Bombay High Court
Jagdish Yadaorao Yele,Nagpur vs The Comm.For Scru.& Veri.Of ... on 19 July, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.3625 of 2000
Jagdish Yadaorao Yele,
Aged 39 years, Occ.-Service,
Resident of C-1/5, Radio Colony,
Seminary Hills, Nagpur-6. .... Petitioner.
-Versus-
1] The Committee for Scrutiny and Verification of Tribal
Claims, through its Member Secretary and
Deputy Director (R), Adiwasi Bhavan,
2nd Floor, Giripeth, Nagpur.
2] All India Radio, Nagpur
through Superintending Engineer,
Civil Lines, Nagpur.
3] The Union of India,
though Ministry of Information and Broadcasting,
New Delhi.
4] Prasar Bharti Broadcasting Corporation,
through Chief Executive Officer, New Delhi. .... Respondents.
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Shri A.S. Mardikar, Senior Counsel assisted by
Shri S.G. Joshi, Counsel for petitioner.
Mrs. Mugdha R. Chandurkar, Counsel for respondent nos. 2, 3 and 4.
Shri N.S. Rao, Assistant Government Pleader for respondent no.1.
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Coram : R. K. Deshpande &
Mrs. Swapna Joshi, JJ.
Dated : 19 July, 2017
th
ORAL JUDGMENT (Per R. K. Deshpande, J.)
The challenge in this petition is to the order dated 07-02-2003
passed by the Scheduled Tribe Caste Certificate Scrutiny Committee,
Nagpur, pursuant to the interim directions issued by this Court on
23-09-2002. The claim of the petitioner "Pawara" (Scheduled Tribe)
which is an entry at Serial No.8 of the Constitution (Scheduled
Tribes) Order, 1950. Prior to this, the Committee had passed an
order on 12-09-2000 invalidating the caste claim of the petitioner for
"Pawara" (Scheduled Tribe). Hence, both these orders are the
subject matter of challenge in this petition.
2] The petitioner was initially appointed in the service of
respondent no.2-All India Radio and he joined the posting as
'Engineer Assistant' at Bhusawal under Doordarshan Maintenance
Centre, Nasik on 19-06-1986. The petitioner was thereafter
promoted to the post of 'Senior Assistant Engineer' in the month of
April, 1991 and was confirmed in the said post on 28-07-1993. Since
then he is working as such till today.
3] The case of the respondent no.2-All India Radio, Nagpur and
3 Judg. wp 3625.2000.odt
respondent no.3-Ministry of Information and Broadcasting is that the
petitioner was appointed against the post reserved for the Scheduled
Tribe candidate. According to them, the petitioner produced caste
certificate dated 18-08-1981 issued by the Executive Magistrate,
Gondia certifying that the petitioner belongs to "Pawara" (Scheduled
Tribe). The claim of the petitioner was forwarded to the Scrutiny
Committee for scrutiny and verification and by an order dated
12-09-2000 passed by the Scrutiny Committee it was held that the
petitioner has failed to establish his claim as belonging to
"Pawara" (Scheduled Tribe).
4] To prevent any adverse action being taken by the respondents
on the basis of invalidation of caste claim, the petitioner approached
this Court by filing this writ petition and on 19-10-2000, this Court
protected the service of the petitioner. On 16-06-2003, the matter
was admitted and an interim relief was granted in terms of prayer
clause (ii) restraining the respondent nos. 2 to 4 from taking any
action against the petitioner on the basis of invalidation of his caste
claim by the said Committee.
5] Shri Anil Mardikar, the learned Senior Counsel assisted by
Shri Sumit Joshi, the learned Counsel for the petitioner has urged
that the Scrutiny Committee had no jurisdiction to scrutinize and
4 Judg. wp 3625.2000.odt
verify the caste claim of the persons employed under the
establishment of the Union of India. According to him, the claim of
the petitioner was for the first time referred to the said Committee on
01-07-1994 and the decision of the Hon'ble apex Court in Kumari
Madhuri Patil and another v. Addl. Commissioner, Tribal
Development and others, reported in AIR 1995 SC 94 was delivered
on 02-09-1994. According to him, the reference itself prior to the
decision of the Madhuri Patil's case was incompetent. According to
him, it is for the first time as per the Office Memorandum dated
28-03-2007 issued by the Government of India, the jurisdiction was
conferred upon the District Magistrate/ District Collector/District
Commissioner to decide the veracity of the caste/community
certificate of the employees working under the establishments of
the Government of India. He further submits that in spite of the
orders passed by this Court, the Scrutiny Committee on every
occasion failed to decide the question of its own jurisdiction in
respect of the employees under the establishment of Union of India.
6] It is also urged that, in fact, the appointment of the petitioner
was as a candidate belonging to the Other Backward Class Category
and not against the vacancy reserved for the Scheduled Tribe
candidate. Shri Mardikar, the learned Senior Counsel appearing for
the petitioner has also taken us through the reply filed by the
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petitioner in response to the Police Vigilance Cell Report and the
explanation furnished in respect of certain entries found to be
adverse against the petitioner by the Police Vigilance Cell.
7] We are unable to accept the argument that the Scrutiny
Committee which has decided the caste claim of the petitioner had
no jurisdiction to entertain and decide the validity of the claim of the
petitioner for "Pawara" (Scheduled Tribe). In the absence of there
being any proper machinery and procedure for scrutiny and
verification of the caste claim of the persons appointed against the
post reserved for various Backward Class Categories, the Apex Court
has in the case of Kumari Madhuri Patil (supra) laid down the
procedure for the said purpose. The said procedure, according to us,
is required to be followed in respect of every person appointed to
occupy any post reserved for a candidate belonging to any of the
Backward Class Category, whether in the service under the
Government of India or under the State Government or any aided or
non-aided institutions and public employments, where the posts are
reserved for the candidates belonging to such Backward Class
Community. It is in the form of judicial legislation conferring the
authority upon the Scrutiny Committee to verify such claims by
following the procedure prescribed therein.
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8] The Committee has decided in the present case the caste
claim of the petitioner on two occasions i.e on 12-09-2000 and
07-02-2003. The order of 07-02-2003 was passed after bringing
into force 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 (for short, "Mah. Act
XXIII of 2001"). Perusal of Section 4 therein shows that the caste
certificates are required to be issued by the Competent Authority
prescribed under the Act and any certificates issued prior to bringing
into force of this Act, were made subject to verification and grant of
validity certificate by the Scrutiny Committee. Section 6(3) of the
Mah. Act XXIII of 2001 clearly empowers the appointing Authority
of the Central or State Government, Local Authority and Public
Sector Undertakings, to refer the caste claim to the Scrutiny
Committee for verification. In view of this, even assuming that on
12-09-2000 the Committee had no jurisdiction in the absence of
Mah. Act XXIII of 2001, the Committee certainly got the jurisdiction
to pass the order on 07-02-2003. We, therefore, reject the said
contention.
9] We have gone through the reply filed by the respondent
employer. The entire service record referred to in the reply clearly
7 Judg. wp 3625.2000.odt
reflects that the petitioner was appointed as a candidate belonging to
the Scheduled Tribe category and not as a candidate belonging to the
Other Backward Class Category. The petitioner has not produced
any certificate indicating that he belongs to the Other Backward
Class Category. The certificate dated 18-08-1981 issued by the
Competent Authority produced for getting employment shows that
the petitioner belongs to "Pawara" (Scheduled Tribe) category. The
reply filed by the respondent nos. 2, 3 and 4 leaves no reason of
doubt in our mind that the petitioner was appointed on the post
reserved for Scheduled Tribe Category.
10] On merits of the matter, the petitioner has produced six
documents. The document no.1 is the caste certificate showing his
caste as "Pawara" (Scheduled Tribe). In the Primary School Leaving
Certificate in the name of the petitioner the caste is mentioned as
"Powar" on 06-06-1967. In the original Secondary School Leaving
Certificate also the caste mentioned as "Powar" which was issued on
01-07-1975 and the documents of real sister and brother produced
indicate the caste as "Powar". The Vigilance Cell obtained School
Admission Register extract from the primary school in which the
caste of the petitioner's real brother and sister recorded as "Powar".
Even in respect of other blood relatives, the Vigilance Cell found the
record indicating their caste as "Powar". The statement of paternal
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uncle and maternal uncle recorded by the Police Vigilance Cell also
clearly indicate that their caste is "Powar". The petitioner has filed
several documents showing that he belongs to "Pawara" (Scheduled
Tribe). However, those are issued by Sarpanch of the village and
Police Patil which do not have any evidentiary value. There is
voluminous evidence considered by the Committee to record the
finding that the petitioner has failed to establish his claim for
"Pawara" (Scheduled Tribe) category. We do not find any perversity
in recording such finding and there is no reason to interfere in it.
11] It is urged that the service rendered by the petitioner of 31
years as on this date from the year 1986 be protected and the
respondents be restrained from withdrawing the benefits which are
received by the petitioner while in service. We have already held in
the judgment in the case of Dattakishor Jagannath Kumbhare v.
State of Maharashtra through Secretary to Tribal Welfare
Department, Mantralaya, Mumbai-32 and others delivered on
17th July, 2017 in Writ Petition No.3373 of 2002 and other connected
matters, that in view of the recent decision of the Larger Bench of
the Apex Court delivered on 6-7-2017 in case of Chairman and
Managing Director FCI and others v. Jagdish Balaram Bahira and
others that the High Court cannot either protect the service or
prevent the consequences of withdrawal of benefits as per Section
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10 of Mah. Act XXIII of 2001. For the reasons stated in the said
decision, we reject the claim for protection in service and we also
cannot prevent the action of withdrawal of benefits and concessions
received by the petitioner.
12] In the result, the Writ Petition is dismissed. Rule stands
discharged. No order as to costs.
13] At this stage, Shri Mardikar, the learned Senior Counsel
appearing for the petitioner prays that the decision of this Court be
suspended for a period of eight weeks from today so as to enable
the petitioner to adopt the further appropriate remedy available in
law. He submits that if the order is not suspended the respondents
are likely to take any adverse action against the petitioner.
14] In view of the recent decision of the Hon'ble apex Court in
Civil Appeal No.8928 of 2015 [Chairman and Managing Director
FCI and others v. Jagdish Balaram Bahira and others] and the
view which we have taken 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 continue the protection even for a minute which
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results in either violating the order passed by the Hon'ble apex
Court or the provisions of Section 10 of the Mah. Act XXIII of
2001, the prayer is, therefore, rejected.
JUDGE JUDGE
Deshmukh
