Madhya Pradesh High Court
Smt. Rashmi Shandge vs The State Of Madhya Pradesh Thr. on 22 February, 2018
1
HIGH COURT OF MADHYA PRADESH
Writ Peititon No.3400/2015
Smt. Rashmi Shendge
Versus
State of M.P. and Others
Shri M.P.S.Raghuvanshi, learned counsel for the
petitioner.
Shri Abhishek Mishra, learned Government
counsel for the State.
Shri D.K.Katare, learned counsel assisted by Shri
Alok Katare, counsel for the Intervenor.
&
Writ Peititon No.4758/2015
Smt. Rashmi Shendge
Versus
State of M.P. and Others
Shri M.P.S.Raghuvanshi, learned counsel for the
petitioner.
Shri Abhishek Mishra, learned Government
counsel for the State.
&
Writ Peititon No.8776/2012
Sandeep Dubey
Versus
State of M.P. and Others
Shri D.K.Katare, learned counsel assisted by Shri
Alok Katare, counsel for the petitioner.
Shri Abhishek Mishra, learned Government
counsel for the respondents No.1 to 3 and 5.
Shri M.P.S. Raghuvanshi, learned counsel for the
respondent No.4.
Gwalior, Dated : 22-02-2018
Since the subject matter of all these three petitions
is same, therefore these petitions are heard analogously
2
HIGH COURT OF MADHYA PRADESH
and are being decided by this common order.
Facts of W.P.3400/2015(S) are taken into
consideration for deciding the controversy and for factual reference. Facts of the other two petitions are taken in brief.
W.P.8776/2012 has been preferred by the petitioner (Sandeep Dubey) against the respondents including the petitioner of other two writ petitions (Smt. Rashmi Shendge). The said writ petition was in the nature of quo warranto wherein through the facts narrated in the petition, it was demonstrated that appointment of respondent No.4 (Ms. Rashmi Shendge) in the Public Health Department of the State of MP, which is a public office, is on the basis of false caste certificate. Therefore, she could not have been appointed. The said writ petition was pending consideration, when the Caste Scrutiny Committee held the caste certificate of the petitioner as incorrect/false, vide order dated 08.05.2015, therefore Smt. Rashimi Shendge preferred W.P.3400/2015 challenging the order dated 08.05.2015 passed by the State Level Caste Scrutiny Committee, Government of M.P..
During the pendency of both the writ petitions referred above and during promulgation of interim order dated 09.07.2015 in W.P.3400/2015, an FIR has been registered under Section 420 of IPC at Police Station Padav, Gwalior, therefore another W.P.No.4758/2015 was preferred. Since then, this petition was also pending consideration with the other two writ petitions.
3HIGH COURT OF MADHYA PRADESH For brevity and clarity purpose, facts of W.P.3400/2015 are taken into account.
With consent, all three writ petitions are heard finally.
Precisely stated facts of the case are that the petitioner has preferred this writ petition under Article 226/227 of the Constitution of India being crestfallen by the order dated 08.05.2015 passed by the State Level Caste Scrutiny Committed (Annexure P/1), whereby the caste certificate issued to the petitioner has been directed to be cancelled on the ground that petitioner does not belong to "Dhangarh" (/kux<+) +Scheduled Tribe (hereinafter referred to as 'ST'). The said findings of the committee are being challenged in this writ petition.
As submitted by the petitioner in the petition that petitioner is holding the post of Tracer in Public Health Engineering Department (hereinafter referred to as 'PHED') and posted at Gwalior. Father of the petitioner entered into Government service in the year of 1972 and at the time of his entry in service, his service record was prepared where the caste certificate of the petitioner's father was recorded to be Maratha (Dhangarh). The said caste, was not included in Scheduled Tribe category uptill 1978. The caste was included in ST category by General Administration Department vide notification dated 31.01.1978 declaring "Dhangarh" (/kux<+) caste to be ST in the State of M.P. vide notification Annexure P/3.
It appears that when father of the petitioner 4 HIGH COURT OF MADHYA PRADESH Ravindra Kumar Khatke entered into Government service, the said caste was not included in ST category. Therefore, he did not take benefit of reservation under the State. It was pleaded in the petition that petitioner received scholarship of ST while studying school at Bhopal. She was appointed as Tracer in the PHED vide order dated 26.03.1999 under the ST category. Since the Dhangarh as ST was included in the year of 1978, therefore, petitioner and her father got a caste certificate dated 01.07.1989 duly issued by the Tahsildar, Bhopal.
Petitioner married with Arjun Rao in the year 1996 and in the year 2012, due to personal differences from her husband, petitioner was compelled to live separately. It appears from the record that legal proceedings are pending inter-se petitioner and husband at the relevant point of time. Meanwhile, due to separation from her husband, as per the allegations, Sandeep Dubey (present intervenor and petitioner of W.P.8776/2012) who was the Assistant Engineer at the relevant time made advancement towards the petitioner and tried to gain sexual favour but failed in his attempt. As per allegations, he made complaints to different authorities which resulted into issuance of show cause notice dated 31.12.2013 (Annexure P/9). Thereafter, Caste Scrutiny Committee held the meeting, wherein father of the petitioner participated and result is the impugned order by which Caste Scrutiny Committee came to the conclusion that petitioner could not prove her caste status as Dhangarh and therefore, her caste certificate 5 HIGH COURT OF MADHYA PRADESH was cancelled with consequential action. Therefore, the petitioner is before this Court.
According to learned counsel for the petitioner, the Committee has proceeded arbitrarily to the extent that it has not considered the directions given by the Apex Court in the case of Kumari Madhuri Patil and Another vs. Addl. Commissioner,Tribal Development and Others reported in AIR 1995 SC 94 and the directions given into it. He referred to para 12 of the said judgment and submits that the present case is an example of breach of Clause 5 of para 12 given in Madhuri Patil's case, wherein directions have been given. The said direction as contained in para 12 (5) stipulates that every Department shall formulate a vigilance cell and composition of same has been discussed in the said directions itself and shall undertake inquiry with the help of Station House Officer concerned who has to visit the native place of the person and try to get the information from his native place, relative, friend and neighbour and about the other anthropological and sociology aspects which are helpful inclusively in deciding the controversy. The said directions are substantive and exhaustive in nature and if after an inquiry the authority comes to the conclusion that certificate appears to be false and fake then only committee can direct the candidate to appear and explain. In the present case, violation of Clause 5 is apparent because the impugned order nowhere contains that from where the enquiry has begun and where it is 6 HIGH COURT OF MADHYA PRADESH complied with.
He relied upon the findings of the Caste Scrutiny Committee vis-a-vis direction given in Clause 5 of para 12 of the judgment and submitted that violation is apparent on record.
On the other hand, learned counsel for the respondents opposed the prayer made by the petitioner. Learned counsel for the State submits that three show cause notices were given to the petitioner. Smt. Rashmi Shendge did not turn up, did not give any particulars about the location etc. nor gave any document. She herself submits that vide Annexure P/6 she is the original resident of Bhopal, whereas Annexure P/1 says that her father is the resident of Indore. He placed reliance upon the judgments 2013 (3) SCC 690 & 2013 (4) SCC 465 and submitted that no interference is warranted.
On the other hand, learned counsel for Intervenor, Shri D.K.Katare, submits that all F.I.Rs against Sandeep Dubey registered at the instance of petitioner .have been quashed by this Court. Smt. Rashmi Shendge has taken money from the Intervenor Sandeep Dubey and therefore, civil suit against the petitioner for recovery of money has been decreed. He also submits that civil suit has been filed against lady for recovery of money decree because she has taken money from the intervenor on false pretext and did not return back. It is further submitted that the burden of prove lies on the petitioner and over the party, who knows the facts and 7 HIGH COURT OF MADHYA PRADESH circumstances of the case as well as upon the judgments AIR 1995 SC 1506 & 1975 JLJ 333 as well as upon the judgments 2008 (2) MPLJ 52 & AIR 2015 SCW 1195 and prayed for dismissal of writ petition.
Heard the learned counsel for the parties at length and perused the record appended hereto.
The concept of State Level Caste Scrutiny Committee and the scope of judicial review has been discussed in the case of Kumari Madhuri Patil & Another vs. Addl. Commissioner,Tribal Development and Others reported in AIR 1995 SC 94. The Clause 5 of Para 12 of the judgment refers the procedure. It stipulates as under :-
(5). Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from, the vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, 8 HIGH COURT OF MADHYA PRADESH mode of marriage, death ceremonies, method of burial of dead bodies etc. by the concerned castes or tribes or tribal communities etc. The said mandate, if kept in juxta-position to the findings given by State Level Caste Scrutiny Committee, then it appears that they are perverse findings and are not allowed to stand. Clause 5 of the said order contemplates certain steps to be taken by the respondents to ensure caste status of a person. Here in the present case, Clause 5 appears to be not complied with, although the respondents have taken into consideration the certificate issued by the Office of Tahsildar, Bhopal, factum of Ravindra Kumar Khatke as Draftman and admission of husband of the petitioner that she belongs to Maratha Community.
Similarly, Assistant Commissioner, Tribal Welfare, has conducted an inquiry in which he found that petitioner belongs to Dhangad (/kuxj) and, therefore, comes under the Other Backward Class. Dhangarh (/kux<+) comes under ST. On the basis of reply filed by the petitioner and appearance of the father of the petitioner, the case has been decided in State Level Caste Scrutiny Committee without resorting to Clause 5 of the policy enumerated in para 12 of Madhuri Patil's (supra) judgment. The fate of the petitioner has been decided in a slipshod manner.
From the perusal of the Clause 5 of Para 12 of Judgment of Madhuri Patil (supra), it is revealed that in case of migration, procedure has been provided for the 9 HIGH COURT OF MADHYA PRADESH police party to arrive at the conclusion. The said aspect appears to be missing in the State Level Caste Scrutiny Committee. The judgments relied upon by the respondents are of no avail to them because they are the cases where State Level Caste Scrutiny Committee has considered the relevant aspects/clauses whereas, in the present case, it does not appear that said clause has been followed and has been complied with. Therefore, the order appears to be perverse. Resultantly, it has to go and matter is to be remanded back to State Level Caste Scrutiny Committee to consider the case of the petitioner afresh and pass a reasoned order by affording opportunity for hearing to the petitioner within the stipulated period. It is made clear that petitioner is allowed to participate in the proceedings so as to advance her submission in person because in response to show cause notices, petitioner although replied but the said replies are not sufficient to demonstrate that she does not belong to Dhangarh (/kux<+) Community and therefore, she is not entitled for any benefit of ST. Petitioner has to plead and prove her caste status on objective and substantial grounds.
The impugned order is hereby set aside and respondents are at liberty to proceed further against the petitioner afresh in accordance with law and as per mandate of the Apex Court as referred to in Clause 5 of para 12 of the judgment rendered by the Apex Court in the case of Madhuri Patil (supra). The petitioner is directed to appear before the State Level Caste Scrutiny 10 HIGH COURT OF MADHYA PRADESH Committee or the Secretariate of the Committee on 20th March 2018 and shall take guidance from the Committee in the matter. The Committee shall deal with the complete proceedings within three months from the date of appearance, taking resort to the compliance on the basis of judgment rendered by the Apex Court in the case of Madhuri Patil (supra) and after due inquiry, pass an appropriate order. Since the petitioner is enjoying the interim protection, till date, therefore, in the interest of justice, the effect and operation of the impugned order dt.08/05/2015 shall not be given effect to by the respondents in any manner but she is restrained to use her caste-status of Dhangarh to receive any other benefits (including the promotion) during the period, when the State Level Caste Scrutiny Committee would ponder over her case and till the matter is decided afresh. Although service of the petitioner shall not be affected adversely till the decision of State Level Caste Scrutiny Committee but she would not be entitled to any promotion or other higher benefits during the said period. W.P.3400/2015 is allowed and disposed of, in above terms.
As far as W.P.8776/2012 is concerned, in view of the fact that the case of the caste status has not been finally adjudicated and, therefore, plea of quo warranto is not liable to be sustained at this stage. After the determination of caste status of petitioner by State Level Caste Scrutiny Committee, the intervenor, namley Sandeep Dubey (in W.P.8776/2012) would be at liberty 11 HIGH COURT OF MADHYA PRADESH to renew his prayer in accordance with law if any cause of action subsists.
In WP.4758/2015, FIR against the petitioner is under challenge. Till the case of petitioner is decided by State Level Caste Scrutiny Committee conclusively (within preferably three months), no coercive action in pursuant to registration of F.I.R. at Police Station Padav shall be undertaken by the Police Department and F.I.R. would be kept in abeyance to await the order of State Level Caste Scrutiny Committee. Thereafter, further follow up action shall be ensured as per the verdict of the Committee.
All three petitions stand disposed of with the aforesaid directions.
(Anand Pathak) Judge AK/-
Digitally signed by ANAND KUMARDate: 2018.03.05 19:17:13 +05'30'