Bombay High Court
Prakash Baburao Shahare vs State Of Mahrashtra And 4 Others on 1 August, 2017
Author: R.K.Deshpande
Bench: R.K. Deshpande, Swapna Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5410/2004
* Prakash Baburao Shahare
Aged 42 years, R/o Lala Rajpatrai Ward
Behind Shanti Niketan Convent
Bhandara, Tah. & Dist. Bhandara. ..PETITIONER.
VERSUS
1) State of Maharashtra
Through Secretary
Tribal Welfare Development Department
Mantralaya, Mumbai-400032
2) Scheduled Tribes Caste Certificate
Scrutiny Committee,
Through its Dy. Director (R)
and Member Secretary,
Adiwasi Vikas Bhavan
Giripeth, Nagpur.
3) Maharashtra State Road Transport Corporation
Through its Managing Director
Wahatuk Bhavan, Bombay Central, Mumbai.
4) Divisional Controller
Maharashtra State Road Transport Corporation
Bhandara.
5) Tribal Research and Training Institute
Through its Commissioner,
28, Queen's Garden, Pune. ..RESPONDENTS
.
...................................................................................................................
Mr.R.D.Karode, Advocate for the petitioner
Mrs. Geeta Tiwari, Assistant Government Pleader for
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respondent Nos.1 & 3
Mr. Saurabh Choudhari, Advocate for UOI
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CORAM : R.K. DESHPANDE &
MRS.SWAPNA JOSHI, JJ.
DATED : 1 st
August, 2017
ORAL JUDGMENT: (Per R.K.DESHPANDE, J.)
The claim of the petitioner for 'Binjhwar' which is a recognized Scheduled Tribe at Sr. No.10 in the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra, was invalidated by the Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur/respondent no.2, on 16.10.2004 and hence the same is the subject-matter of challenge in this petition.
2. The petitioner was employed as a Conductor in the service of Maharashtra State Road Transport Corporation with effect from 29.1.1992 against a post reserved for Scheduled Tribe category. Upon invalidation of his caste claim on 16.10.2004, he apprehended termination from service and, therefore, approached this Court by filing the instant petition. By an order dated 11th November 2004, the service of the petitioner was protected and the said protection was continued ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:24:14 ::: wp.5410.04 3 when the matter was admitted on 11.1.2005. The petitioner is, therefore, in service and has, as on this date, completed about 25-years of service as a Conductor. The petitioner, therefore, alternatively seeks protection in service on the basis of the Government Resolutions dated 15th June 1995 and 30th June, 2004.
3. With the assistance of the learned counsels appearing for the petitioner, we have gone through the order impugned, passed by respondent no.2-Committee. The petitioner placed on record nine documents indicating his caste as well as the caste of his relatives as 'Binjhwar'. The oldest document in which the entry 'Binjhwar' was made is of 1.9.1950 which is the Primary School leaving certificate in the name of Ratiram Sakharam. However, the Committee has held that he is not in blood relation with the petitioner from the paternal side. All other documents are of the period subsequent to 1950.
4. The police vigilance cell report dated 17.12.2003 produced on record indicate the documents of the blood relative of the petitioner pertaining to the year 1935, 1939, 1967, 1956 and 1971 showing their caste as 'Injhwar'. The Committee relied upon these documents and a ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:24:14 ::: wp.5410.04 4 finding is recorded that 'Injhwar' is a separate caste and it is not included in the list of Scheduled Tribes. The socio-cultural traits, characteristics, customs of 'Injhwar' community do not match with those of 'Binjhwar'.
5. The learned counsel for the petitioner invited our attention to the averments made in paragraph 6 of the petition on page 5 which are reproduced below:
"6. That, the Binjhwar caste is mainly found in the State of Madhya Pradesh and there is a heavy migration of such persons from Binjhwar community to erstwhile Bhandara District and now in Bhandara and Gondia Districts. As the districts are dominated by Hindi coupled with Marathi, the word "Bin" (fca) is pronounced as "In" (bZa) and, therefore caste is recorded as Injhwar and not Binjhwar. The State of Maharashtra in order to ascertain the correctness of this thing appointed last respondent to make an inquiry and submit its report. In the submission of the petitioner the said respondent has conducted a survey and also prepared a report which was submitted to the Government vide letter No.vklizl@1084@izds 399 dated 11th Nov. 2002, in which the said authority has come to the conclusion that it is a truth that original ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:24:14 ::: wp.5410.04 5 Binjhwars who are migrated from Madhya Pradesh to these two districts have Injhwar and, therefore, they are entitled for the concession as a Scheduled Tribe. This is because of pronunciation and dialect which exists in these two districts. If that is so, then caste scrutiny committee cannot take a contrary view to the research work done by its superior authority, namely the Commissioner. The order impugned, therefore, is liable to be quashed and set aside."
The learned counsel has also invited our attention to the order dated 1st February, 2017 passed by the Division Bench of this Court in Writ Petition No.4625/2016 and Writ Petition No. 180/2016 noting therein that a Bill was tabled in both the Houses in the year 2011.
6. Shri Saurabh Choudhari, the learned counsel appearing for Union of India, has placed before us the Constitution (Scheduled Tribes) Order (Second Amendment ) Bill, 2011 wherein it was proposed that 'Injhwar' to be treated as synonym of 'Binjhwar' and the matter was referred to the State Government for furnishing clear recommendation. It is informed to us that the State Government by its communication dated 23rd February 2012 informed the Government of India, Ministry of ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:24:14 ::: wp.5410.04 6 Tribal Affairs that inclusion of 'Injhwar' is synonym of 'Binjhwar' is not acceptable. We are also informed that the said Bill has lapsed.
7. The finding of the Committee that 'Injhwar' is a separate caste which is not included in the list of recognized Scheduled Tribes is not challenged. It is not permissible to hold an enquiry or to let in evidence to hold that 'Injhwar' is the synonym of 'Binjhwar'. Accordingly, the State Government has also taken a decision that inclusion of 'Injhwar' as synonym of 'Binjhwar' is not acceptable. We, therefore, hold that 'Injhwar' is not entitled to the benefit available to 'Binjhwar', a recognized Scheduled Tribe at Sr. No.10 in the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra.
8. In view of the fact that the documents obtained by the police vigilance cell indicating the caste of the petitioner or his paternal relatives is shown as 'Injhwar' prior to 1950 having probative value are taken into consideration and by applying the affinity test it is held that the petitioner has failed to establish the claim for 'Binjhwar' Scheduled Tribe category, we do not find any reason to interfere with the findings of fact recorded, which at any rate, takes a possible view of the matter. ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:24:14 :::
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9. In the latest decision of the Apex Court rendered on 6.7.2017 in Civil Appeal No.8928/2015 (Chairman and Managing Director, FCI and others vs. Jagdish Bahira and another), which we have followed in Writ Petition No.3373/2002 with bunch of petitions rendered on 17th July, 2017, the petitioner is neither entitled to protection in service in terms of the Government Resolution dated 15th June, 1995 and 30th June, 2004 and we are unable to prevent the consequences provided by section 10 of the Maharashtra Act No. XXIII of 2001 of withdrawal of concessions and benefits availed as a candidate belonging to Scheduled Tribe category. For the reasons recorded by us in the decision in Writ Petition No.3373/2002 which shall form part and parcel of this decision, we reject such claim. The Writ Petition is dismissed.
10. At this stage, the learned counsel for the petitioner submits that the interim protection granted by this Court should be continued for a further period of eight weeks from today. We have already rejected similar requests made by the other counsels in other matters. Hence we do not find any reason to give such a protection. The prayer is rejected.
JUDGE JUDGE ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:24:14 ::: wp.5410.04 8 ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:24:14 :::