Kishor Krushnarao Pawar Akola vs The Superintendent Of Police & ...
2016 Latest Caselaw 2688 Bom

    Judgment
                                                                                        wp1293.05




                                                                                                
                                                   1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                        
                     NAGPUR BENCH, NAGPUR

                        WRIT PETITION NO.1293 OF 2005




                                                                       
    Kishor son of Krushnarao Pawar,
    Aged about 28 years, Occupation : Service,
    R/o Keshav Nagar, Santosh Colony,




                                                         
    Behind T.T.N. College, Akola,
    Tahsil & District Akola.                                             ..... Petitioner.
                                       
                                         ::   V E R S U S   ::
                                      
    1.  The Superintendent of Police,
    Washim, District Washim.

    2.  The Committee for Scrutiny & 
    Verification of Tribe Claims, 
            


    Amravati.
         



    3.  State of Maharashtra, through its
    Secretary, Department of Home,
    Mantralaya, Mumbai.





    4.  The Director General of Police,
    Maharashtra State, Mumbai.                              ..... Respondents.

    =======================================

Shri N.R. Saboo, Counsel for the Petitioner.

Mrs. A.R.Taiwade, Asstt. Government Pleader for Resp. Nos.1,3 & 4. =======================================

CORAM : B.P. DHARMADHIKARI & KUM. I.K. JAIN, JJ.

                                        DATED          :  JUNE 9, 2016.


                                                                                              .....2/-





     Judgment
                                                                                     wp1293.05




                                                                                             

ORAL JUDGMENT : (Per : B.P. DHARMADHIKARI, J.)

1. The matter is part-heard. Learned counsel Shri N.R. Saboo for

the petitioner, has attempted to rely upon the course followed by this

Court on 26.3.2015 in Writ Petition No.3556 of 2001 and other connected

matters. He contends that when the provisions of Rule 12(5) of Rules

framed under The Maharashtra Scheduled Castes, Scheduled Tribes, De-

notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes

and Special Backward Category (Regulation of Issuance & Verification of)

Caste Certificates Act, 2000 (Act No.XXIII of 2001) (for short, "the Act

No.XXIII of 2001) are found violated or then direction Nos.4 and 5 issued

by the Honourable Apex Court in the Case of Kumari Madhuri Patil and

another ..vs.. Additional Commissioner, Tribal Development and

others, reported at AIR 1995 SCC 94 are breached, the candidate like the

petitioner needs to be given an opportunity again. He submits that the

petitioner has placed on record of this writ petition affidavits of his

relatives to whom validities of "Thakur" Scheduled Tribe have been given.

He has also produced on record of this writ petition a copy of show cause

notice dated 17.11.2004 issued by the Scrutiny Committee calling upon

.....3/-

Judgment wp1293.05

the petitioner to remain present for hearing before it. The vigilance

report, sent to the petitioner and annexed therewith, dated 3.7.2004 is

also relied upon by him to urge that, that report does not show anything

adverse and hence, it was not necessary for the petitioner to adduce any

evidence in support of his caste claim.

2.

Learned Assistant Government Pleader Mrs. A.R. Taiwade for

respondent Nos.1, 3, and 4, on the other hand, points out that today for

the first time, notice dated 17.11.2004 sent to the petitioner has been

brought on record. That notice expressly mentions that the petitioner has

been given copy of vigilance enquiry report and the petitioner has been

expressly informed that the traits and customs disclosed by him to the

vigilance cell are not consistent with that of "Thakur" Scheduled Tribe.

She contends that thus the petitioner was aware of the fact that he is not

satisfying affinity test. The petitioner, therefore, ought to have produced

necessary material or witnesses before the Scrutiny Committee in rebuttal.

She argues that since the burden to prove his caste claim is upon the

petitioner and he has failed to do so, the petition must be dismissed.

According to her, effort of the petitioner is only to delay adjudication of his

.....4/-

Judgment wp1293.05

caste claim and to continue in employment as long as possible.

3. Learned counsel Shri N.R. Saboo for the petitioner, in reply,

submits that inadvertently copy of show cause notice dated 17.11.2004

could not be produced earlier on record. By way of abundant precaution

and in alternative, he states that the petitioner has joined employment on

11.9.2001 i.e. before coming into force of the Act No.XXIII 2001. The

Scrutiny Committee has not held the petitioner guilty of any fraud or

malpractice. Therefore, as laid down in the judgment of the Full Bench of

this Court in the case of Arun Vishwanath Sonone ..vs.. State of

Maharashtra and ors, reported at 2015(1) Mh.L.J. 457, the petitioner is

entitled for grant of protection in employment. He, therefore, submits that

in this situation, contention that the petitioner is only interested in

delaying the adjudication, is unsustainable. Upon instructions and only to

show bona fide, he adds that if the petitioner is given an opportunity to

produce before the Scrutiny Committee validities given to his blood

relatives, the petitioner shall, during pendency of that enquiry, work only

on 80% of the present wages.

.....5/-

Judgment wp1293.05

4. Perusal of the vigilance enquiry report, served upon the

petitioner, dated 3.7.2004 does not show any specific finding reached by

the police officer. That document shows that the police inspector only has

conducted investigation. The research officer was not associated and the

vigilance enquiry report, therefore, does not make any express comment

upon the caste or traits and customs disclosed by the petitioner.

5. In show cause notice dated 17.11.2004, it is mentioned that

the vigilance enquiry report running into one page is enclosed therewith

and the traits and customs noted by the vigilance cell do not match with

the Scheduled Tribe claim made by the petitioner. The show cause notice

is in a format and the document annexed with it does not observe

anything on correctness or otherwise of the traits and customs disclosed by

the petitioner. The police officer has recorded statement of the petitioner

only and his opinion is recorded in that report. In that opinion, again he

has not mentioned anything adverse on the traits and customs. However,

at the end, he has stated that, "as disclosed by him, caste appears to have

been recorded as "Thakur" Scheduled Tribe". It is, therefore, not very

clear whether the vigilance enquiry report can be said to be adverse to the

.....6/-

Judgment wp1293.05

petitioner or not.

6. The vigilance enquiry report is dated 3.7.2004 and at that

time the provisions of The Maharashtra Scheduled Tribes (Regulation of

Issuance and Verification of) Certificates Rules, 2003 were very much in

force. As per Sub-rule 5 of Rule 12, the vigilance cell is obliged to examine

the parents or guardian or applicant for the purpose of verification of their

Tribes. Here, the said office has examined only the petitioner. The result

of his examination, prima facie, does not appear to be adverse. It appears

that the Scrutiny Committee has, after perusal of the traits and customs

recorded by the vigilance officer, found the same were not consistent with

the claim of the petitioner.

7. The petitioner has produced before this Court affidavits of one

Bhaskar Shankar Thakur and Yashwantrao Maharu Pawar to demonstrate

that his relatives have been given validities. The relationship or its exact

degree, however, has not been brought on record.

8. If the entitlement of the petitioner for grant of protection in

.....7/-

Judgment wp1293.05

employment is to be considered in this matter as he has joined

employment before coming into force of the Act No.XXIII of 2001 and the

Scrutiny Committee has not found him guilty of any fraud or indulging in

malpractice for procuring either caste certificate or employment, he may

be required to be protected. The bona fide shown by him and request

made by him to provide one more opportunity, needs to be viewed in this

background.

9. We are, therefore, inclined to grant the petitioner an

opportunity. We direct the petitioner to appear before the Scrutiny

Committee on 4.7.2016 and place on its record such documents as he

desires, to substantiate his claim as belonging to "Thakur" Scheduled

Tribe. After the documents come on record, the Scrutiny Committee shall

give the petitioner an opportunity to establish his claim and, thereafter,

proceed to pass fresh orders in the matter in accordance with the

provisions of the Act No.XXIII of 2001.

10. The Scrutiny Committee shall make an attempt to complete

this exercise within a period of one year. During the said period, the

.....8/-

Judgment wp1293.05

petitioner shall continue to draw his salary at 90% of his present wages.

The remaining 10% shall be disbursed to him, if his caste claim is

validated, within a period of next two months thereof.

11. Subject to this, we quash and set aside the impugned order

dated 28.2.2005. The writ petition is thus allowed and disposed of. No

costs.

                          JUDGE                                    JUDGE
             
          



    !!  BRW  !!






                                                                                           ...../-