Purushottam S/O Marotrao Kalbhut vs The Scheduled Tribe Certificate ...
2017 Latest Caselaw 5108 Bom

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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR


                   Writ Petition No.3489 of 2008


  Purushottam s/o Marotrao Kalbhut,
  Aged about 47 years,
  Occupation - Service,
  Resident of Vaishnav-13, 
  Dwarka Nagari, Anandwan Square,
  Warora, Distt. Chandrapur.                       ... Petitioner


       Versus


  1. The Scheduled Tribe Certificate
     Scrutiny Committee, Nagpur Division,
     Nagpur.

  2. Maharogi Sewa Samiti, Warora,
     At and Post Anandwan-442 914,
     Via Warora, Distt. Chandrapur.

  3. Dr. Ambedkar Teachers' Welfare
     Association, Siddharth Nagar,
     Nagpur, Branch Warora,
     through its authorized signatory/President,
     Sudhakar s/o Domaji Pethkar,
     Aged about 43 years,
     Occupation - Service,
     Office at 71, NIT Layout,
     Tilak Ward, Warora, Tahsil Warora,
     District Chandrapur.                    ... Respondents




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  Shri   M.G.   Bhangde,   Senior   Advocate,   assisted   by   Shri   S.N. 
  Tapadia, Advocate for Petitioner.
  Ms Geeta Tiwari, Assistant Government Pleader for Respondent 
  No.1.
  Shri P.S. Wathore, Advocate for Respondent No.3.


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

th Dated : 27 July, 2017

Oral Judgment (Per R.K. Deshpande, J.) :

1. The petitioner was appointed on the post of Lecturer in

the College run by the respondent No.2-Society on 31-8-1988

against a post reserved for Scheduled Tribe category. At the time

of his appointment, the petitioner produced the caste certificate

dated 26-6-1981 issued by the Executive Magistrate, Wardha,

certifying that he belongs to 'Pawara', which is a tribe included in

the Constitution (Scheduled Tribes) Order, 1950 at serial No.8.

The petitioner worked on the said post till 10-4-2004, on which

date he was appointed as Principal in the same College upon his

selection pursuant to the advertisement dated 4-3-2004 inviting

applications from the Open Category. The petitioner worked as

Principal till 5-8-2013, when he resigned from the said post.

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2. The respondent No.3-Dr. Ambedkar Teachers' Welfare

Association, Siddharth Nagar, Nagpur, filed a complaint before

the Scheduled Tribe Certificate Scrutiny Committee, Nagpur, on

30-1-2008 alleging that the petitioner belongs to 'Pawar', which

is Other Backward Class. The Committee, therefore, took the

matter for scrutiny and verification of the caste certificate of the

petitioner for 'Pawara', Scheduled Tribe. The claim of the

petitioner was invalidated by an order dated 12-5-2008. This

petition challenges the said order of the Committee only to the

extent it directs cancellation of the promotion of the petitioner

to the post of Principal of the College and institution of the

prosecution against him under Section 11(2) of 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).

3. We have heard Shri M.G. Bhangde, the learned Senior

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Advocate, assisted by Shri S.N. Tapadia, Advocate, for the

petitioner; Ms Geeta Tiwari, the learned Assistant Government

Pleader for the respondent No.1; and Shri P.S. Wathore, the

learned counsel for the respondent No.3.

4. We have gone through the order passed by the Scrutiny

Committee. The order records in para 4 the stand taken by the

petitioner before the said Committee that he belongs to 'Pawar

(Bhoyar)' caste, which is recognized as Other Backward Class,

but due to his or his parents' mistake, the caste 'Pawara' (instead

of 'Pawar') was recorded in the School record and, therefore, he

obtained the caste certificate as belonging to 'Pawara', Scheduled

Tribe. The Committee also records that the petitioner belongs to

'Pawar (Bhoyar)' caste and he has withdrawn his claim for

'Pawara', Scheduled Tribe, and requested the Committee to

cancel his caste certificate showing that he belongs to 'Pawara',

Scheduled Tribe. The Committee accordingly invalidates the

caste certificate dated 26-6-1981 produced by the petitioner and

cancels and confiscates it. These findings are not under challenge

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in this petition and we have, therefore, to proceed on the footing

that the petitioner did not belong to 'Pawara', which is

recognized as Scheduled Tribe in entry No.8 of the Constitution

(Scheduled Tribes) Order, 1950.

5. The contention of Shri Bhangde, the learned Senior

Advocate, is that the Committee has no jurisdiction to direct

cancellation of the appointment of the petitioner on the post of

Principal and such jurisdiction vests in the employer in terms of

Section 10 of the Maharashtra Act No.XXIII of 2001. He submits

that even otherwise the appointment of the petitioner on the post

of Principal was from the Open Category in response to the

advertisement dated 4-3-2004, which clearly specifies that the

post was open for all the candidates. He, therefore, submits that

the order directing removal of the petitioner from service is

without jurisdiction.

6. We have gone through the provision of Section 10 of the

Maharashtra Act No.XXIII of 2001, which provides the

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consequences of discharge from employment upon invalidation

of the caste claim by the Scrutiny Committee, if a person is

appointed against a post reserved for any such category.

Obviously, it is a power of discharge from employment conferred

upon the employer and the observation made by the Scrutiny

Committee in para 15 of its impugned order that the petitioner

will have to be removed from the post of Principal, can at the

most be considered as a recommendation and not as a direction

for removal of the petitioner from the post of Principal. It is open

for the employer to take a decision on this question taking into

consideration the facts and circumstances of the case, including

the question as to whether the appointment of the petitioner to

the post of Principal was a direct appointment or an appointment

by way of promotion. We are, therefore, unable to construe the

observation of the Scrutiny Committee in para 15 of its impugned

order as a direction to the respondent No.2 to remove the

petitioner from the post of Principal.

7. Inviting our attention to paras 51 and 52 of the decision

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of the Apex Court in the case of Chairman and Managing Director

FCI and Ors. v. Jagdish Balaram Bahira and Ors., reported in

2017(7) SCALE 395, Shri Bhangde, the learned Senior Advocate,

has urged that the finding of the Scrutiny Committee in para 16

of its impugned order is with reference to the offence under

Section 11 of the Maharashtra Act No.XXIII of 2001, and the

Apex Court has held that the provision of Section 11(1) of the

said Act must be read and construed in a prospective sense

having regard to the guarantee contained in Article 20(1) of the

Constitution. The Apex Court also holds that the offence having

been created by the Maharashtra Act No.XXIII of 2001, the Act

which constitutes the offence must relate to a period after the

date of the enforcement of the Act and it must be construed

prospectively.

8. In para 17 of the impugned order, the Scrutiny

Committee records the findings as under :

"17. The caste certificate of the non-applicant in

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question reveals that before the Executive Magistrate, Wardha, he suppressed the documentary evidence in respect of his real elder brother showing his caste as Pawar and obtained the caste certificate as belonging to Pawara, Scheduled Tribe from the Executive Magistrate, Wardha. Therefore, the Scrutiny Committee vide the powers vested in it under section 11(2) of 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), hereby authorises Shri B.R. Patil, I/C Deputy Superintendent of Police, Police Vigilance Cell, Scheduled Tribe Certificate Scrutiny Committee, Nagpur to lodge a complaint in the form of F.I.R. with the concerned Police Station against Shri Purushottam Marotrao Kalbhoot."

The Committee has authorized B.R. Patil, Incharge Deputy

Superintendent of Police, Police Vigilance Cell, Scheduled Tribe

Certificate Scrutiny Committee, Nagpur, to lodge a complaint in

the form of F.I.R. with the concerned Police Station against the

petitioner for the act of suppression of the documentary evidence

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in respect of his real elder brother showing his caste as 'Pawar'

and obtained the caste certificate as belonging to 'Pawara',

Scheduled Tribe, from the Executive Magistrate, Wardha.

9. We are confronted with the question - whether in the

absence of the provisions of the Maharashtra Act No.XXIII of

2001, the prosecution of the petitioner as contemplated in the

judicial legislation contained in the decision of the Apex Court in

the case of Kumari Madhuri Patil and another v. Addl.

Commissioner, Tribal Development and others, reported in

AIR 1995 SC 94, is tenable or not. This decision was delivered by

the Apex Court on 2-9-1994. The prosecution of the petitioner

may be possible in other law for the time being in force, and we

do not propose to examine this aspect at this stage. The order of

the Scrutiny Committee merely authorizes institution of

prosecution against the petitioner and if such prosecution is not

tenable, it shall be open for the petitioner to challenge institution

of such proceedings by approaching the appropriate forum in

accordance with law. Merely because authorization is granted to

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institute prosecution, does not mean that any of the provisions

creating offences would apply and the case will have to be

independently examined by the appropriate Court.

10. With the aforesaid observations, we dismiss this petition.

However, in the circumstances, there shall be no order as to

costs.

                             JUDGE.                                   JUDGE.

   Lanjewar