed to
allow petitioner to continue her B.E. Course subject
to result of her caste claim and declare results of
examinations, which may take place in the
intervening period.
(iii) Writ Petition No.6586/2014 is partly
allowed. The impugned order dated 4/7/2013
passed by respondent no.1 Caste Scrutiny
Committee is quashed and set aside.
Rule is made absolute in above terms in all
the three petitions. No order as to costs.
JUDGE JUDGE
khj
