Nilesh Prabhakar Jumle vs The Chairman Schedule Tribe Caste
2017 Latest Caselaw 5409 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                NAGPUR BENCH : NAGPUR.

                                         Writ Petition No.5328  of 2004

              Nilesh Prabhakar Jumle,
              Aged 43 years, Occ.-Service,
              R/o.-L-60, Vasant Nagar, Nagpur-22.                      .... Petitioner.

                                                          -Versus-

              1]       The Chairman, 
                       Scheduled  Tribe Caste Certificate Scrutiny Committee, 
                       Giripeth, Nagpur.

              2]      The Establishment Officer,
                      Maharashtra State Electricity Board, 
                      General Administrative Department, Dharavi Road, 
                      Matunga, Mumbai.                                        .... Respondents.
              -----------------------------------------------------------------------------------
              Shri  A.R. Ingole, Counsel for petitioner.
              Shri  V.P. Maldhure, Assistant Government Pleader for respondent 
              no.1.
              -----------------------------------------------------------------------------------

               Coram : R. K. Deshpande & 
                             Mrs. Swapna Joshi, JJ.

Dated : 02 nd August, 2017

ORAL JUDGMENT (Per R. K. Deshpande, J.)

The petitioner was employed as a 'Lower Division Clerk' in

the establishment of Maharashtra State Electricity Board on

16-10-1985 against the post reserved for Scheduled Tribe category.

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On 12-04-1994, the petitioner was promoted to the post of 'Assistant

Computer Operator' and on 21-12-1996 further promotion to the post

of 'Computer Operator' was granted. It seems that, all the

promotions were in the post reserved for Scheduled Tribe category.

This fact is disputed by the petitioner. Be that as it may, the

petitioner produced caste certificate dated 02-10-1979 at the time of

his appointment showing that he belongs to 'Kapadia Nayaka'

which is a notified as Scheduled Tribe at Serial No.35 of the

Constitution (Scheduled Tribes) Order, 1950. This certificate was

sent to the Scrutiny Committee for verification. On 29-10-2004, the

Committee has invalidated the caste claim and the said order is

therefore the subject matter in the present petition.

2] The service of the petitioner was protected by way of an

interim order passed by this Court on 09-11-2004 which was

continued thereafter. The petitioner as on this date has completed

about 32 years of service and he is aged about 56 years and due for

retirement on completion of 58 years of service.

3] With the assistance of the learned Counsels appearing for the

parties, we have gone through the order passed by the Scrutiny

Committee. The petitioner produced 15 documents in support of his

claim for 'Kapadia Nayaka' (Scheduled Tribe) category. Except one

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document dated 21-12-1937 which shows the caste Kapadia Nayaka

in the birth extract of male child born to Gopal, other documents

showing case as 'Kapadia Nayaka' pertain to post independence

period having no probative value. All these documents have been

taken into consideration by the Scrutiny Committee. The Committee

holds that the Police Vigilance Cell obtained the extract of school

admission record in which the caste of the petitioner, his father, real

paternal uncle and real paternal aunt is recorded as 'Shimpi'. The

petitioner was called upon to furnish his explanation on such report

and the response was that due to the tailoring occupation of his grand

father and great grand father the caste 'Shimpi' is recorded in the

school record. The Committee holds that while verifying the birth

entry dated 8-2-1935 of male child showing the caste as 'Kapadia

Nayaka'. The Police Vigilance Cell obtained information from the

District Rehabilitation Officer, Collectorate Wardha to inform that

there is no entry of village Amgaon (Ramji) of the year 1935-1936 in

the register of Birth and Death verified by them and also there is no

application regarding birth of a male child to Gopal Kapadia Nayaka.

The Committee recorded the finding on the basis of Police Vigilance

Cell that the birth entry dated 21-12-1937 produced by the

petitioner appears to be doubtful. The Committee holds that the

caste 'Shimpi' is separate caste included in the list of Other

Backward Class at Serial No.133.

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              4]       We find that the findings of fact recorded by the Committee 

are based upon the documentary evidence available on record and

the application of affinity test, which the petitioner failed to satisfy.

At any rate, the view taken by the Committee is a possible view of

the matter and we do not find any perversity in recording such

findings. The document regarding birth entry of male child on

21-12-1937 has been considered. The order, therefore, also does not

suffer from any application of mind to any of the documents

produced on record.

5] The learned Counsel for the petitioner submits that the

petitioner has rendered about 32 years of service and is aged about

56 years and he is due for retirement on completion of 58 years of

the age of superannuation. He, therefore, submits that the petitioner

be granted protection on the basis of Government Resolution dated

15-06-1995 and similar other Government Resolution and the

decision of the Hon'ble apex Court in the case of State of

Maharashtra v. Milind, reported in (2001) 1 SCC 4. The learned

Counsel appearing for the petitioner further submits that the

respondents be prevented from withdrawing the benefits availed by

the petitioner till this date.

              6]       On the basis of the recent decision of the Hon'ble apex Court 





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in Civil Appeal No.8928 of 2015 [Chairman and Managing Director

FCI and others v. Jagdish Balaram Bahira and others] which we

have recently followed in Writ Petition No.3373 of 2002

(Dattakishor Jagannath Kumbhare v. State of Maharashtra through

Secretary to Tribal Welfare Department, Mantralaya, Mumbai-32

and others) and connected matters, decided on 17-07-2017, it is not

possible for us to grant protection in service or to prevent withdrawal

of benefits which results in either violating the order passed by the

Hon'ble apex Court or the provisions of Section 10 of the

Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes

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

Special Backward Category (Regulation of Issuance and Verification

of) Caste Certificate Act, 2000 (Mah. Act. XXIII of 2001). We have

taken a view that the jurisdiction of this Court under Article 226 of

the Constitution of India is restricted to judge the correctness and

validity of the order passed by the Scrutiny Committee and not to

protect the service or prevent withdrawal of benefits to violate the

law laid down by the Apex Court. For the reasons recorded by us in

the said decision, we do not find any substance in the claim for

protection made by the petitioner.

              7]       We   have already noted in paragraph 1 of this judgment that 

              the   petitioner   has   denied     that   his   initial   appointment   and   also 





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subsequent appointments by promotion were from the Scheduled

Tribe category. According to the petitioner his appointment and

promotions were as a candidate belonging to Open Category. The

respondent no.2 shall be at liberty to consider this aspect of the

matter. If it is found that the initial appointment and further

promotions of the petitioner were from Open Category, this

judgment shall not come in the way of the parties in continuing the

petitioner in service.

8] In view of above, the writ petition is dismissed. Rule stands

discharged. No order as to costs.

9] At this stage, the learned Counsel for the petitioner submits

that the interim order passed by this Court protecting the service of

the petitioner be continued for further period of 8 weeks so as to

enable the petitioner to approach the Hon'ble apex Court. Similar

request made by several other counsels in other matters is already

rejected and therefore we do not find any reason to make an

exception also in this case. The prayer is therefore rejected.

                                                 JUDGE                                             JUDGE


                            Deshmukh