Bombay High Court
Pramod Manoharrao Sonkusare vs Castes Scrutiny Committee, Nagpur And ... on 2 December, 2019
Equivalent citations: AIRONLINE 2019 BOM 2428
Author: R.K. Deshpande
Bench: R.K. Deshpande, Milind N. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6034 OF 2017
Pramod Manoharrao Sonkusare
Aged about 43 years, Occ.: Service,
R/o. House No. 927-A, Goltarkar Niwas,
Bramhandeo Wadi, Deogad,
Tq. Deogad, District: Sindhudurg - 416613 .... PETITIONER
// VERSUS //
1. Castes Scrutiny Committee,
Nagpur.
2. Working President, Deogad
Education Board, C/o. G.D. Tawade,
1, Udhyan Vikas Co-operative Housing
Society Limited, Tejpalsingh Road No.2,
Ville Parle (East), Mumbai - 400057
3. Headmaster, Anant Krushna
Kelkar High School, Wada,
Tq. Deogad, District : Sindhudurg.
4. Education Officer (Secondary),
Zilla Parishad, Sindhudurg. .... RESPONDENTS
Mr. S.R. Narnaware, counsel for petitioner.
Mr. Amit Madiwale, AGP for respondent Nos. 1 & 4.
Mr. P.J. Mehta, counsel for respondent Nos. 2 & 3.
________________________________________________________________
CORAM : R.K. DESHPANDE &
MILIND N. JADHAV, JJ.
DATE : 02.12.2019.
ORAL JUDGMENT: [PER : R.K. DESHPANDE, J.]
1] Rule, returnable forthwith. Heard finally by consent of learned counsel appearing for the parties.
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3.wp6034.17judge.odt 2/10 2] The petitioner was appointed as 'Clerk' by an order dated 27.06.1994 in the service of the private school of the respondent Nos.2 and 3. The appointment was against the post reserved for 'Scheduled Tribe' Candidate. The claim of the petitioner was forwarded to the Scrutiny Committee for verification. By an order dated 19.07.2017, the Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur invalidated the claim of the petitioner for 'Halba Scheduled Tribe'. The petitioner was, therefore, issued a show cause notice for termination from service, on 14.08.2017, on the ground that his caste claim has been invalidated by the Scrutiny Committee. The same is, therefore, subject matter of challenge alongwith the order passed by the Scrutiny Committee, in this writ petition. 3] Initially, on 15.09.2017, this Court passed an order of status-quo and the same is continued. We are informed that by an order dated 05.09.2017 the petitioner is terminated from service, however, the said order is not challenged in this petition. 4] The undisputed factual position is that the petitioner was appointed and occupied the post reserved for Scheduled Tribe Candidate. Though, there is a prayer for declaration that the ::: Uploaded on - 06/12/2019 ::: Downloaded on - 25/04/2020 08:09:55 :::
3.wp6034.17judge.odt 3/10 petitioner was not appointed on the reserved post, it is conceded before us by the learned counsel for the petitioner that the appointment was against the post reserved for 'Scheduled Tribe'. The Scrutiny Committee has invalidated the caste claim after recording the findings that (i) all the documents produced by the petitioner from 1953 onwards indicate the caste 'Koshti' and the occupation is shown as 'Vinkar' by occupation, (ii) the petitioner has failed to satisfy the affinity test, and (iii) there is not even a single document showing that either the petitioner or any of his blood relatives belong to 'Halba or Halbi' Scheduled Tribe, which is an entry in the Constitution (Scheduled Tribes) Order, 1950.
The findings of fact recorded by the Scrutiny Committee are not challenged.
5] Inviting our attention to the decision of the Division of this Court, in the case of Priya S/o. Pravin Parate .v/s. Scheduled Tribes Caste Certificates Scrutiny Committee, Nagpur & Others, reported in 2013 (1) Mh.L.J.180, it is urged that 'Koshti' is an occupation and not the Caste. Paragraph 10 of the said decision is reproduced below:
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3.wp6034.17judge.odt 4/10 "10. Insofar as the reliance on some of the entries pertaining to petitioners relatives from paternal side showing caste to be 'Koshti' on which Mr. Deshpande, learned Counsel relies, are concerned, perusal of the said document would reveal that though the caste of the said person is written as Koshti, the profession is also shown as weaving. As can be seen from the Gazetteer of Amravati District, that Halbi's in erstwhile Ellichpur and Anjangaon Surji in Daryapur Taluq in Amravati District were also engaged in the profession of weaving. It is common knowledge that persons engaged in the profession of weaving were called as "Koshti". A possibility cannot be ruled out that due to this, said entries might have recorded. It is also relevant to refer to some portion from the authority of R.V. Russell on Tribes and Casts of the Central Provinces of India, published in 1916, wherein while dealing with the Halba Tribe, it has been stated that "Some of these soldiers may have migrated west and taken service under the Gond Kings of Chanda, and their descendants may now be represented by the Bhandara Zamindars, who, however, if this theory be correct, have entirely forgotten their origin. Others took up weaving ::: Uploaded on - 06/12/2019 ::: Downloaded on - 25/04/2020 08:09:55 :::
3.wp6034.17judge.odt 5/10 and have become amalgamated with the Koshti caste in Bhandara and Berar."
From the aforesaid authority, it would reveal that persons belonging to Halba Tribe had migrated to west and taken service under the Gond Kings of Chanda. It can also be seen that some of them had taken to weaving and had amalgamated with the Koshti caste in Bhandara and Berar. Merely because some stray entries as "Koshti" are recorded in respect of caste of some of the relative of petitioners from their paternal side; the voluminous documentary evidence of pre-Constitution era which clearly certify the petitioners great-grand father and his brothers to be Halbi, could not have been lightly brushed aside by the Scrutiny Committee. As discussed herein above, the Hon'ble Apex Court in case of Anand (supra), found that the pre-Independence documents have a greater probative value and they should be given due consideration while considering the claim of a tribal."
It is further urged that merely because there are entries of 'Koshti', it does not follow that the petitioner's caste is 'Koshti' and 'Koshti' is the occupation and not the caste.
6] Reliance is also placed upon the Division Bench decision ::: Uploaded on - 06/12/2019 ::: Downloaded on - 25/04/2020 08:09:55 :::
3.wp6034.17judge.odt 6/10 of this Court in the case of Vijay Kishanrao Kurundkar and Another .v/s. State of Maharashtra & Others reported in 2018 (5) Mh.L.J.66. Paragraph 9 of the said decision relied upon by the Division Bench reproduced below:
"9. In the case of Punjab National Bank (cited supra) also submission was made that after the Act of 2001, the Government Resolution of 1995 could not have been used. This submission was not accepted by the Apex Court and the Apex Court has laid down that there was no possibility of interference in the policy of the Government to give protection to the candidates appointed prior to Government Resolution dated 15-6-1995 and who were belonging to Special Backward Category though they had secured appointment by claiming that they were from Scheduled Tribes category. In the present matter also, there was the claim that respondent Nos.5 and 6 were of Halba, Scheduled Tribe and on that basis they had secured the appointment. However, till today they could not get validity certificates in respect of that claim but in the year 2003 they obtained validity certificates in respect of other claim like Koshti community which is the Special Backward Category. In view of these circumstances the Government Resolution dated 15-6-1995 is ::: Uploaded on - 06/12/2019 ::: Downloaded on - 25/04/2020 08:09:55 :::
3.wp6034.17judge.odt 7/10 applicable and protection could have been given by the Government to respondent Nos.5 and 6. Accordingly, protection is given. This case is not directly or indirectly overruled by the Apex Court in the case of Chairman and MD, FCI (cited supra). Further, treating a particular class as Special Backward Category, giving them reservation in Government job is a policy of the Government and if reservation is not declared as invalid, it was possible for the Government to give protection to the employees like respondent Nos.5 and 6. Respondent Nos.5 and 6 were already in service prior to the entry of the petitioners in the service though from other category. As the Government has the authority, power to give such protection, this Court holds that it is not possible to interfere in the matter on the basis of the grounds raised above. For the same reasons no further orders can be made in the contempt petition. In the result, the writ petition stands dismissed. Rule stands discharged. Contempt Petition and the civil application stand disposed of."
It is urged that the Division Bench of this Court, after taking into consideration the decision of the Apex Court in the case of Chairman and Managing Director, Food Corporation of India & ::: Uploaded on - 06/12/2019 ::: Downloaded on - 25/04/2020 08:09:55 :::
3.wp6034.17judge.odt 8/10 others .v/s. Jagdish Balaram Bahira & Others reported in 2017 (8) SCC 670, has granted protection relying upon the earlier decision of the Apex Court in the case of Punjab National Bank .v/s. Vilas Govindrao Bokade reported in (2008) 14 SCC 545. It is, therefore, urged that the petitioner is entitled to protection in service even if his claim is invalidated for 'Halba Scheduled Tribe'. 7] Further inviting our attention to the Government Resolution dated 05.06.2018 alongwith the order dated 28.09.2018 passed in Writ Petition No. 3140 of 2018 (Organization for the Rights of Tribal, Nagpur .v/s. State of Maharashtra, through the Chief Secretary & others), it is urged that the stay granted by this Court to the Government Resolution dated 05.06.2018 was vacated. Our attention is also invited to the interim order passed by this Court on 08.02.2019 in Writ Petition No. 1089 of 2019 (Jeevan S/o. Madhukar Chandekar & Another. .v/s. Joint Commissioner & Vice- Chairman, Scheduled Tribe Certificate Scrutiny Committee, Nagpur & others.) to urge that even after the decision of the Apex Court, this Court has granted protection in several cases. 8] We have gone through all the decisions and circulars as well as the interim orders passed by this Court in several matters. ::: Uploaded on - 06/12/2019 ::: Downloaded on - 25/04/2020 08:09:55 :::
3.wp6034.17judge.odt 9/10 The distinction lies in respect of the fact that the petitioner has failed to produce even a single document on the record of the Scrutiny Committee, showing that he or any of his blood relatives belong to 'Halba or Halbi' Scheduled Tribe, which is an entry at Sr. No. 19 in the Constitution (Scheduled Tribes) Order, 1950. In the case of Priya Parate, cited supra, in the old documents prior to 1950, the entry recorded was 'Halba or Halbi' and on the basis of the single entry of 'Koshti', the claim was invalidated. In all other matters where the protection is granted, it was shown that the petitioner or his blood relatives belongs to 'Halba or Halbi', Scheduled Tribe, which were the entries in the old documents prior to 1950. The learned counsel for the petitioner is unable to state before us as to whether the petitioner has obtained the validity certificate as 'Koshti', which is Special Backward Class Category. 9] In view of the aforesaid position, we do not find any substance in the challenge raised to the order passed by the Scrutiny Committee, invalidating the claim of the petitioner for 'Halba Scheduled Tribe', as it is based upon the oral as well as documentary evidence available on record and at any rate, it is a possible view of the matter. Thus, the petitioner is not entitled to ::: Uploaded on - 06/12/2019 ::: Downloaded on - 25/04/2020 08:09:55 :::
3.wp6034.17judge.odt 10/10 any protection in service in view of the decision of the Apex Court in the case of Jagdish Bahira, cited supra. Reliance is placed upon the earlier decision of the Apex Court in the case of Punjab National Bank's Case, cited supra, which we find is considered by the Apex Court in the case of Jagdish Bahira. In view of the decision of the Apex Court in Jagdish Bahira's case, we have no jurisdiction to grant protection, in service, even after the petitioner has rendered 25 years of service.
10] In view of above, this writ petition is dismissed. Rule stands discharged. No order as to costs.
11] At this stage, it is pointed out to us that the Management has deposited the amount of salary in respect of the work performed by the petitioner for the period from 15.09.2017 till 15.11.2017. The petitioner was terminated from service with effect from 05.09.2017. Hence, the question of petitioner working on the said post does not arise and we permit the Management to withdraw the said amount.
JUDGE JUDGE
Namrata
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