Bombay High Court
Vinod S/O Tukaram Shirshikar vs Union Of India Through Its ... on 15 March, 2016
Bench: B.P. Dharmadhikari
Judgment wp6584.15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 6584 OF 2015.
Vinod s/o Tukaram Shirshikar,
Aged about 45 years, Occupation - Service,
resident of Harishraddha Apartment,
C-302, Gadekar Mala, Behind Anuradha
Talkies, Deolali Gaon, Nashik Road,
Nashik. ....PETITIONER.
VERSUS
1. Union of India,
through its Secretary, Ministry of
Railways, New Delhi.
2. The General Manager,
Central Railway, having its
office at Parel, Mumbai.
3. The Scheduled Tribe Certificate
Scrutiny Committee, Nagpur Division,
Nagpur having its office at Adiwasi
Bhavan, Giripeth, Nagpur through its
Chairman.
4. Chief Personal Officer,
(M & T), Central Railway,
Head Quarters office,
Personnel Branch, Mumbai, CST.
5. Shri T.K. Margaye,
Aged Major, occupation - Service,
resident of 201, Sai Smita CHS
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Near Mahila Samiti School,
Thakurli (East)
District Thane 421 201. ....RESPONDENTS
.
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Mr. C.S. Kaptan, Senior Advocate with
Mr. K.V. Deshmukh, Advocate for Petitioner.
Mr. N.P. Lambat, Advocate for Respondent Nos. 1,2 and 4.
Ms. P. Rane, Asstt. Govt. Pleader for Respondent No.3.
Mr. M.M. Sudame, Advocate for Respondent No.5.
------------------------------------
ig CORAM : B.P. DHARMADHIKARI
& P.N. DESHMUKH, JJ.
DATED : MARCH 15, 2016.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Heard Shri C.S. Kaptan, learned Senior Counsel with Shri K.V.
Deshmukh, learned Counsel for the Petitioner, Shri N.P. Lambat, learned
Counsel for Respondent Nos. 1,2 and 4, Ms. P. Rane, learned Assistant
Government Pleader for Respondent No.3 and Shri M.M. Sudame, learned
Counsel for Respondent No.5. By their consent, the matter is taken up for
final disposal. Hence, Rule is made returnable forthwith.
2. The petitioner has approached this Court challenging the order of
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the Scrutiny Committee dated 30.09.2015, invalidating his caste claim as
belonging to "Halba" Scheduled Tribe. By the said order, the Caste
Certificate dated 06.04.1987, issued by the Executive Magistrate, Nagpur
vide R.C. No. 296/MRC 81/87-88 has been cancelled. It appears that the
petitioner also had a caste certificate dated 13.11.1990, issued by the
Tahsildar and Executive Magistrate, North Solapur, District Solapur vide No.
MAG/Caste/SR/138. It has been cancelled and confiscated by the
Scheduled Tribe Certificate Scrutiny Committee, Pune on 05.07.2013.
3. The impugned order dated 30.09.2015 has been passed upon a
complaint made by respondent no.5. Respondent no.5 and petitioner are
employees of respondent no.2, and respondent no.5 pointed out that in the
year 2008-09, the petitioner has procured accelerated promotion on the
basis of his caste. He claimed that the petitioner was real Koshti and not
Halba, and therefore, not entitled to promotion or benefits of reservation.
4. At the outset, Shri C.S. Kaptan, learned Senior Counsel with Shri
K.V. Deshmukh, learned Counsel for the petitioner made a statement that
the promotion which is questioned by respondent no.5 and effected in the
year 2008-09 is being given up by the petitioner. He points out that this was
the first and only promotion of petitioner on the basis of his caste certificate,
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and his earlier promotions are in open category. Shri Kaptan, learned
Senior Counsel therefore, contends that in this situation, respondent no.5
cannot have any grievance, and he ceases to have any locus to oppose the
petition. He submits that petitioner is born on 10.07.1970, and got caste
certificate showing that he belongs to Halba Scheduled Tribe on 06.04.1987
i.e. when he was about to complete 17 years of his age. On the basis of that
certificate, he has completed his education and then got employment. His
promotions thereafter were in open category. The petitioner has entered in
employment as an apprentice mechanic on 24.07.1990, against a post
reserved for Scheduled Tribe Category.
5. Shri Kaptan, learned Senior Counsel submits that family of
petitioner was constantly on move, and therefore, the petitioner could not
establish the genealogical tree or then authenticity of old records on which
reliance was placed. However, there is no finding that the petitioner has
played any fraud for the purpose of procuring said caste certificate or
employment. He therefore, seeks protection in terms of Full Bench
judgment of this Court in case of Arun Vishwanath Sonone vs. State of
Maharashtra & Ors., (2015 (1) Mh.L.J. 457 (FB).
6. Though Shri Kaptan, learned Senior Counsel has objected to the
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locus of respondent no.5/ complainant, we have heard Shri Sudame, learned
counsel for respondent no.5, Ms. Rane, learned A.G.P. who appears for
respondent no.3 and Shri N.P. Lambat, learned Counsel for respondent nos.
1, 2 and 4.
7. Effort of respective learned counsel is to demonstrate that the
petitioner has infact played fraud while procuring caste certificate and also
while procuring employment. They submit that in birth certificate of
petitioner himself, caste has been recorded as 'Koshti'. It is pointed out that
when an effort was made to obtain appropriate information to facilitate due
verification, petitioner did not cooperate and that necessitated Vigilance
enquiry on three occasions. Correct details of names of forefathers or then
about their residence were not given, and hence at every stage the vigilance
squad faced difficulties. Our attention has been invited to the relevant
observations in the impugned order of the Scrutiny Committee dated
30.09.2015 for said purpose.
8. Shri Lambat, learned counsel appearing for the Railways, submits
that the very entry of the petitioner in the employment is against a reserved
post and therefore, his subsequent promotions in open category hardly
matter. He further contends that in any case in 2008-09, petitioner obtained
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promotion posing himself to be a Halba Scheduled Tribe candidate and thus,
has played a fraud on his employer. He submits that this also amounts to
misconduct under the Conduct Rules of Railways, and therefore, the
employer should be left free to proceed against the petitioner in accordance
with law for said misconduct. He invites attention to the fact that an
affidavit reserving this right is to be filed and has been drafted, however,
the deponent could not come to Nagpur. At his request, we have taken on
record an un-sworned draft signed by Pralhad B. Kale, Senior personal
Officer, Central Railway, Mumbai.
9. Shri Kaptan, learned Senior Counsel in reply arguments submits
that inability to explain relationship, to disclose whereabouts or then to
explain circumstances by itself does not mean that the petitioner is guilty of
any fraud or cheating. He also states that even if the petitioner is found to
be belonging to Koshti caste, in the light of judgment delivered by the
Hon'ble Supreme Court in case of State of Maharashtra .vrs. Milind
Katware, (2000 (1) Mh.L.J. 1./ (2001) 1 SCC 4), and the later Full Bench
judgment mentioned supra of this Court, the petitioner is entitled to
protection.
10. The petitioner has given up his promotion which he has secured in
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the year 2008-09 and as such, we are not required to look into that aspect.
If acquiring that promotion constitutes a misconduct, it is open to the
respondent - employer to proceed against him under Discipline and Appeal
Rules.
11. The judgments mentioned supra, enable a person not belonging to
Scheduled Tribe to seek protection, if it is shown that he has not played any
fraud or has not practiced any cheating or falsehood, while procuring
certificate or employment.
12. We have already noted above that when the petitioner got
certificate on 06.04.1987, he was about to complete his age of 17 years.
Learned A.G.P. has pointed out that the perusal of records of concerned
Tahsildar/Executive Magistrate reveals absence of entry of any such
certificate. The impugned order in concluding portion observes "His Caste
Certificate of his belonging to Halba, Scheduled Tribe, is fake which is shown
likely to be issued by the Executive Magistrate, Nagpur vide R.C.No.296/MRC
81/87-88, dated 6.4.1987 is hereby cancelled." Thus, the Committee itself
has not confidently recorded a finding that no such certificate was issued by
that Authority and, therefore a non-existent certificate has been submitted to
it for verification. The Committee has examined it and then proceeded to
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cancel said certificate. The order does not show that in a particular year
caste certificate having said case number was not or could not have been
issued. The physical verification of case records is not shown to be
undertaken. Learned A.G.P. has submitted that the relevant records of
register of Tahsildar were only looked into and this finding has been arrived
at. It appears that the Tahsildar informed the Scrutiny Committee that the
entry of Revenue Case No.296 was not found in the record of Naib Tahsildar
Court Nos. 1 to 5. The Scrutiny Committee therefore, has concluded that it
implied that the caste certificate is as good as a fraud certificate and its
authenticity is not proved.
13. Even if we presume that the certificate was not issued, it is difficult
to hold that a boy aged about 17 years, has then manipulated everything.
The Committee or respondents have not urged that said certificate has been
procured later on after attaining majority and has been antedated. In
absence of such assertions, contention that by procuring such certificate
petitioner has played a fraud and practiced cheating, cannot be accepted.
14. Perusal of three vigilance reports also show that complete
information about his relatives or there whereabouts could not be given by
the petitioner. His failure to give complete information itself cannot amount
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to fraud or cheating. The Scrutiny Committee has in its order has referred to
four different genealogical trees. The first tree looked into is submitted by
petitioner; while the second tree is given by his wife. The third tree is as per
the statement of his mother, while last one is as per the statement of his
sister. Thus all 4 members appear to have attempted to give genealogical
tree. Inconsistencies therein may only lead to an inference that a particular
person is related or is not related to the petitioner. However, that does not
mean that any fraud has been played by him. Otherwise all 4 members
could not have furnished identical details.
15. We therefore, find material on record insufficient to conclude that
the respondent no.3 Committee has found the petitioner guilty of playing
any fraud or of practicing a deceit for the purpose of obtaining said caste
certificate.
16. Documents submitted by the petitioner to the Caste Scrutiny
Committee show reliance upon documents dated 19.12.1920, 24.04.1936,
11.10.1021, 16.05.1929 and 15.07.1970 to substantiate his caste claim.
Even if we presume that in absence of these documents, the petitioner would
have been held to be belonging to Koshti caste and not belonging to Halba
Scheduled Tribe, that does not dis-entitle him to protection in terms of the
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judgment mentioned supra. The conduct of petitioner is very material and
the committee through its vigilance cell could not point out that the
petitioner has himself interpolated any documents or tampered with any
record while procuring the caste certificate or in an attempt to obtain
validity.
17. In this situation, in the light of the judgment mentioned supra,
particularly the Full Bench judgment of this Court in case of Arun
Vishwanath Sonone .vrs. State of Maharashtra (supra), we find the
petitioner entitled to grant of protection of his employment. Accordingly,
subject to petitioner filing an undertaking with his employer, with
respondent no.3 Scrutiny Committee and with the Registry of this Court
within a period of four weeks from today that neither he nor his progeny
shall claim the status as belonging to Halba Scheduled Tribe in future, we
grant him protection in terms of the Full Bench judgment mentioned supra.
18. In view of above discussion and observations, Writ Petition is,
partly allowed and disposed of. No costs.
JUDGE JUDGE
Rgd.
