Bombay High Court
Hemant Balaji Dhakate Chandrapur vs The State Of Mah. Mumbai & 3 Others on 17 July, 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.
(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,
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:09 ::: 15 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:09 ::: 16 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:09 ::: 17 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.
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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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 19 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).
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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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 21 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 22 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 23 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 24 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 25 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 26 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 27 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.
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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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 29 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 30 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."
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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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 32 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 33 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 34 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, ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 35 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.
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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, ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 37 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 38 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 39 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 40 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 41 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.
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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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 43 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 44 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 45 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. ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 46
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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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 47 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.
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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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 49 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.
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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. ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 51
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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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 52 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 53 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.
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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.
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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. ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 56
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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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 57 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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 58 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. ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 59
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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. ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 60
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 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 21/07/2017 23:59:10 ::: 61 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.
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4. The petition is dismissed. Rule stands discharged. No order as to costs.
JUDGE. JUDGE.
Lanjewar/Sahare
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