Bombay High Court
Purushottam S/O Marotrao Kalbhut vs The Scheduled Tribe Certificate ... on 27 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
Writ Petition No.3489 of 2008
Purushottam s/o Marotrao Kalbhut,
Aged about 47 years,
Occupation - Service,
Resident of Vaishnav-13,
Dwarka Nagari, Anandwan Square,
Warora, Distt. Chandrapur. ... Petitioner
Versus
1. The Scheduled Tribe Certificate
Scrutiny Committee, Nagpur Division,
Nagpur.
2. Maharogi Sewa Samiti, Warora,
At and Post Anandwan-442 914,
Via Warora, Distt. Chandrapur.
3. Dr. Ambedkar Teachers' Welfare
Association, Siddharth Nagar,
Nagpur, Branch Warora,
through its authorized signatory/President,
Sudhakar s/o Domaji Pethkar,
Aged about 43 years,
Occupation - Service,
Office at 71, NIT Layout,
Tilak Ward, Warora, Tahsil Warora,
District Chandrapur. ... Respondents
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Shri M.G. Bhangde, Senior Advocate, assisted by Shri S.N.
Tapadia, Advocate for Petitioner.
Ms Geeta Tiwari, Assistant Government Pleader for Respondent
No.1.
Shri P.S. Wathore, Advocate for Respondent No.3.
Coram : R.K. Deshpande & Mrs. Swapna Joshi, JJ.
th Dated : 27 July, 2017 Oral Judgment (Per R.K. Deshpande, J.) :
1. The petitioner was appointed on the post of Lecturer in the College run by the respondent No.2-Society on 31-8-1988 against a post reserved for Scheduled Tribe category. At the time of his appointment, the petitioner produced the caste certificate dated 26-6-1981 issued by the Executive Magistrate, Wardha, certifying that he belongs to 'Pawara', which is a tribe included in the Constitution (Scheduled Tribes) Order, 1950 at serial No.8.
The petitioner worked on the said post till 10-4-2004, on which date he was appointed as Principal in the same College upon his selection pursuant to the advertisement dated 4-3-2004 inviting applications from the Open Category. The petitioner worked as Principal till 5-8-2013, when he resigned from the said post. ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:49:56 ::: 3
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2. The respondent No.3-Dr. Ambedkar Teachers' Welfare Association, Siddharth Nagar, Nagpur, filed a complaint before the Scheduled Tribe Certificate Scrutiny Committee, Nagpur, on 30-1-2008 alleging that the petitioner belongs to 'Pawar', which is Other Backward Class. The Committee, therefore, took the matter for scrutiny and verification of the caste certificate of the petitioner for 'Pawara', Scheduled Tribe. The claim of the petitioner was invalidated by an order dated 12-5-2008. This petition challenges the said order of the Committee only to the extent it directs cancellation of the promotion of the petitioner to the post of Principal of the College and institution of the prosecution against him under Section 11(2) of the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No.XXIII of 2001).
3. We have heard Shri M.G. Bhangde, the learned Senior ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:49:56 ::: 4 wp3489.08.odt Advocate, assisted by Shri S.N. Tapadia, Advocate, for the petitioner; Ms Geeta Tiwari, the learned Assistant Government Pleader for the respondent No.1; and Shri P.S. Wathore, the learned counsel for the respondent No.3.
4. We have gone through the order passed by the Scrutiny Committee. The order records in para 4 the stand taken by the petitioner before the said Committee that he belongs to 'Pawar (Bhoyar)' caste, which is recognized as Other Backward Class, but due to his or his parents' mistake, the caste 'Pawara' (instead of 'Pawar') was recorded in the School record and, therefore, he obtained the caste certificate as belonging to 'Pawara', Scheduled Tribe. The Committee also records that the petitioner belongs to 'Pawar (Bhoyar)' caste and he has withdrawn his claim for 'Pawara', Scheduled Tribe, and requested the Committee to cancel his caste certificate showing that he belongs to 'Pawara', Scheduled Tribe. The Committee accordingly invalidates the caste certificate dated 26-6-1981 produced by the petitioner and cancels and confiscates it. These findings are not under challenge ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:49:56 ::: 5 wp3489.08.odt in this petition and we have, therefore, to proceed on the footing that the petitioner did not belong to 'Pawara', which is recognized as Scheduled Tribe in entry No.8 of the Constitution (Scheduled Tribes) Order, 1950.
5. The contention of Shri Bhangde, the learned Senior Advocate, is that the Committee has no jurisdiction to direct cancellation of the appointment of the petitioner on the post of Principal and such jurisdiction vests in the employer in terms of Section 10 of the Maharashtra Act No.XXIII of 2001. He submits that even otherwise the appointment of the petitioner on the post of Principal was from the Open Category in response to the advertisement dated 4-3-2004, which clearly specifies that the post was open for all the candidates. He, therefore, submits that the order directing removal of the petitioner from service is without jurisdiction.
6. We have gone through the provision of Section 10 of the Maharashtra Act No.XXIII of 2001, which provides the ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:49:56 ::: 6 wp3489.08.odt consequences of discharge from employment upon invalidation of the caste claim by the Scrutiny Committee, if a person is appointed against a post reserved for any such category. Obviously, it is a power of discharge from employment conferred upon the employer and the observation made by the Scrutiny Committee in para 15 of its impugned order that the petitioner will have to be removed from the post of Principal, can at the most be considered as a recommendation and not as a direction for removal of the petitioner from the post of Principal. It is open for the employer to take a decision on this question taking into consideration the facts and circumstances of the case, including the question as to whether the appointment of the petitioner to the post of Principal was a direct appointment or an appointment by way of promotion. We are, therefore, unable to construe the observation of the Scrutiny Committee in para 15 of its impugned order as a direction to the respondent No.2 to remove the petitioner from the post of Principal.
7. Inviting our attention to paras 51 and 52 of the decision ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:49:56 ::: 7 wp3489.08.odt of the Apex Court in the case of Chairman and Managing Director FCI and Ors. v. Jagdish Balaram Bahira and Ors., reported in 2017(7) SCALE 395, Shri Bhangde, the learned Senior Advocate, has urged that the finding of the Scrutiny Committee in para 16 of its impugned order is with reference to the offence under Section 11 of the Maharashtra Act No.XXIII of 2001, and the Apex Court has held that the provision of Section 11(1) of the said Act must be read and construed in a prospective sense having regard to the guarantee contained in Article 20(1) of the Constitution. The Apex Court also holds that the offence having been created by the Maharashtra Act No.XXIII of 2001, the Act which constitutes the offence must relate to a period after the date of the enforcement of the Act and it must be construed prospectively.
8. In para 17 of the impugned order, the Scrutiny Committee records the findings as under :
"17. The caste certificate of the non-applicant in ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:49:56 ::: 8 wp3489.08.odt question reveals that before the Executive Magistrate, Wardha, he suppressed the documentary evidence in respect of his real elder brother showing his caste as Pawar and obtained the caste certificate as belonging to Pawara, Scheduled Tribe from the Executive Magistrate, Wardha. Therefore, the Scrutiny Committee vide the powers vested in it under section 11(2) of the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No.XXIII of 2001), hereby authorises Shri B.R. Patil, I/C Deputy Superintendent of Police, Police Vigilance Cell, Scheduled Tribe Certificate Scrutiny Committee, Nagpur to lodge a complaint in the form of F.I.R. with the concerned Police Station against Shri Purushottam Marotrao Kalbhoot."
The Committee has authorized B.R. Patil, Incharge Deputy Superintendent of Police, Police Vigilance Cell, Scheduled Tribe Certificate Scrutiny Committee, Nagpur, to lodge a complaint in the form of F.I.R. with the concerned Police Station against the petitioner for the act of suppression of the documentary evidence ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:49:56 ::: 9 wp3489.08.odt in respect of his real elder brother showing his caste as 'Pawar' and obtained the caste certificate as belonging to 'Pawara', Scheduled Tribe, from the Executive Magistrate, Wardha.
9. We are confronted with the question - whether in the absence of the provisions of the Maharashtra Act No.XXIII of 2001, the prosecution of the petitioner as contemplated in the judicial legislation contained in the decision of the Apex Court in the case of Kumari Madhuri Patil and another v. Addl. Commissioner, Tribal Development and others, reported in AIR 1995 SC 94, is tenable or not. This decision was delivered by the Apex Court on 2-9-1994. The prosecution of the petitioner may be possible in other law for the time being in force, and we do not propose to examine this aspect at this stage. The order of the Scrutiny Committee merely authorizes institution of prosecution against the petitioner and if such prosecution is not tenable, it shall be open for the petitioner to challenge institution of such proceedings by approaching the appropriate forum in accordance with law. Merely because authorization is granted to ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:49:56 ::: 10 wp3489.08.odt institute prosecution, does not mean that any of the provisions creating offences would apply and the case will have to be independently examined by the appropriate Court.
10. With the aforesaid observations, we dismiss this petition. However, in the circumstances, there shall be no order as to costs.
JUDGE. JUDGE.
Lanjewar
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