Bombay High Court
Shrirang Baburao Dhakate vs The State Of Maharashtra & 2 Others on 13 June, 2016
Bench: B.P. Dharmadhikari
Judgment
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1664 OF 2001
Shrirang s/o Baburao Dhakate,
Aged about 39 years, resident of
Armori, District : Gadchiroli, ..... Petitioner.
:: V E R S U S ::
1. The State of Maharashtra,
Through its Secretary, Tribal
Development Department,
Mantralaya, Mumbai-32.
2. Committee for Scrutiny &
Verification of Tribe Claims,
Giripeth, Adivasi Vikas Bhavan,
Amravati Road, Nagpur.
3. The Senior Regional Manager,
Hindustan Petroleum Corporation
Limited, Oriental Building,
Second Floor, Kamptee Road,
Nagpur. ..... Respondents.
Ravindra Maroti Naitam, Aged about
45 years, Occupation Agriculturist,
Resident of Armori, District Gadchiroli. ..... Intervenor.
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Shri P.C. Madkholkar, Counsel for the Petitioner.
Shri Anil Mardikar, senior counsel for the intervenor.
Shri S.B. Bissa, Asstt. Government Pleader for Resp. Nos.1 & 2.
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CORAM : B.P. DHARMADHIKARI &
KUM. I.K. JAIN,
JJ.
DATED : JUNE 13, 2016.
ORAL JUDGMENT : (Per : B.P. DHARMADHIKARI, J.)
1. The matter is called out today for final hearing. It was
earlier called out on 6.6.2016 and came to be adjourned to today, as
last chance.
2. The challenge in this writ petition is to order dated
21.4.2001 passed by respondent No.2-committee invalidating caste
claim of the petitioner as belonging to "Halba" Scheduled Tribe. The
writ petition came to be filed on 28.5.2001 and on 29.5.2001, while
issuing notice before admission in the matter, this Court granted ad
interim stay of that order. The said interim order continues to
operate, even today.
3. The petitioner had been given Liquified Petroleum Gas
(L.P.G.) dealership in year 1989 as a person belonging to "Halba"
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Scheduled Tribe. The status of the petitioner as "Halba" Scheduled
Tribe and his entitlement to said dealership is, therefore, in question.
One Ravindra Maroti Naitam has filed an application for intervention,
which was granted on 24.4.2007, and he has been added as
intervenor.
4.
Learned counsel Shri P.C. Madkholkar for the petitioner
points out that, till coming into force of 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), the scrutiny committee had jurisdiction only to
verify caste claims for the purposes of granting admissions to
professional colleges or then for service purposes. Thus, the
committees, till then functioning, under various Government
Resolutions did not possess power to verify caste claim of the
petitioner and hence, order dated 21.4.2001 is without jurisdiction and
void. In the alternative and without prejudice, he states that the
scrutiny committee was duty bound to adhere the principles laid down
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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, but those principles have
been violated. There was no research officer associated in the matter
and no vigilance enquiry, as stipulated therein, has been conducted.
The petitioner did not receive copy of vigilance enquiry report and did
not get an opportunity to rebut. He, therefore, submits that, in any
case, if this Court finds that the scrutiny committee had jurisdiction,
the matter needs to be remanded back. However, he adds that this is a
third round of litigation and in view of protection made available to
the similar candidates in employment vide Full Bench judgment of this
Court in the case of Arun Vishwanath Sonone ..vs.. State of
Maharashtra and ors, reported at 2015(1) Mh.L.J. 457, similar
protection needs to be given to the present petitioner. The petitioner is
managing L.P.G. dealership since year 1989, for almost past twenty-
seven years, and it cannot be allowed to be disturbed now. He submits
that Writ Petition No.3135 of 1989 was filed by one Shriram Madavi
questioning caste claim of the petitioner and grant of L.P.G. dealership
to him. That writ petition was summarily rejected on 26.3.1990.
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Thereafter, due to threats of fast to death, the State Government itself
made a reference of caste dispute to the committee, but the order
passed thereupon was withdrawn by the committee before this Court.
The impugned order, thereafter, has been passed on 21.4.2001. He
contends that the impugned order is, thus, unsustainable and liable to
be quashed and set aside.
5. Learned Assistant Government Pleader Shri S.B. Bissa for
respondent Nos.1 and 2 submits that respondent Nos.1 and 2 have not
filed any affidavit-in-reply on record and as such he is facing
difficulties in defending the matter. He, however, adds that when
dispute about the caste was referred to the committee by the State
Government, it cannot be said that the committee does not possess
jurisdiction. He further adds that perusal of the impugned order,
passed by the scrutiny committee, reveals that the scrutiny committee
came across some old documents wherein caste was recorded as
"Koshti" and hence, the claim of the petitioner as belonging to "Halba"
Scheduled Tribe is found to be incorrect.
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6. Learned senior counsel Shri Anil Mardikar for the
intervenor, adopts arguments of learned Assistant Government Pleader
Shri S.B. Bissa for respondent Nos.1 and 2. He adds that, in this
situation, as there is no jurisdictional error or perversity, no case is
made out warranting interference and the writ petition petition needs
to be dismissed.
7. The fact that the petitioner has been given L.P.G.
dealership, as "Halba" Scheduled Tribe candidate in year 1989, is not
in dispute. Fact that the petitioner is still managing that business, is
also admitted position. Filing of Writ Petition No.3135 of 1989
contending that the petitioner is not Scheduled Tribe candidate and its
rejection on 26.3.1990, is also not in dispute before this Court. The
petitioner has, in paragraph No.4 of the writ petition, pointed out that
he received communication dated 24.1.1994 and along with it total 14
documents whereby his caste claim was referred to the scrutiny
committee. Order of the Government dated 9.11.1990 mentioned that
one Shriram Madavi had threatened to go on indefinite hunger strike
and, therefore, the matter was referred to the committee. The
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petitioner has also stated that on 25.2.1994, he has received a caveat
filed by Shriram Madavi before this Court. The committee passed an
order invalidating caste claim of the petitioner on 19.2.1994 and the
petitioner questioned it in Writ Petition No.572 of 1994.
8. Ultimately, this Court remanded the matter back to the
caste scrutiny committee. The claim was again invalidated and Writ
Petition No.2929 of 1996 was filed by the petitioner. This Court
granted interim relief, but the scrutiny committee filed a pursis
accepting that it had not followed necessary procedure. The petition
was, therefore, disposed of keeping all objections open.
9. Petitioner then points out that he received a notice to
remain present on 29.09.2000. Petitioner had raised a preliminary
objection. At the time of hearing there were about 30 persons and all
of them were asked to sign on blank paper. Petitioner's signature was
also obtained similarly. We are not required to go into all these
disputed questions, however, it is to be noted that the respondent nos.
1 to 3 or then the intervenor, have not filed any affidavit refuting these
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assertions.
10. As far as the legal grounds are concerned, the petitioner
has added ground nos. [j] and [k] in December, 2015. He has invited
attention to the judgment of Hon'ble Apex Court in case of Ku.
Madhuri Patil (supra), and specifically stated that neither the Vigilance
Inquiry was conducted as laid down therein, nor any such report was
supplied to him. Again these assertions have not been refuted by the
respondents.
11. Perusal of the impugned order of the Scrutiny Committee
dated 21.04.2001 reveals that the petitioner has relied upon the caste
certificate dated 13.08.1976, issued to him; Primary school leaving
certificate issued to him on 04.05.1965, similar certificate issued to his
younger sister on 01.07.1968 and Secondary School leaving certificate
issued to his younger sister on 12.06.1972. All these documents
mention caste as "Halba" Scheduled Tribe. Impugned order nowhere
shows that these documents were found to be interpolated or then
school records were found to be tampered with.
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12. The Scrutiny Committee has mentioned that to record
petitioners say on police vigilance report, he was called for hearing on
25.05.2000, but, he remained absent and sought next date. He was
asked thereafter to appear on 13.06.2000, 29.06.2000 and 29.08.2000,
but, he purposefully avoided to remain present. He was then called on
29.09.2000. On that day, he filled in the questionnaire and was heard.
But, he did not gave any say on the police vigilance cell report. The
Scrutiny Committee therefore has concluded that impliedly he
accepted the truth thereof. It is in this backdrop that it has noted the
old documents where the caste was recorded as "Koshti" in respect of
candidates uncle namely - Pandharinath Govind Dhakate and
Sudhakar Govind Dhakate in School Admission Register. Caste of
candidates grand-father is also found to be recorded as 'Koshti' in the
revenue record. Service book of candidates' father is also found to be
mentioning same caste. These documents are therefore, given more
importance.
13. Perusal of the impugned order does not show that the
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petitioner was served with copy of the vigilance cell report and
thereafter time of two weeks, as stipulated in case of Ku. Madhuri
Patil, was given to him. In absence of this material on record, it is
difficult for this Court to hold that order passed is legal and valid as it
violates clauses 4, 5 and 6 of said judgment.
14.
The Scrutiny Committee as also the intervenor got
sufficient time to point out true and correct position on record.
However, they have not filed any reply affidavit. One Rajeev Shah
Bhagwan Shah has filed Civil Application No.760/2010, seeking leave
to intervene in the matter. It appears that he is also opposing the
petition. However, nobody appears for him to argue that application.
15. Respondent no.4 filed a return and it's perusal reveals that
the present petitioner contested some election in which he was also a
participant. This return does not advance the cause of respondent no.2
Scrutiny Committee at all.
16. The uncertainty about fate of Halba Koshti candidates or
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Halba Scheduled tribe candidates was prevailing for long time. The
matter came to be settled ultimately when the Constitution Bench of
Hon'ble Supreme Court delivered judgment reported at 2000 (1) SCC
4 (State of Maharashtra .vrs. Milind Katware). The Full Bench of
this Court in 2015 (1) Mh.L.J. 457 (Arun Sonone .vrs. State of
Maharashtra and others) has in this background extended protection
in employment to all such candidates who are found not to have
played any fraud or interpolated the documents for the purpose of
either procuring employment of caste certificate. Here the old
documents of petitioner and his sister itself record caste as 'Halba'.
These documents are not found to be tampered with. In the impugned
order there is no mention of any fraud practiced by the petitioner.
The LPG dealership is alloted to him way back in the year 1989, and he
is running it since last about 27 years. Thus, more than half of is active
live has already gone in that business. If the dealership is now
cancelled, entire family of petitioner will suffer.
17. The petitioner who has assailed the order of the Scrutiny
Committee dated 24.01.2001, has not explained relation with or stated
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anything about the persons namely Pandharinath Govind Dhakate and
Sudhakar Govind Dhakate. Comment on service book of his father by
the Scrutiny Committee has also not been answered.
18. The provisions of Maharashtra Act No. 23 of 2001 have
come into force on 18.10.2001. The impugned order has been passed
about 6 months prior to that. The petitioner has fairly placed on
record a copy of resolution dated 09.09.1999. There, while prescribing
the nature of work of the Scrutiny Committee, vide clause [d], it is
mentioned that the Scrutiny Committee has also to verify the caste
claims which are entrusted to it by the Government, Tribal
Development Department. In this situation, as the case of petitioner
was entrusted to the Scrutiny Committee by the Government itself, we
do not find it necessary to pronounce upon the dispute about its
jurisdiction. We keep the issue open for its due adjudication in more
appropriate facts.
19. In this situation, taking over all view of the matter, we
find that the impugned orders cannot be used to deprive the petitioner
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of the LPG Dealership, which has been allotted to him in the year
1989. It is also made clear that the said order shall not be used to the
prejudice of any blood relation of petitioner while verifying their caste
claim.
20. Accordingly, with these directions we partly allow the Writ
Petition and dispose of the same. No costs.
JUDGE JUDGE
!! BRW !!
rgd
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