Bombay High Court
Prakash Baburao Shahare vs State Of Mahrashtra And 4 Others on 1 August, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5410/2004
* Prakash Baburao Shahare
Aged 42 years, R/o Lala Rajpatrai Ward
Behind Shanti Niketan Convent
Bhandara, Tah. & Dist. Bhandara. ..PETITIONER.
VERSUS
1) State of Maharashtra
Through Secretary
Tribal Welfare Development Department
Mantralaya, Mumbai-400032
2) Scheduled Tribes Caste Certificate
Scrutiny Committee,
Through its Dy. Director (R)
and Member Secretary,
Adiwasi Vikas Bhavan
Giripeth, Nagpur.
3) Maharashtra State Road Transport Corporation
Through its Managing Director
Wahatuk Bhavan, Bombay Central, Mumbai.
4) Divisional Controller
Maharashtra State Road Transport Corporation
Bhandara.
5) Tribal Research and Training Institute
Through its Commissioner,
28, Queen's Garden, Pune. ..RESPONDENTS
.
...................................................................................................................
Mr.R.D.Karode, Advocate for the petitioner
Mrs. Geeta Tiwari, Assistant Government Pleader for
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respondent Nos.1 & 3
Mr. Saurabh Choudhari, Advocate for UOI
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CORAM : R.K. DESHPANDE &
MRS.SWAPNA JOSHI, JJ.
DATED : 1 st
August, 2017
ORAL JUDGMENT: (Per R.K.DESHPANDE, J.)
The claim of the petitioner for 'Binjhwar' which is a
recognized Scheduled Tribe at Sr. No.10 in the Constitution (Scheduled
Tribes) Order, 1950 in relation to the State of Maharashtra, was
invalidated by the Scheduled Tribe Caste Certificate Scrutiny Committee,
Nagpur/respondent no.2, on 16.10.2004 and hence the same is the
subject-matter of challenge in this petition.
2. The petitioner was employed as a Conductor in the service
of Maharashtra State Road Transport Corporation with effect from
29.1.1992 against a post reserved for Scheduled Tribe category. Upon
invalidation of his caste claim on 16.10.2004, he apprehended
termination from service and, therefore, approached this Court by filing
the instant petition. By an order dated 11th November 2004, the service
of the petitioner was protected and the said protection was continued
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when the matter was admitted on 11.1.2005. The petitioner is, therefore,
in service and has, as on this date, completed about 25-years of service
as a Conductor. The petitioner, therefore, alternatively seeks protection
in service on the basis of the Government Resolutions dated 15th June
1995 and 30th June, 2004.
3. With the assistance of the learned counsels appearing for
the petitioner, we have gone through the order impugned, passed by
respondent no.2-Committee. The petitioner placed on record nine
documents indicating his caste as well as the caste of his relatives as
'Binjhwar'. The oldest document in which the entry 'Binjhwar' was made
is of 1.9.1950 which is the Primary School leaving certificate in the name
of Ratiram Sakharam. However, the Committee has held that he is not in
blood relation with the petitioner from the paternal side. All other
documents are of the period subsequent to 1950.
4. The police vigilance cell report dated 17.12.2003 produced
on record indicate the documents of the blood relative of the petitioner
pertaining to the year 1935, 1939, 1967, 1956 and 1971 showing their
caste as 'Injhwar'. The Committee relied upon these documents and a
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finding is recorded that 'Injhwar' is a separate caste and it is not
included in the list of Scheduled Tribes. The socio-cultural traits,
characteristics, customs of 'Injhwar' community do not match with
those of 'Binjhwar'.
5. The learned counsel for the petitioner invited our attention
to the averments made in paragraph 6 of the petition on page 5 which
are reproduced below:
"6. That, the Binjhwar caste is mainly found in the State
of Madhya Pradesh and there is a heavy migration of such
persons from Binjhwar community to erstwhile Bhandara
District and now in Bhandara and Gondia Districts. As the
districts are dominated by Hindi coupled with Marathi, the
word "Bin" (fca) is pronounced as "In" (bZa) and, therefore
caste is recorded as Injhwar and not Binjhwar. The State of
Maharashtra in order to ascertain the correctness of this thing
appointed last respondent to make an inquiry and submit its
report. In the submission of the petitioner the said respondent
has conducted a survey and also prepared a report which was
submitted to the Government vide letter [email protected]@izds
399 dated 11th Nov. 2002, in which the said authority has
come to the conclusion that it is a truth that original
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Binjhwars who are migrated from Madhya Pradesh to these
two districts have Injhwar and, therefore, they are entitled for
the concession as a Scheduled Tribe. This is because of
pronunciation and dialect which exists in these two districts. If
that is so, then caste scrutiny committee cannot take a
contrary view to the research work done by its superior
authority, namely the Commissioner. The order impugned,
therefore, is liable to be quashed and set aside."
The learned counsel has also invited our attention to the
order dated 1st February, 2017 passed by the Division Bench of this Court
in Writ Petition No.4625/2016 and Writ Petition No. 180/2016 noting
therein that a Bill was tabled in both the Houses in the year 2011.
6. Shri Saurabh Choudhari, the learned counsel appearing for
Union of India, has placed before us the Constitution (Scheduled Tribes)
Order (Second Amendment ) Bill, 2011 wherein it was proposed that
'Injhwar' to be treated as synonym of 'Binjhwar' and the matter was
referred to the State Government for furnishing clear recommendation.
It is informed to us that the State Government by its communication
dated 23rd February 2012 informed the Government of India, Ministry of
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Tribal Affairs that inclusion of 'Injhwar' is synonym of 'Binjhwar' is not
acceptable. We are also informed that the said Bill has lapsed.
7. The finding of the Committee that 'Injhwar' is a separate
caste which is not included in the list of recognized Scheduled Tribes is
not challenged. It is not permissible to hold an enquiry or to let in
evidence to hold that 'Injhwar' is the synonym of 'Binjhwar'. Accordingly,
the State Government has also taken a decision that inclusion of
'Injhwar' as synonym of 'Binjhwar' is not acceptable. We, therefore, hold
that 'Injhwar' is not entitled to the benefit available to 'Binjhwar', a
recognized Scheduled Tribe at Sr. No.10 in the Constitution (Scheduled
Tribes) Order, 1950 in relation to the State of Maharashtra.
8. In view of the fact that the documents obtained by the
police vigilance cell indicating the caste of the petitioner or his paternal
relatives is shown as 'Injhwar' prior to 1950 having probative value are
taken into consideration and by applying the affinity test it is held that
the petitioner has failed to establish the claim for 'Binjhwar' Scheduled
Tribe category, we do not find any reason to interfere with the findings of
fact recorded, which at any rate, takes a possible view of the matter.
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9. In the latest decision of the Apex Court rendered on
6.7.2017 in Civil Appeal No.8928/2015 (Chairman and Managing
Director, FCI and others vs. Jagdish Bahira and another), which we have
followed in Writ Petition No.3373/2002 with bunch of petitions
rendered on 17th July, 2017, the petitioner is neither entitled to
protection in service in terms of the Government Resolution dated 15th
June, 1995 and 30th June, 2004 and we are unable to prevent the
consequences provided by section 10 of the Maharashtra Act No. XXIII
of 2001 of withdrawal of concessions and benefits availed as a candidate
belonging to Scheduled Tribe category. For the reasons recorded by us in
the decision in Writ Petition No.3373/2002 which shall form part and
parcel of this decision, we reject such claim. The Writ Petition is
dismissed.
10. At this stage, the learned counsel for the petitioner submits
that the interim protection granted by this Court should be continued for
a further period of eight weeks from today. We have already rejected
similar requests made by the other counsels in other matters. Hence we
do not find any reason to give such a protection. The prayer is rejected.
JUDGE JUDGE
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