Bombay High Court
Mahadeo Ganpatrao Bende vs State Of Mah.Thr.Tribal Welfare ... on 17 July, 2017
Bench: Ravi K. Deshpande
1
wp3373.02+.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
(1) WRIT PETITION NO. 3373 OF 2002
with
(2) WRIT PETITION NO. 3213 OF 2000
with
(3) WRIT PETITION NO. 81 OF 2002
with
(4) WRIT PETITION NO. 283 OF 2002
with
(5) WRIT PETITION NO. 665 OF 2002
with
(6) WRIT PETITION NO. 666 OF 2002
with
(7) WRIT PETITION NO. 667 OF 2002
with
(8) WRIT PETITION NO. 2024 OF 2002
with
(9) WRIT PETITION NO.4011 OF 2002
with
(10) WRIT PETITION NO. 4252 OF 2002
with
(11) WRIT PETITION NO. 4754 OF 2002
with
(12) WRIT PETITION NO.5535 OF 2004
(1) WRIT PETITION NO. 3373 OF 2002
Dattakishor Jagannath Kumbhare,
Aged about 37 years,
In employment of the State Bank of India
as Assistant Manager, at present
posted at State Bank of India,
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:26 :::
2
wp3373.02+.odt
Branch Wani, District Yavatmal,
Residing at State Bank of India,
Branch at Wani, Distt. Yavatmal. ... Petitioner
Versus
1. State of Maharashtra,
through Secretary to Tribal Welfare
Department, Mantralaya,
Mumbai-32.
*2.Scheduled Tribe Caste Certificate
Scrutiny Committee,
through its Secretary and Deputy Director (R),
Adivasi Vikas Bhavan, Giripeth,
Nagpur.
(*Name of respondent No.2 deleted as
per Court's Order dated 20-6-2006).
3. Chief General Manager,
State Bank of India (Local head Office),
Mumbai Samachar Marg,
Fort, Mumbai.
4. Deputy General Manager,
State Bank of India,
Regional Office,
Sardar Vallabhbhai Patel Marg,
Near Nagpur Railway Station (Main),
Nagpur. ... Respondents
Shri P.K. Dhomne, Advocate for Petitioner.
Shri S.M. Ukey, Additional Government Pleader for Respondent No.1.
Shri S.N. Kumar, Advocate for Respondent Nos.3 and 4.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:26 :::
3
wp3373.02+.odt
with
(2) WRIT PETITION NO. 3213 OF 2000
Purushottam Wamdeo Bunde,
About 45 years,
Occupation - Tyre Fitter,
MSRTC,
R/o Akola, Agaskhed,
Chottoa Akot,
Dist. Akola. ... Petitioner
Versus
1. The State of Maharashtra,
through its Secretary,
Tribal Welfare Department,
Mantralaya, Mumbai-32.
2. The Chairman,
Scrutiny Committee for Verification of Tribe Claims,
Adivasi Vikas Bhavan,
Giripeth, Nagpur.
3. The Divisional Commissioner,
Maharashtra State Road Transport Corporation,
Sindhu durg (Kankawali).
4. The Depot Manager,
Maharashtra State Rod Transport Corporation,
Vijaydurga, Dist.Sindhudurg.
5. The Executive Magistrate,
Akola. ... Respondents
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:26 :::
4
wp3373.02+.odt
Shri Anil Mardikar, Senior Advocate, assisted by Shri S.G.Joshi,
Advocate for Petitioner.
Shri S.M. Ukey, Additional Government Pleader for Respondent No.1.
Shri V.G.Wankhede, Advocate for Respondent-MSRTC.
with
(3) WRIT PETITION NO. 81 OF 2002
Prakash s/o Nilkanthrao Burde,
Aged about 41 years,
Occupation - Service,
R/o Golibar Chowk,
Panchpaoli Road, Nagpur. ... Petitioner
Versus
1. The Deputy Director (Research)
and Member Secretary,
Scheduled Tribe Caste Scrutiny Committee,
Adiwasi Vikas Bhawan,
Giripeth Nagpur.
2. The State of Maharashtra,
through the Secretary,
Home Department,
Mantralaya, Mumbai-32. ... Respondents
None for Petitioner.
Shri N.S. Rao, Assistant Government Pleader for Respondent No.2.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:26 :::
5
wp3373.02+.odt
with
(4) WRIT PETITION NO. 283 OF 2002
Purushottam s/o Krishnarao Kitadikar,
Aged about 42 years,
Occupation - Service,
R/o Garoba Maidan, Kapse Square,
Nagpur 440 008. ... Petitioner
Versus
1. State of Maharashtra,
through its Secretary,
Social Welfare Tribal Development Committee,
Mantralaya,
Mumbai 400 032.
2. The Scheduled Tribe Caste Certificate
Scrutiny Committee,
Adiwasi Vikas Bhawan,
Giripeth, Nagpur,
Through Member-Secretary.
3. The Divisional Joint Director (Agril),
Nagpur Division, Ramdaspeth. Nagpur. ... Respondents
None for Petitioner.
Shri V.P. Maldhure, Assistant Government Pleader for Respondent
Nos.1 and 3.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:26 :::
6
wp3373.02+.odt
with
(5) WRIT PETITION NO. 665 OF 2002
Raju s/o Chintaman Nikhare,
Aged about 38 years,
Occupation - Service,
R/o Colliery Ward, Ward No.5,
At Post : Warora, Tq.Warora,
Dist. Chandrapur. ... Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai-32.
2. Scheduled Tribe Caste Certificate Scrutiny Committee,
Adiwasi Vikas Bhawan,
Giripeth, Nagpur.
3. Deputy Director,
Establishment MSEB Second Clerk,
Prakash Garh,
Bandra (East), Mumbai 400 051.
4. The Superintending Engineer ( O & M),
Mandal, Maharashtra State Electricity Board,
Chandrapur, Dist. Chadrapur. ... Respondents
None for Petitioner.
Shri V.P. Maldhure, Assistant Government Pleader for Respondent
Nos.1 and 2.
Shri A.D. Mohgaonkar, Advocate for Respondent No.4.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:26 :::
7
wp3373.02+.odt
with
(7) WRIT PETITION NO. 666 OF 2002
Subhash s/o Mahadeo Nandanwar,
Aged about 29 years,
Occupation - Service,
R/o at Post : Sawela,
Post : Potega, Distt. Gadchiroli. ... Petitioner
Versus
1. The State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai-32.
2. Scheduled Tribe Caste Certificate
Scrutiny Committee, Adiwasi Vikas
Bhawan, Giripeth, Nagpur.
3. Deputy Director (Establishment Officer),
M.S.E.B., Second Clerk,
Prakash Garh, Bandra (East),
Mumbai - 400 051.
4. The Superintending Engineer (O & M),
Mandal, Maharashtra State Electricity Board,
Chandrapur, Distt. Chandrapur. ... Respondents
None for Petitioner.
Shri V.P. Maldhure, Assistant Government Pleader for Respondent
Nos.1 and 2.
Shri A.D. Mohgaonkar, Advocate for Respondent No.4.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:27 :::
8
wp3373.02+.odt
with
(7) WRIT PETITION NO. 667 OF 2002
Hemant s/o Balaji Dhakate,
Aged about 33 years,
Occupation - Service,
R/o Babupeth, Ward No.1,
Near Balaji Mandir, Chandrapur. ... Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai-32.
2. Scheduled Tribe Caste Certificate Scrutiny Committee,
Adiwasi Vikas Bhawan,
Giripeth, Nagpur.
3. Deputy Director (Establishment Officer),
M.S.E.B. Second Clerk,
Prakash Garh, Bandra (East),
Mumbai - 400 051.
4. The Superintending Engineer ( O & M),
Mandal, Maharashtra State Electricity Board,
Chandrapur, Dist. Chandrapur. ... Respondents
None for Petitioner.
Shri V.P. Maldhure, Assistant Government Pleader for Respondent
Nos. 1 and 2.
Shri A.D.Mohgaokar, Advocate for Respondent No. 4.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:27 :::
9
wp3373.02+.odt
with
(8) WRIT PETITION NO. 2024 OF 2002
Prakash Falgun Batrakhaye,
Aged 30 years,
B.Com., Lodhara Man Sarovar,
C-11/703, Kalyan (East),
Thane. ... Petitioner
Versus
1. State of Maharashtra,
through its Secretary,
Tribal Welfare Department,
Mantralaya, Mumbai-400 032.
2. Scheduled Tribes Certificate Scrutiny Committee,
through its Secretary & Deputy Director ®,
Adivasi Vikas Bhavan, Giripeth,
Nagpur.
3. Maharashtra Public Service Commission,
through its Secretary,
Bank of India Bldg., 3rd Floor,
Mahatma Gandhi Rd.,
Fort, Mumbai-1.
4. State of Maharashtra,
through its Secretary,
General Administration Department,
Mantralaya, Mumbai-32. ... Respondents
None for Petitioner.
Shri V.P. Maldhure, Assistant Government Pleader for Respondent
Nos.1, 2 and 4.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:27 :::
10
wp3373.02+.odt
with
(9) WRIT PETITION NO. 4011 OF 2002
Shri Prakash Rushiji Binekar,
Aged about 39 years,
Occupation - Service,
R/o Qrtr. No.Super D, 11/12, Gol Bazar,
Prakash Nagar, Khaparkheda,
Tah. Saoner, Dist. Nagpur. ... Petitioner
Versus
1. State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai-32.
2. The Commissioner and Chairman,
Scheduled Tribe Caste Certificate Scrutiny
Committee,
through its Member-Secretary and
Deputy Director (R),
Adiwasi Vikas Bhawan,
Giripeth, Nagpur.
3. The Joint Secretary (Technical),
M.S.E.B., Prakashgarh, Bandra (East),
Mumbai-51.
4. Chief Engineer,
Gen. (O & M),
M.S.E.B., Khaparkheda. ... Respondents
Shri N.R. Pathrabe, Advocate for Petitioner.
Shri S.M. Ukey, Additional Government Pleader for Respondent
No.1.
Shri R.E. Moharir, Advocate for Respondent Nos.3 and 4.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:27 :::
11
wp3373.02+.odt
with
(10) WRIT PETITION NO. 4252 OF 2002
Diwakar s/o Bhojraj Mahure,
Aged 32 years,
Occupation - Service,
Conductor in Ramtek Depot of Maharashtra
State Road Transport Corporation,
Resident of Hingna Dhangarpura,
Tq. Hingna, Dist. Nagpur. ... Petitioner
Versus
1. State of Maharashtra,
through Secretary,
Ministry of Tribal Welfare Department,
Mantralaya, Mumbai-440 032.
2. Caste Certificate Scrutiny Committee,
through its Commissioner/Secretary,
Adivasi Vikas Bhavan,
Giripeth, Nagpur.
3. Divisional Controller,
Maharashtra State Road Transport
Corporation, Nagpur Division,
Nagpur.
4. Maharashtra State Road Transport Corporation,
through its Divisional Controller,
Vidya Vihar (West),
Mumbai-400 086. ... Respondents
Shri N. Phadnis, Advocate for Petitioner.
Ms Geeta Tiwari, Assistant Government Pleader for Respondent
Nos.1 and 2.
Shri R.S. Charpe, Advocate for Respondent Nos.3 and 4.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:27 :::
12
wp3373.02+.odt
with
(11) WRIT PETITION NO. 4754 OF 2002
Mahadeo son of Ganpatrao Bende,
Aged 32 years,
Working as a Talathi under the
Sub-Divisional Officer, Balapur,
Resident of Mahakali Nagar,
Hariharpeth, Behind Primary School
No.19, run by the Municipal Council,
Akola, Tahsil & District Akola. ... Petitioner
Versus
1. State of Maharashtra,
through the Secretary to Tribal Welfare
Department, Mantralaya,
Mumbai-32.
2. The Committee for Scrutiny and Verification
of Tribe Claims, Amravati,
through its Secretary and Deputy Director.
3. The Collector, Akola, T &D Akola.
4. The Sub-Divisional Officer,
Murtizapur, Tahsil Murtizapur,
District Akola.
5. The Sub-Divisional Officer,
Balapur, Taluq Balapur,
District Akola. ... Respondents
None for Petitioner.
Ms Geeta Tiwari, Assistant Government Pleader for Respondent
Nos.1, 3, 4 and 5.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:27 :::
13
wp3373.02+.odt
with
(12) WRIT PETITION NO.5535 OF 2004
Ku. Aarti d/o Shamrao Ambalwar,
Aged about 27 years,
Occupation - Service,
R/o Khalashi Line,
Mohan Nagar,
Shiv Mandir Road,
Nagpur. ... Petitioner
Versus
1. State of Maharashtra,
through the Secretary,
Tribal Development Department,
Mantralaya, Mumbai-32.
2. The Schedule Tribe Caste Certificate
Scrutiny Committee, Nagpur, through
its Dy. Director, Adiwasi Vikas Bhawan,
Giripeth, Nagpur.
3. Police Superintendent,
Nagpur District (Rural),
Nagpur. ... Respondents
Shri C.V. Kale, Advocate for Petitioner.
Ms Geeta Tiwari, Assistant Government Pleader for Respondent
Nos.1 to 3.
::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:27 :::
14
wp3373.02+.odt
CORAM : R.K. DESHPANDE & MRS. SWAPNA JOSHI, JJ.
DATED : 17TH JULY, 2017
ORAL JUDGMENT (PER : R.K. DESHPANDE, J.) :
(1) WRIT PETITION NO.3373 OF 2002 :
1. The petitioner was appointed in the respondent-State Bank
of India as Clerk-cum-Cashier on 9-9-1985 against a post reserved for
Scheduled Tribe category. He was confirmed in the employment on
9-3-1986. He was thereafter promoted to the post of Assistant
Manager on 1-8-1987, and since then he is continuously working on
the said post till this date. The petitioner has completed 32 years of
service.
2. The claim of the petitioner was that he belongs to
'Halba/Halbi', Scheduled Tribe category. His claim was invalidated by
the Caste Scrutiny Committee by an order dated 26-11-2001. The
petitioner filed Writ Petition No.3314 of 2002, which was dismissed on
30-9-2003 and it attained the finality.
3. By this petition, the limited relief of protection in service is
wp3373.02+.odt
claimed on the basis of the decision of the Apex Court in the cases of
State of Maharashtra v. Milind and others, reported in (2001) 1 SCC 4,
("Milind's case"); State of Maharashtra v. Om Raj, reported in
(2007) 14 SCC 488; and Sanjay Madhusudan Punekar v. State of
Maharashtra and others, reported in 2002(2) Mh.L.J. 300, delivered by
the Apex Court; and the decision of the Full Bench delivered by this
Court in the case of Arun s/o Vishwanath Sonone v. State of
Maharashtra and others, reported in 2015(1) Mh.L.J. 457.
4. Recently, the Apex Court, in its decision rendered on
6-7-2017 in Civil Appeal No.8928 of 2015 [Chairman and Managing
Director FCI and others v. Jagdish Balaram Bahira and others]
[hereinafter referred to as "the said decision"], has overruled the
decision of the Full Bench of this Court in Arun Sonone's case, as a
result of which, the protection provided by the decision of the Full
Bench has become unavailable.
5. After noticing the said decision, we asked the Registry of
this Court at Nagpur to list all such matters assigned to this Bench up
to 2010 claiming protection of service upon invalidation of the caste or
wp3373.02+.odt
tribe claimed either as a main relief or as an alternate relief relying
upon the Government Resolutions, Circulars, etc., and the decision of
the Apex Court in Milind's case. The office is in the process of
preparing such list. However, about 150 matters are listed before us in
such category. The members of the Bar were noticed in advance of the
disposal of such matters, if possible, on the basis of this recent decision
of the Apex Court.
6. We have heard the learned counsels appearing for the
petitioners in several petitions, including Shri Anil Mardikar, the
learned Senior Advocate, assisted by Shri S.G. Joshi, Advocate. The
learned counsels appearing for the petitioners have relied upon several
decisions of the Apex Court and of this Court granting protection of
service upon invalidation of the caste claim, including the three
decisions (i) Om Raj (supra), (ii) Sanjay Madhusudan Punekar (supra),
and (iii) Punjab National Bank v. Vilas Bokade and another, reported in
(2008) 14 SCC 545, and it is urged that these decisions have not been
overruled. It is also urged that this Court has granted protection to
hundreds of employees on the basis of these decisions and the decision
of the Full Bench in Arun Sonone's case, cited supra, and such
wp3373.02+.odt
protection cannot be denied to the petitioners in all these petitions.
7. In order to consider various contentions raised before us,
we are required to first-of-all find out as to whether there is really any
scope left for this Court to protect the service or prevent the
withdrawal of benefits, as urged before this Court. We would,
therefore, like to appreciate the overall impact and consequences of
the recent decision of the Apex Court, referred to above.
8. Following the decision of the Apex Court in the cases of
Bhaiya Ram Munda v. Anirudh Patar and others, reported in
(1971) 4 SCR 804; and Dina v. Narayan Singh, reported in
38 ELR 212, the Division Bench of this Court in the case of
Milind Shardrao Katware v. The State of Maharashtra, reported in
1986(1) BCR 402, took the view that it was permissible to enquire
whether any sub-division of a tribe was a part and parcel of the tribe
mentioned therein and 'Halba-Koshti' is a sub-division of main tribe
'Halba/Halbi' as per Entry No.19 in the Scheduled Tribes Order
applicable to Maharashtra.
wp3373.02+.odt
9. The Constitution Bench of the Apex Court in Milind's case
overruled the decisions of the Apex Court in Bhaiya Ram Munda and
Dina's cases and consequently the aforesaid decision of the High Court.
It was held that it is not permissible to hold enquiry and let in evidence
to decide or declare that any tribe is included in the general name even
though not specifically mentioned in the concerned entry in the
Constitution (Scheduled Tribes) Order, 1950, and the High Court
committed an error in holding that 'Halba-Koshti' is a sub-tribe within
the meaning of Entry No.19 of 'Halba/Halbi' in the said Order. The
judgment of the High Court was reversed. However, in the operative
part, it was held that all the admissions and appointments that have
become final prior to 28-11-2000 shall remain unaffected by the
decision in Milind's case by the Apex Court.
10. In the subsequent decision of the Apex Court in the case of
Kavita Solunke v. State of Maharashtra and others, reported in
(2012) 8 SCC 430, the Apex Court was dealing with the contention
that the appointment of the appellant having attained finality, could
not have been set aside on the ground that 'Koshti-Halbas' were not
wp3373.02+.odt
'Halbas', entitled to the benefit of reservation as Scheduled Tribes. The
Apex Court considered the question as to whether the decision in
Milind's case, followed in the subsequent decisions, extended
protection against ouster from service to those appointed in the
Scheduled Tribe category whose claims were invalidated by the
Scrutiny Committee. Taking into consideration the earlier decisions of
the Apex Court in the cases of (i) R. Vishwanath Pillai v. State of
Kerala, reported in (2004) 2 SCC 105; (ii) Bank of India v. Avinash D.
Mandivikar, reported in (2005) 7 SCC 690; (iii) State of Maharashtra v.
Sanjay K. Nimje, reported in (2007) 14 SCC 481; and (iv) Union of
India v. Dattatraya Namdeo Mendhekar, reported in (2008) 4 SCC 612,
it was held that the Constitution Bench in Milind's case noticed the
background in which the confusion had prevailed for many years and
the fact that the admissions and appointments were made for a long
time treating 'Koshti' as Scheduled Tribe and directed that such
admissions and appointments wherever the same had attained finality,
will not be affected by the decision taken by this Court. Reliance was
also placed upon the Division Bench decision of the Apex Court in
Om Raj's case (supra).
wp3373.02+.odt
11. In Kavita Salunke's case, it was held that in Milind's case, the
Scrutiny Committee never alleged any fraud or any fabrication or any
misrepresentation that would possibly disentitle the candidate to get
relief from the Court and there is no accusation that the certificate
obtained was false, fabricated and manipulated by concealment or
otherwise. The Apex Court relied upon the earlier decision in
Vilas Bokade's case (supra) to hold that the High Court was right in
holding that the observations in Milind's case apply and the service
stands protected. The Court, therefore, distinguished the decisions of
the Apex Court in the cases of (i) R. Vishwanath Pillai (supra),
(ii) Additional General Manager/Human Resource BHEL v. Suresh
Ramkrishna Burde, reported in (2007) 5 SCC 336; (iii) Sanjay K. Nimje
(supra), and (iv) Dattatraya Namdeo Mendhekar (supra), wherein the
protection was refused.
12. The same question again arose in the case of Shalini v. New
English High School Association and others, reported in
(2013) 16 SCC 526. The Court considered the question whether the
appellant's employment was justifiably terminated because a Caste
wp3373.02+.odt
Scrutiny Committee after a passage of several decades, found her
disentitled to claim the benefits enuring to 'Halbas'. The first decision
considered in detail was in the case of R. Vishwanath Pillai, by a Bench
of three Judges; and the another decision considered was in the case of
Dattaraya Mendhekar, by a Bench of three Judges, apart from the other
decisions. The Court also considered the impact of bringing into force
the Maharashtra Scheduled Castes, 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 (Maharashtra Act No.XXIII
of 2001), more particularly Section 10 therein.
13. In Shalini's case, the Apex Court made a distinction between
the cases involving an element of deceitfulness in order to derive
unfair or undeserved benefits and the cases where an innocent
statement which later on transpires to be incorrect. It holds that in the
cases of dishonest and mendacious persons who had deliberately
claimed consanguinity with Scheduled Castes or Scheduled Tribes,
etc., the persons would justifiably deserve the immediate cessation of
all the benefits, including the termination of services under Section 10
wp3373.02+.odt
of the Maharashtra Act No.XXIII of 2001. It holds that it is not the
intent of law to punish an innocent person and subject him to
extremely harsh punishment. It was held that an innocent statement,
which later transpires to be incorrect, may not attract punitive or
detrimental consequences under Section 10 of the said Act on the
person making it, as it is one made by error. The Court also
considered and relied upon its decision in Punjab National Bank's case
(supra) to hold that the Government Resolution dated 15-6-1995 and
the office memorandum dated 10-8-2008 issued by the Government of
India would continue to apply even after passing of the Maharashtra
Act No.XXIII of 2001 so long as the appointment had taken place prior
to 1995. The Court found palpable wisdom in granting such
protection by issuing the Government Resolution and the office
memorandum.
14. This Court in its decision of the Full Bench in Arun Sonone's
case held that upon invalidation of the caste claim, all appointments
made in public employment up to 28-11-2000 stand protected. On the
basis of the decisions of the Apex Court in the cases of Milind, Om Raj,
Punjab National Bank, Kavita and Shalini, it was held by the Full Bench
wp3373.02+.odt
that all appointments and promotions made up to 15-6-1995 stand
protected by virtue of the Government Resolution dated 15-6-1995 and
the office memorandum dated 10-8-2008 issued by the Government
of India. It was held that only the appointments made subsequent to
15-6-1995 till 28-11-2000 that have become final also stand
protected, but the promotions made during the period from 15-6-1995
to 28-11-2000 cannot be protected.
15. In the decision of the Full Bench in Arun Sonone's case, it
was noticed that the Apex Court has held in the decision of Milind's
case that the earlier decisions rendered by it in Bhaiya Ram Munda and
Dina's cases did not lay down a correct position of law and were
overruled. In this background, it was held by the Full Bench that it
was the doctrine of prospective overruling which was invoked in the
case of Milind to protect all the appointments which became final prior
to the date of the judgment. In paras 49 to 51, this aspect was
considered and it was held that to avoid multiplicity of litigation and
reopening of settled issues, the directions in Milind's case were issued
to protect all admissions and appointments that had become final. In
the absence of such directions, the judgment would have operated
wp3373.02+.odt
retrospectively, creating uncertainty, instability and chaotic situation.
It was held that such a decision of the Apex Court was binding upon
the High Court under Article 141 of the Constitution of India.
16. Relying upon the decision of the Apex Court in the cases of
(i) B.C. Chaturvedi v. Union of India and others, reported in
(1995) 6 SCC 749; and (ii) Ramesh Chandra Sankla and others v.
Vikram Cement and others, reported in (2008) 14 SCC 58, it was held
by the Full Bench that even in equity jurisdiction under Article 226 of
the Constitution of India, such protection can be granted by the High
Court if there is no fraud practised in securing an appointment. It was
held in para 67 by the Full Bench that the High Court cannot grant
such protection in the employment after recording a finding that such
employment was secured by practising fraud or by producing false or
fabricated caste certificate.
17. Now, the Apex Court has delivered the said decision arising
out of the decision of the Full Bench of this Court in Arun Sonone's
case. It is held that the directions issued by the Constitution Bench in
Milind's case were under Article 142 of the Constitution of India, and
wp3373.02+.odt
once the Legislature had stepped in by invoking the said Act, the
power under Article 142 would not be exercised to defeat the
legislative prescription. The Apex Court takes note of the fact that the
decision in Milind's case was delivered on 28-11-2000, whereas the
Maharashtra Act No.XXIII of 2001 was brought into force on
18-10-2001. It holds in para 46 that "Judicial directions must be
consistent with law. Several decisions of two judge benches noticed
earlier, failed to take note of Maharashtra Act XXIII of 2001. The
directions which were issued under Article 142 were on the erroneous
inarticulate premise that the area was unregulated by statute. Shalini
noted the statute but misconstrued it".
18. It is held by the Apex Court in the said decision that the Full
Bench has committed an error in holding that it was the doctrine of
prospective overruling which was invoked by the Apex Court in
Milind's case. In para 11 of the said decision, the Apex Court has held
that "the judgment of the Bombay High Court holding that
'Halba-Koshti' formed a part of the designated scheduled tribe,
'Halba-Halbi' was reversed. The declaration of law by this Court under
Article 141, negated the position of law enunciated by the Bombay
wp3373.02+.odt
High Court. This was, it must be emphasized, not a case of prospective
over-ruling". It is also held in para 48 by the Apex Court that "The
High Court has even gone to the extent of holding that the decision in
Milind (supra) was in the nature of prospective overruling of the law
which was laid down by the Bombay High Court. The above view of
the Bombay High Court is clearly unsustainable." It holds that neither
the judgment in Milind (supra) nor any of the judgments of this Court
which have construed it, have held that Milind was an exercise in
prospective overruling and the High Court was therefore in error. The
Apex Court has held that the jurisdiction under Article 142 was not
available to the High Court to grant such protection in exercise of its
jurisdiction under Article 226 of the Constitution of India, and the
High Court, therefore, erred in arrogating that jurisdiction to itself.
19. The Apex Court has held in the said decision that Kavita
Solunke's case does not notice the provisions of the Maharashtra Act
No.XXIII of 2001. It is further held that if the provisions of the said Act
were to be considered, it would be apparent that once the conditions
of cancellation are fulfilled and an order of cancellation is passed
under Section 7, withdrawal of all benefits which have accrued on the
wp3373.02+.odt
basis of the claim, which is invalidated, cannot be passed on the theory
that there was absence of dishonest intent.
20. It is held in the said decision that in view of the earlier
decisions of the three Judges of the Apex Court in the cases of
R. Vishwanath Pillai and Dattatraya Mendhekar (supra), the decision by
a Bench of two Judges in Shalini's case was in error in importing the
requirement of dishonest intent into the provision of Section 10 of the
Maharashtra Act No.XXIII of 2001. It is held that the expression 'false'
used under Section 10 must be construed in contra-distinction to that
which is true, genuine or authentic, and 'falsity' means setting up of a
claim to belong to a reserved category. It is further held that
Section 10 makes no substantive difference because withdrawal of
benefits is an event which flows naturally and as a plain consequence
of invalidation of claim. It is held that the decision in Shalini (supra)
would result in serious consequences and would eviscerate the
statutory provisions and the interpretation placed on Section 10 of the
Maharashtra Act No.XXIII of 2001 in Shalini's case is erroneous and
does not reflect correct position of law.
wp3373.02+.odt
21. It is further held by the Apex Court in the said decision that
the administrative circulars and the Government Resolutions are
subservient to the legislative mandate and cannot be contrary either to
constitutional norms or statutory principles to protect the services of
an individual whose claims are found to be false upon verification by
the Scrutiny Committee. It is held that the protection of claim of a
usurper is an act of deviance to the constitutional scheme as well as to
statutory mandate. It holds that by granting of protection, the
legislative mandate contained in Section 10 of the Maharashtra Act
No.XXIII of 2001 cannot be nullified. In para 17 of the decision in
Sanjay Nimje's case (supra), it was held that the Government
Resolution of 15-6-1995 has no application and it cannot outweigh the
provisions of Section 10 of the Maharashtra Act No.XXIII of 2001. In
Punjab National Bank's case (supra), this was held in paras 6 and 11 to
be obiter dicta. Though the Apex Court has not now specifically
overruled the decisions in Om Raj, Sanjay Madhusudan Punekar and
Punjab National Bank, they stand impliedly overruled and reliance
upon it by the petitioner is misplaced.
22. The Apex Court has in the said decision reversed the earlier
wp3373.02+.odt
view taken by it in the cases of Kavita Salunke and Shalini, and
consequently the view taken by the Full Bench in Arun Sonone's case is
held manifestly erroneous and it is overruled.
23. The Apex Court has also put restraints upon its own
jurisdiction under Article 142 of the Constitution of India. The
relevant portion in para 54 of the said decision, is reproduced below :
"54. ... In our view, the state legislature has made a
statutory decision amongst competing claims, based on a
public policy perspective which the court must respect. The
argument that there is a loss of productive societal resources
when an educational qualification is withdrawn or a student
is compelled to leave the course of studies (when he or she is
found not to belong to the caste or tribe on the basis of which
admission to a reserved seat was obtained) cannot possibly
outweigh or nullify the legislative mandate contained in
Section 10 of the state legislation. When a candidate is found
to have put forth a false claim of belonging to a designated
caste, tribe or class for whom a benefit is reserved, it would be
a negation of the rule of law to exercise the jurisdiction under
Article 142 to protect that individual. Societal good lies in
wp3373.02+.odt
ensuring probity. That is the only manner in which the
sanctity of the system can be preserved. The legal system
cannot be seen as an avenue to support those who make
untrue claims to belong to a caste or tribe or socially and
educationally backward class. These benefits are provided
only to designated castes, tribes or classes in accordance with
the constitutional scheme and cannot be usurped by those
who do not belong to them. The credibility not merely of the
legal system but also of the judicial process will be eroded if
such claims are protected in exercise of the constitutional
power conferred by Article 142 despite the state law."
In para 57(xi), it is held as under :
"57. For these reasons, we hold and declare that
... ... ...
(xi) Though the power of the Supreme Court under
Article 142 of the Constitution is a constitutional
power vested in the court for rendering complete
justice and is a power which is couched in wide
terms, the exercise of the jurisdiction must have due
regard to legislative mandate, where a law such as
Maharashtra Act XXIII of 2001 holds the field."
wp3373.02+.odt
24. No doubt, it is true that following the decision of the Full
Bench of this Court in Arun Sonone's case, several judgments are
delivered by different Division Benches of this Court at the Principal
Seat as well as at the Benches and the protection was accordingly
extended not only in respect of the degrees and diplomas obtained
from the educational institutions, but also in the appointments and
promotions. In all such cases, the Court proceeded to grant protection
after recording the finding in terms of the decision of the Apex Court
in the cases of Punjab National Bank, Kavita Solunke and Shalini that
there is no case of practising fraud, deceit, misrepresentation, etc., in
obtaining degree, diploma, appointment and other benefits and
concessions.
25. Recently, we have disposed of two writ petitions - (i) Writ
Petition No.3055 of 2000 [Vasant Ramchandra Kumbhare v. Scheduled
Tribes Certificate Committee, Nagpur and others], and (ii) Writ Petition
No.3966 of 2000 [Dr. Subhash s/o Pundlik Kumbhare v. The State of
Maharashtra and another], on 27-6-2017. It is held that in the absence
of fraud, fabrication or misrepresentation, all the appointments and
promotions prior to 15-6-1995 stand protected by virtue of the
wp3373.02+.odt
Government Resolutions dated 15-6-1995, 24-7-1998 and 30-6-2004
issued by the State of Maharashtra, the office memorandum
dated 10-8-2008 issued by the Government of India, and the decisions
of the Apex Court in Vilas Bokade and Shalini's cases. It was held that
in terms of the decision of the Apex Court in Milind's case, only the
initial appointments made between 15-6-1995 and 28-11-2000, which
have become final, would stand protected. It was further held that the
protection is not available for the post to which such candidate is
promoted after 15-6-1995.
26. In our view, the decision of the Full Bench of this Court in
Arun Sonone's case (supra) has been overruled by the Apex Court on
each and every count, leaving no scope for argument in favour of
granting any kind of protection to the degrees, diplomas,
appointments, promotions, elections, etc., after invalidation of the
caste claim or to prevent any withdrawal of different kinds of benefits
or concessions meant for the genuine backward class candidates. It is
not possible for us to cite every decision reported or unreported,
delivered by the different Benches of this Court, granting protection on
the basis of the decision of the Full Bench of this Court in Arun
wp3373.02+.odt
Sonone's case. We, therefore, hold that all such decisions, which run
contrary to the law laid down by the Apex Court in the said decision,
including the recent decision delivered by us in two writ petitions - (i)
Writ Petition No.3055 of 2000 [Vasant Ramchandra Kumbhare v.
Scheduled Tribes Certificate Committee, Nagpur and others], and (ii)
Writ Petition No.3966 of 2000 [Dr. Subhash s/o Pundlik Kumbhare v.
The State of Maharashtra and another], on 27-6-2017, stand impliedly
overruled, and it is not permissible for this Court to grant protection
extended by such decisions.
27. Once it is held that the Apex Court did not invoke the
doctrine of prospective overruling in Milind's case, we have to see what
is the effect of such decision. In the case of B.A. Linga Reddy v.
Karnataka State Transport Authority, reported in (2015) 4 SCC 515, it
is held that the normal rule is that the judgment operates
retrospectively unless it is declared to be prospective in operation
specifically and such a power is vested only in the Apex Court. The
effect of retrospective operation of the judgment is that the law
declared by the Apex Court operates since its inception. Applying such
principle, it will have to be held that the decision of the Apex Court in
wp3373.02+.odt
Bhaiya Ram Munda and Dina's cases, cited supra, and consequently the
decision of the Bombay High Court in Milind's case never existed and it
was not permissible to grant benefits, concessions or privileges of
'Halba/Halbi', Scheduled Tribes, to 'Halba-Koshtis' or 'Koshtis' at any
point of time. Similarly, the effect of overruling of the decision of the
Full Bench in Arun Sonone's case by the Apex Court is that the
protection was never available to be granted by the High Court and the
argument that the petitioner is entitled to same treatment, holds no
substance. Resultantly, it will be open for the employer to withdraw
all such benefits, concessions and privileges received by the persons,
who are declared as non-tribals.
28. Section 10 of the Maharashtra Act No.XXIII of 2001 deals
with the benefits secured on the basis of false caste certificate to be
withdrawn, and it runs as under :
"10. (1) Whoever not being a person belonging to any of
the Scheduled Castes, Scheduled Tribes, De-notified Tribes,
Vimukta Jatis, Nomadic Tribes, Other Backward Classes or
Special Backward Category secures admission in any
educational institution against a seat reserved for such Castes,
wp3373.02+.odt
Tribes or Classes, or secures any appointment in the
Government, local authority or in any other Company or
Corporation, owned or controlled by the Government or in
any Government aided institution or Co-operative Society
against a post reserved for such Castes, Tribes or Classes by
producing a false Caste Certificate shall, on cancellation of the
Caste Certificate by the Scrutiny Committee, be liable to be
debarred from the concerned educational institution, or as the
case may be, discharged from the said employment forthwith
and any other benefits enjoyed or derived by virtue of such
admission or appointment by such person as aforesaid shall be
withdrawn forthwith.
(2) Any amount paid to such person by the Government
or any other agency by way of scholarship, grant, allowance
or other financial benefit shall be recovered from such person
as an arrears of land revenue.
(3) Notwithstanding anything contained in any Act for
the time being in force, any Degree, Diploma or any other
educational qualification acquired by such person after
securing admission in any educational institution on the basis
of a Caste Certificate which is subsequently proved to be false
shall also stand cancelled, on cancellation of such Caste
Certificate, by the Scrutiny Committee.
wp3373.02+.odt
(4) Notwithstanding anything contained in any law for
the time being in force, a person shall be disqualified for being
a member of any statutory body if he has contested the
election for local authority, Co-operative Society or any
statutory body on the seat reserved for any of Scheduled
Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes or Special Backward
Category by procuring a false Caste Certificate as belonging to
such Caste, Tribe or Class on such false Caste Certificate being
cancelled by the Scrutiny Committee, and any benefits
obtained by such person shall be recoverable as arrears of land
revenue and the election of such person shall be deemed to
have been terminated retrospectively."
The said decision revolves around Section 10 of the Maharashtra Act
No.XXIII of 2001, reproduced above. In view of the law laid down in
this decision, it is not permissible for the High Court under Article 226
or 227 of the Constitution of India to relax the rigour or the force with
which Section 10 was introduced. The jurisdiction of equity is not
available to violate this law laid down by the Apex Court and
consequently to violate the mandatory provision of Section 10 of the
said Act. Any relaxation by the High Court in the consequences
provided under Section 10 upon invalidation of a caste or tribe claim,
wp3373.02+.odt
would amount to arrogating the jurisdiction under Article 142 of the
Constitution of India or perpetuating the fraud on the Constitution of
India. The High Court also cannot in such event prevent -
(i) withdrawal of benefits/concessions already enjoyed, or (ii) a decree
or a diploma or a certificate awarded, or (iii) any disqualification
incurred for being a member of the Statutory Body, Local Authority or
Co-operative Society. The jurisdiction available under Article 226 of
the Constitution of India is only to judge the correctness and validity of
the order passed by the Scrutiny Committee and not to provide any
sort of protection or prevent withdrawal of benefits or concessions
availed as a candidate of backward class categories for whom they
were meant, once the order is found to be correct and valid.
29. In view of above, the petitioner is not entitled to protection
in service either in the initial post of Clerk-cum-Cashier or in the
promoted post as Assistant Manager. We cannot prevent any action
under Section 10 of the Maharashtra Act No.XXIII of 2001 of
termination of the services of the petitioner or withdrawal of any
benefits and concessions made available to the petitioner by the
employer, who is at liberty to adopt such mode, as is permissible in
wp3373.02+.odt
law.
30. The petition is, therefore, dismissed. Rule is discharged.
There shall be no order as to costs.
31. We now proceed to deal with every case on the basis of the
facts and circumstances occurring therein.
(2) WRIT PETITION NO.3213 OF 2000 :
1. The claim of the petitioner for ' Koli Mahadeo', Scheduled
Tribe, has been invalidated by the respondent No.2-Scrutiny
Committee by its order dated 24-12-1999. The Committee has taken
into consideration all the documents produced in support of his claim.
We, however, do not find even a single document pertaining to the
period prior to 1950 having probative value indicating the caste of the
petitioner as 'Koli Mahadeo', Scheduled Tribe. The Committee has
applied affinity test and considered the documents which were issued
subsequent to 1962.
2. We do not find any perversity in recording the finding that
wp3373.02+.odt
the petitioner has failed to establish the claim for ' Koli Mahadeo',
Scheduled Tribe. The alternate relief is of protection in service.
Shri Anil Mardikar, the learned Senior Advocate, assisted by
Shri S.G. Joshi, Advocate, for the petitioner submits that the petitioner
was appointed as Tyre Fitter in the services of the respondent-MSRTC
and after rendering number of years' service, he attained the age of
superannuation.
3. For the reasons which we have recorded above, we do not
find any reason to grant any kind of protection to the petitioner. We
cannot prevent the consequences of Section 10 of the Maharashtra Act
No.XXIII of 2001. The petition is dismissed. Rule stands discharged.
No order as to costs.
(3) WRIT PETITION NO.81 OF 2002 :
1. In this petition, the petitioner was appointed as Police
Sub-Inspector in the year 1985 as a candidate belonging to ' Halba',
Scheduled Tribe to occupy such post. His claim has been invalidated
by the Scrutiny Committee by an order dated 3-2-2001. The petitioner
wp3373.02+.odt
has rendered total 32 years of service.
2. We have gone through the said order of the Scrutiny
Committee. There is not even a single document of the period prior to
1950 produced on record, in support of the claim of the petitioner that
the petitioner belongs to 'Halba', Scheduled Tribe. The Committee,
after applying the affinity test and considering the documents placed
on record, holds that the caste certificate dated 19-3-1985 produced
by the petitioner is cancelled under Section 7 and also confiscated. We
do not find any perversity in the findings of fact recorded by the
Scrutiny Committee.
3. The alternate relief is claimed by seeking protection in
service on the basis of the Government Resolution dated 15-6-1995
and the decision of the Apex Court in Milind's case. The contention is
that the petitioner has till this date must have rendered total 32 years
of service. It is urged that the respondents are likely to recover the
salary paid or would disentitle the petitioner to all post-retiral benefits.
4. For the reasons which are recorded above, the petitioner is
wp3373.02+.odt
not entitled to any protection. We also cannot prevent any action
giving effect to Section 10 of the Maharashtra Act No.XXIII of 2001.
The petition is, therefore, dismissed. Rule stands discharged. No
order as to costs.
(4) WRIT PETITION NO.283 OF 2002 :
1. The petitioner was appointed as Senior Clerk on 5-10-.1990
in the office of the Divisional Joint Director (Agriculture), Nagpur
Division, Nagpur against a post reserved for Scheduled Tribe
candidate. The petitioner claimed that he belonged to ' Halba',
Scheduled Tribe, and his caste claim was forwarded to the Scrutiny
Committee for verification. By an order dated 29-10-2001, the claim is
invalidated and the certificate dated 28-7-1986 for securing
employment showing that he belongs to 'Halba', Scheduled Tribe, has
been cancelled and confiscated. The petitioner has challenged the said
order and, in the alternative, the protection in service is claimed on the
ground that on the date of filing of the petition i.e. in the year 2002,
the petitioner had completed almost 11 years of service as a confirmed
employee.
wp3373.02+.odt
2. None appears for the petitioner. The learned Assistant
Government Pleader Shri V.P. Maldhure appears for respondent Nos.1
to 3. We have gone through the order passed by the Scrutiny
Committee. There is not even a single document placed on record
pertaining to the period prior to 1950 in support of the claim for the
petitioner as belonging to 'Halba', Scheduled Tribe category. All the
documents produced on record pertain to the period post 1972
showing the caste as 'Halba', Scheduled Tribe. We have also gone
through the petition, which does not state that the petitioner filed any
document pertaining to the pre-constitutional period in support of his
claim as 'Halba', Scheduled Tribe. The Committee has applied the
affinity test and the combined effect of the documents placed on
record and the affinity test is to invalidate the caste claim of the
petitioner. It is a possible view of the matter. In the absence of any
perversity in the findings recorded by the Committee, we do not find
any reason to interfere in it.
3. The alternate claim of the petitioner is for protection in
service as he has completed about 27 years of service as on this date.
The protection claimed is on the basis of the Government Resolutions
wp3373.02+.odt
and the decision of the Apex court in Milind's case. We have already
taken a view that such a protection cannot be granted in exercise of
writ jurisdiction under Article 226 of the Constitution of India and we
also cannot prevent the consequences provided under Section 10 of
the Maharashtra Act No.XXIII of 2001.
4. The petition is, therefore, dismissed. Rule stands
discharged. No order as to costs.
(5) WRIT PETITION NO.665 OF 2002 :
1. The challenge in this petition is to the order
dated 21-5-2001 passed by the respondent No.2-Scrutiny Committee
invalidating the tribe claim of the petitioner for ' Halba', Scheduled
Tribe and cancelling and confiscating the caste certificate
dated 29-1-1996 issued by the Executive Magistrate at Chandrapur.
2. The petitioner got employment in the services of the
respondent Nos.3 and 4-Maharashtra State Electricity Board as a
candidate belonging to 'Halba', Scheduled Tribe category. He was
wp3373.02+.odt
appointed initially on 24-11-1998 as Junior Operator against the
vacancy reserved for Scheduled Tribe candidate.
3. None appears for the petitioner. We have gone through
the order passed by the Scrutiny Committee. Except one document,
which is a true copy of Primary School Leaving Certificate in the
name of the candidate's father mentioning the caste 'Halba' on
18-4-1984, all other documents are of the period subsequent to 1950.
The document at Sr. Nos.12 and 13 are dated 1-3-1915 and
6-4-1948 in the name of maternal grandfather and maternal uncle of
the petitioner and they are not the blood 'relatives' of the petitioner, as
defined under Rule 2(f) of the Maharashtra Scheduled Tribes
(Regulation of Issuance and Verification of) Certificate Rules, 2003,
framed under the Maharashtra Act No.XXIII of 2001. It is not the case
that the police vigilance cell report was not supplied to the petitioner
and that no hearing was given to the petitioner. The petitioner
alternately claims relief of protection in service.
4. The Committee has tested the claim of the petitioner on the
basis of the documents produced. It is the finding recorded by the
wp3373.02+.odt
Committee in respect of documents at Sr. No.10, which is a true copy
of the Primary School Leaving certificate in the name of the father of
the petitioner showing his caste as ' Halba', Scheduled Tribe. The
Committee, however, notices that in the extract of Primary School
admission register of the father of the petitioner, the entry is that of
'Koshti'. In the reply filed by the Scrutiny Committee, it is mentioned
that the caste of the petitioner's father and his brothers during the
years 1974 to 1961 is recorded as 'Koshti'. After taking into
consideration the documents on record and applying the affinity test,
the Committee holds that the claim has not been established and
hence the caste certificate dated 29-1-1996 has been cancelled and
confiscated.
5. The petitioner claims protection of 19 years' service on the
basis of the Government Resolution dated 15-6-1995 and similar other
Government Resolutions. However, we have already rejected the
claim for protection and we cannot prevent the consequences provided
under Section 10 of the Maharashtra Act No.XXIII of 2001.
wp3373.02+.odt
6. Hence, this petition is dismissed. Rule stands discharged.
No order a to costs.
(6) WRIT PETITION NO.666 OF 2002 :
1. The petitioner was appointed on the post of Junior
Operator on 24-11-1998 in the service of Maharashtra State Electricity
Board against the post reserved for Scheduled Tribe candidate. The
petitioner claimed that he belongs to 'Halba', Scheduled Tribe
category. The claim was referred to the Scrutiny Committee, which
invalidated it on 24-9-2001. The petitioner has challenged this order
of the Committee and also claimed protection in service as an
alternate relief.
2. We have gone through the order passed by the Scrutiny
Committee. We do not find even a single document produced on
record in support of the claim of the petitioner for ' Halba', Scheduled
Tribe category, pertaining to period prior to 1950 having probative
value. The Committee has considered all the documents produced,
and applying the affinity test, it is held that the petitioner has failed to
establish his caste claim for 'Halba', Scheduled Tribe category. Hence
wp3373.02+.odt
the caste certificate dated 19-11-1988 is cancelled and confiscated.
3. The Committee records a finding that the documents at
Sr.Nos.5, 6 and 7 are the copies of the Primary School admission
extract, middle school leaving certificate and first page of service book
extract of the candidate's father, in which the caste is clearly recorded
as 'Koshti'. It is not the challenge in the petition that the finding
recorded by the Scrutiny Committee in respect of the documents at
Sr.Nos.5, 6 and 7 is perverse or is not in conformity with the
documents placed on record. We do not find any reason to interfere
in the findings of fact recorded by the Scrutiny Committee.
4. The petitioner has claimed protection of 19 years' service
on the basis of the Government Resolutions and the decision in
Milind's case (cited supra). We have already rejected such claims for
protection and we cannot also prevent the consequences provided by
Section 10 of the Maharashtra Act No.XXIII of 2001.
5. In the result, the petition is dismissed. Rule stands
discharged. No order as to costs.
wp3373.02+.odt
(7) WRIT PETITION NO.667 OF 2002 :
1. The petitioner was appointed as Junior Operator
on 24-11-1998 in the services of the respondent-Maharashtra State
Electricity Board against a post reserved for Scheduled Tribe
candidate. The claim of the petitioner was for ' Halba', Scheduled
Tribe category. Upon reference, the Scrutiny Committee passed an
order dated 11-5-2001 invalidating the caste claim of the petitioner.
This is the subject-matter of challenge in this petition, and as an
alternate relief, the protection in service is claimed.
2. None appears for the petitioner. With the assistance of the
learned counsels appearing for the respondents, we have gone
through the order passed by the Scrutiny Committee. We do not find
even a single document produced on record pertaining to the period
prior to 1950 having probative value indicating the caste of the
petitioner as 'Halba', Scheduled Tribe. All the documents produced
are of the period subsequent to 1950 and the finding of the Scrutiny
wp3373.02+.odt
Committee is that the caste of the candidate's cousin paternal
grandfather, father and uncle Sudhakar is recorded as ' Koshti' on
11-11-1922, August, 1942 and 1-4-1949 respectively, i.e. prior to
issuance of the Constitution (Scheduled Tribe) Order, 1950 and as
such, rejected the claim of the petitioner for ' Halba'. There is no
challenge to the finding recorded by the Scrutiny Committee. There is
no perversity in recording the findings of fact brought to our notice.
The findings of fact do not call for any interference.
3. The petitioner has claimed protection of service on the
basis of the Government Resolution and the decision of the Apex
Court in Milind's case (cited supra). We have already rejected such a
claim by our reasoned order, as above. We also cannot prevent the
consequences provided by Section 10 of the Maharashtra Act No.XXIII
of 2001.
4. Hence, the petition is dismissed. Rule stands discharged.
No order as to costs.
wp3373.02+.odt
(8) WRIT PETITION NO.2024 OF 2002 :
1. The petitioner was appointed on the post of
Clerk-cum-Typist as per the order of appointment
dated 21-7-1993, upon the recommendations by Maharashtra Public
Service Commission in the services of the respondent No.4-General
Administration Department of the State Government, against a post
reserved for Scheduled Tribe category. The petitioner was thereafter
promoted to the post of Assistant with effect from 1-10-1996 against
a post reserved for Scheduled Tribe category. By an order
dated 7-5-2002, the petitioner was reverted to the post of
Clerk-cum-Typist as his caste claim for ' Halba', Scheduled Tribe
category, was invalidated by the Scrutiny Committee as per its order
dated 20-12-2001. The caste certificate issued in the name of the
petitioner on 19-8-1988 was cancelled and confiscated. The
petitioner has challenged the order passed by the Scrutiny Committee,
and in the alternative claims the relief of protection of service on the
basis of the Government Resolutions and the decision of the Apex
Court in Milind's case (supra), on the post of Assistant.
wp3373.02+.odt
2. The parties were directed to maintain status quo by an
order dated 28-6-2002. On 25-8-2003, the matter was admitted and
an interim order of status quo was continued.
3. None appears for the petitioner. Heard the learned
Assistant Government Pleader Shri V.P. Maldhure for the respondent
Nos.1, 2 and 4. We have gone through the order dated 20-12-2001
passed by the Scrutiny Committee. The order reproduced a list of
documents relied upon by the petitioner in support of his claim for
'Halba', Scheduled Tribe category. There is not even a single
document pertaining to the year prior to 1950 having probative
value indicating that the petitioner or his blood relatives belong to
'Halba', Scheduled Tribe category. All the documents are of the period
post-1972. The Committee records the finding that the caste in the
name of the candidate's father, real brother, paternal uncle, cousin
brother, cousin sister, is recorded as ' Koshti' in the school admission
register extract obtained by the Police vigilance Cell. Applying the
affinity test and considering the documents on record, the
Committee holds that the petitioner has failed to establish his claim
for 'Halba', Scheduled Tribe category. In the absence of any perversity
wp3373.02+.odt
in such findings, we do not find any reason to interfere in the said
order passed by the Scrutiny Committee.
4. The petitioner claimed protection of service on the basis of
the Government Resolutions and the decision of the Apex Court in
Milind's case (supra). We have already held that such a protection is
not available, and we cannot prevent the consequences under
Section 10 of the Maharashtra Act No.XXIII of 2001.
5. In view of the above, the petition is dismissed. Rule
stands discharged. No order as to costs.
(9) WRIT PETITION NO.4011 OF 2002 :
1. The petitioner was appointed as Sub-Engineer in the
service of the Maharashtra State Electricity Board in the month of
November, 1984 as a candidate belonging to ' Halba', Scheduled
Tribe category. He was thereafter promoted as Junior Engineer in the
month of August, 2000 from the said category. The caste claim of the
petitioner was forwarded to the Scrutiny Committee for verification
and it is found to be invalid by an order dated 5-8-2002 passed by
wp3373.02+.odt
the respondent No.2-Scrutiny Committee, Nagpur. The petitioner has
challenged the said order and also claims a declaration that he
belongs to 'Halba', Scheduled Tribe category.
2. With the assistance of the learned counsels appearing for
the parties, we have gone through the order dated 5-8-2002 passed by
the Scrutiny Committee. It records the findings that the police
vigilance cell has obtained School admission register extract from
Primary School Wakodi in which the caste of the candidate's real
elder brothers, namely Purushottam and Sudhakar, is clearly
recorded as 'Koshti' and occupation shown is of weaving. The report
of the police vigialnce cell was forwarded to the petitioner. The
Committee also records the finding that the police vigilance cell also
obtained a declaration made by the candidate's father at the time of
school admission of the candidate's real brother Shankar in which
initially the caste recorded as ' Koshti', which was subsequently
scored out and corrected in different ink and different handwriting as
'Halba', Scheduled Tribe.
wp3373.02+.odt
3. Applying the affinity test, the Committee has held that the
petitioner has failed to establish that he belongs to ' Halba',
Scheduled Tribe. The caste certificate dated 19-7-1979 produced for
entry in the service as a candidate belonging to ' Halba', Scheduled
Tribe, has been cancelled and confiscated. The production of
affidavit of one Tanaji Tulshi Ram Parate, the family chronicler,
would, at the most, establish the relationship of the petitioner as
'Koshti', and such evidence cannot establish that the petitioner belongs
to 'Halba', Scheduled Tribe category. It is not the challenge that the
copy of the police vigilance Cell was not supplied to the petitioner. In
the absence of any perversity in the finding s recorded after taking
into consideration the document son record and applying the affinity
test, we do not find any reason to interfere in the order impugned.
The relief of protection of service, which the petitioner has rendered
for 34 years till this date, cannot be granted in view of the aforesaid
decision of this Court. We are also unable to prevent the
consequences provided by Section 10 of the Maharashtra Act No.XXIII
of 2001.
wp3373.02+.odt
4. The petition is dismissed. Rule stands discharged. No
order as to costs.
(10) WRIT PETITION NO.4252 OF 2002 :
1. The petitioner was employed in the service of the
Maharashtra State Road Transport Corporation as Conductor by an
order dated 31-3-1994 as a candidate belonging to Scheduled Tribe
category. He was confirmed in service on 15-9-1994 and he is working
on this post till this date.
2. The caste claim of the petitioner was forwarded to the
Scrutiny Committee for verification, and, by an order
dated 18-9-2002, the claim is invalidated and the caste certificate
showing that the petitioner belongs to ' Dhangar', Scheduled Tribe
category, issued on 17-3-1989, has been cancelled and confiscated.
The petitioner apprehended the termination from service and
approached this Court challenging the order of the Scrutiny
Committee and claiming stay to it, so that his service is protected.
wp3373.02+.odt
3. This Court on 29.11.2002 passed an order of status quo,
which was continued on 16.07.2003, when Rule was granted in this
matter. The petitioner is thus in continuous service till this date.
4. We have gone through the order passed by the Scrutiny
Committee. There is not even a single document placed on record of
the period prior to 1950 having probative value indicating that the
petitioner belongs to 'Dhangar', Scheduled Tribe. The document
produced on record indicated that the petitioner belongs to 'Dhangar'
Nomadic Tribe category, which is an entry at Sr.No.29 in the said
order. It is not the challenge raised in the petition that there was any
breach of the principles of natural justice or absence of supply of copy
of the report of vigilance cell. The Committee has applied the affinity
test, and taking into consideration the documents on record, a
possible view is taken and we do not find any fault with it.
5. The petitioner claims protection of service on the basis of
the decision of the Apex Court in Milind's case (supra) and also the
Government Resolution dated 15-6-1995. The petitioner as on this
date completed 23 years of service. We have already rejected the
wp3373.02+.odt
claim for protection and hence for the said reasons, the petitioner is
also not entitled to claim protection of service, and the consequences
provided by Section 10 of the Maharashtra Act No.XXIII of 2001 also
cannot be prevented.
6. In the result, the petition is dismissed. Rule stands
discharged. No order as to costs.
(11) WRIT PETITION NO. 4754 OF 2002 :
1. The petitioner was appointed on the post of Talathi in
Akola District, against a post reserved for Scheduled Tribe category,
by an order dated 21-1-1991. Since the appointment of the petitioner
was against a post reserved for Scheduled Tribe category, the caste
certificate dated 2-5-1986 produced for getting employment was
referred to the Scrutiny Committee for verification, and by an order
dated 25-11-2002, the claim has been invalidated and the certificate
dated 2-5-1986 has been cancelled and confiscated.
2. We have gone through the order passed by the Scrutiny
Committee. We do not find even a single document placed on
wp3373.02+.odt
record pertaining to the period prior to 1950 having probative value
in support of the claim of the petitioner that the petitioner belongs to
'Halba', Scheduled Tribe category, against which he was appointed.
On the contrary, the Committee records the finding that the
documents obtained by the police vigilance cell in respect of the
relatives of the petitioner indicate their caste as 'Koshti'. The
Committee applied the affinity test and the finding is recorded that
the petitioner has failed to establish his claim for 'Halba', Scheduled
Tribe category.
3. We have gone through the copy of the petition and we do
not find that there is any challenge on the ground of non-supply of
the copy of police vigilance cell report to the petitioner. There is no
procedural defect in conducting an enquiry pointed out in the
petition. It is not the ground raised in the petition that the petitioner
was having any documents prior to 1950 showing the caste of his
blood relatives as 'Halba', Scheduled Tribe. In the absence of there
being any challenge to the order on the ground of perversity, we do
not find any reason to interfere in the findings of fact recorded by the
Committee holding that the petitioner has failed to establish his claim.
wp3373.02+.odt
4. The petitioner has relied upon the Government
Resolution dated 15.6.1995 and the decision of the Apex Court in the
Milind's case (supra), to claim protection of service on the post which
he occupied as Talathi/Patwari and to adjust him against the post
meant for Special Backward Class category to which he belongs. It is
by way of an interim order, this Court granted protection from
termination. Though as on this date, the petitioner has rendered
26 years of service, we are unable to grant protection in service for
the reasons which we have already recorded above. We also cannot
prevent the consequences provided by Section 10 of the Maharashtra
Act No.XXIII of 2001.
5. The petition is dismissed. Rule stands discharged. No
order as to costs.
(12) WRIT PETITION NO.5535 OF 2004 :
1. The petitioner was appointed as Lady Constable in the
post reserved for Scheduled Tribe candidate. The claim of the
petitioner was 'Mannewar', which is recognized as Scheduled Tribe.
wp3373.02+.odt
After appointment of the petitioner, her claim was referred to the
Scrutiny Committee for verification and the same has been
invalidated by the Committee on 16-10-2004. This order of the
Committee is under challenge in this petition.
2. With the assistance of the learned counsel for the
petitioner, we have gone through the order passed by the Scrutiny
Committee. There is not even a single document pertaining to the
period prior to 1950 having probative value indicating that the
petitioner or his blood relatives belong to ' Mannewar', Scheduled
Tribe category. The Committee conducted an enquiry through its
vigilance cell and obtained school admission register extract from the
Headmistress, Mohannagar Namdeo Vikramji Lade School, Nagpur,
in which the caste of the candidate's father and cousin sister is
recorded as 'Mudraj'. The entry pertains to period prior to 1950 and
has probative value. The caste 'Mudiraj' or 'Mudraj' is not recognized
as Scheduled Tribe in the Constitution (Scheduled Tribe) Order, 1950
in relation to the State of Maharashtra, though it may have been
recognized as Scheduled Tribe in the Constitution (Scheduled Tribe)
Order 1950 in relation to the State of Andhra Pradesh. The
wp3373.02+.odt
Committee applied the affinity test, and after taking into
consideration the documents available on record, the finding is
recorded that the petitioner has failed to establish the claim for
'Mannewar', Scheduled Tribe category. The findings of fact are
based upon the evidence available on record and we do not find any
reason to interfere in those findings, in the absence of any challenge
on the ground of perversity or ignorance of vital document placed
on record.
3. The petitioner was issued a show cause notice
dated 16-10-2004 for termination from service on the ground that
her caste claim has been invalidated by the Scrutiny Committee. This
Court has granted protection of service by way of an interim order
and as a result, the petitioner continues to be in service. In view of
the aforesaid decision which we have rendered, it is not possible for
us to protect the services of the petitioner upon invalidation of her
caste claim for 'Mannewar', Scheduled Tribe category. We also cannot
prevent the consequences provided under Section 10 of the
Maharashtra Act No.XXIII of 2001.
wp3373.02+.odt
4. The petition is dismissed. Rule stands discharged. No order
as to costs.
JUDGE. JUDGE.
Lanjewar/Sahare
