Bombay High Court
Shrirang Baburao Dhakate vs The State Of Maharashtra & 2 Others on 13 June, 2016
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1664 OF 2001
Shrirang s/o Baburao Dhakate,
Aged about 39 years, resident of
Armori, District : Gadchiroli, ..... Petitioner.
:: V E R S U S ::
1. The State of Maharashtra,
Through its Secretary, Tribal
Development Department,
Mantralaya, Mumbai-32.
2. Committee for Scrutiny &
Verification of Tribe Claims,
Giripeth, Adivasi Vikas Bhavan,
Amravati Road, Nagpur.
3. The Senior Regional Manager,
Hindustan Petroleum Corporation
Limited, Oriental Building,
Second Floor, Kamptee Road,
Nagpur. ..... Respondents.
Ravindra Maroti Naitam, Aged about
45 years, Occupation Agriculturist,
Resident of Armori, District Gadchiroli. ..... Intervenor.
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Shri P.C. Madkholkar, Counsel for the Petitioner.
Shri Anil Mardikar, senior counsel for the intervenor.
Shri S.B. Bissa, Asstt. Government Pleader for Resp. Nos.1 & 2.
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Judgment
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CORAM : B.P. DHARMADHIKARI &
KUM. I.K. JAIN,
JJ.
DATED : JUNE 13, 2016.
ORAL JUDGMENT : (Per : B.P. DHARMADHIKARI, J.)
1. The matter is called out today for final hearing. It was earlier called out on 6.6.2016 and came to be adjourned to today, as last chance.
2. The challenge in this writ petition is to order dated 21.4.2001 passed by respondent No.2-committee invalidating caste claim of the petitioner as belonging to "Halba" Scheduled Tribe. The writ petition came to be filed on 28.5.2001 and on 29.5.2001, while issuing notice before admission in the matter, this Court granted ad interim stay of that order. The said interim order continues to operate, even today.
3. The petitioner had been given Liquified Petroleum Gas (L.P.G.) dealership in year 1989 as a person belonging to "Halba"
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::: Uploaded on - 16/06/2016 ::: Downloaded on - 18/06/2016 00:00:21 :::Judgment wp1664.01 3 Scheduled Tribe. The status of the petitioner as "Halba" Scheduled Tribe and his entitlement to said dealership is, therefore, in question.
One Ravindra Maroti Naitam has filed an application for intervention, which was granted on 24.4.2007, and he has been added as intervenor.
4. Learned counsel Shri P.C. Madkholkar for the petitioner points out that, till coming into force of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance & Verification of) Caste Certificates Act, 2000 (Act No.XXIII of 2001), the scrutiny committee had jurisdiction only to verify caste claims for the purposes of granting admissions to professional colleges or then for service purposes. Thus, the committees, till then functioning, under various Government Resolutions did not possess power to verify caste claim of the petitioner and hence, order dated 21.4.2001 is without jurisdiction and void. In the alternative and without prejudice, he states that the scrutiny committee was duty bound to adhere the principles laid down .....4/-
::: Uploaded on - 16/06/2016 ::: Downloaded on - 18/06/2016 00:00:21 :::Judgment wp1664.01 4 by the Honourable Apex Court in the case of Kumari Madhuri Patil and another ..vs.. Additional Commissioner, Tribal Development and others, reported at AIR 1995 SCC 94, but those principles have been violated. There was no research officer associated in the matter and no vigilance enquiry, as stipulated therein, has been conducted.
The petitioner did not receive copy of vigilance enquiry report and did not get an opportunity to rebut. He, therefore, submits that, in any case, if this Court finds that the scrutiny committee had jurisdiction, the matter needs to be remanded back. However, he adds that this is a third round of litigation and in view of protection made available to the similar candidates in employment vide Full Bench judgment of this Court in the case of Arun Vishwanath Sonone ..vs.. State of Maharashtra and ors, reported at 2015(1) Mh.L.J. 457, similar protection needs to be given to the present petitioner. The petitioner is managing L.P.G. dealership since year 1989, for almost past twenty-
seven years, and it cannot be allowed to be disturbed now. He submits that Writ Petition No.3135 of 1989 was filed by one Shriram Madavi questioning caste claim of the petitioner and grant of L.P.G. dealership to him. That writ petition was summarily rejected on 26.3.1990.
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::: Uploaded on - 16/06/2016 ::: Downloaded on - 18/06/2016 00:00:21 :::Judgment wp1664.01 5 Thereafter, due to threats of fast to death, the State Government itself made a reference of caste dispute to the committee, but the order passed thereupon was withdrawn by the committee before this Court.
The impugned order, thereafter, has been passed on 21.4.2001. He contends that the impugned order is, thus, unsustainable and liable to be quashed and set aside.
5. Learned Assistant Government Pleader Shri S.B. Bissa for respondent Nos.1 and 2 submits that respondent Nos.1 and 2 have not filed any affidavit-in-reply on record and as such he is facing difficulties in defending the matter. He, however, adds that when dispute about the caste was referred to the committee by the State Government, it cannot be said that the committee does not possess jurisdiction. He further adds that perusal of the impugned order, passed by the scrutiny committee, reveals that the scrutiny committee came across some old documents wherein caste was recorded as "Koshti" and hence, the claim of the petitioner as belonging to "Halba"
Scheduled Tribe is found to be incorrect.
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6. Learned senior counsel Shri Anil Mardikar for the intervenor, adopts arguments of learned Assistant Government Pleader Shri S.B. Bissa for respondent Nos.1 and 2. He adds that, in this situation, as there is no jurisdictional error or perversity, no case is made out warranting interference and the writ petition petition needs to be dismissed.
7. The fact that the petitioner has been given L.P.G. dealership, as "Halba" Scheduled Tribe candidate in year 1989, is not in dispute. Fact that the petitioner is still managing that business, is also admitted position. Filing of Writ Petition No.3135 of 1989 contending that the petitioner is not Scheduled Tribe candidate and its rejection on 26.3.1990, is also not in dispute before this Court. The petitioner has, in paragraph No.4 of the writ petition, pointed out that he received communication dated 24.1.1994 and along with it total 14 documents whereby his caste claim was referred to the scrutiny committee. Order of the Government dated 9.11.1990 mentioned that one Shriram Madavi had threatened to go on indefinite hunger strike and, therefore, the matter was referred to the committee. The .....7/-
::: Uploaded on - 16/06/2016 ::: Downloaded on - 18/06/2016 00:00:21 :::Judgment wp1664.01 7 petitioner has also stated that on 25.2.1994, he has received a caveat filed by Shriram Madavi before this Court. The committee passed an order invalidating caste claim of the petitioner on 19.2.1994 and the petitioner questioned it in Writ Petition No.572 of 1994.
8. Ultimately, this Court remanded the matter back to the caste scrutiny committee. The claim was again invalidated and Writ Petition No.2929 of 1996 was filed by the petitioner. This Court granted interim relief, but the scrutiny committee filed a pursis accepting that it had not followed necessary procedure. The petition was, therefore, disposed of keeping all objections open.
9. Petitioner then points out that he received a notice to remain present on 29.09.2000. Petitioner had raised a preliminary objection. At the time of hearing there were about 30 persons and all of them were asked to sign on blank paper. Petitioner's signature was also obtained similarly. We are not required to go into all these disputed questions, however, it is to be noted that the respondent nos.
1 to 3 or then the intervenor, have not filed any affidavit refuting these .....8/-
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10. As far as the legal grounds are concerned, the petitioner has added ground nos. [j] and [k] in December, 2015. He has invited attention to the judgment of Hon'ble Apex Court in case of Ku.
Madhuri Patil (supra), and specifically stated that neither the Vigilance Inquiry was conducted as laid down therein, nor any such report was supplied to him. Again these assertions have not been refuted by the respondents.
11. Perusal of the impugned order of the Scrutiny Committee dated 21.04.2001 reveals that the petitioner has relied upon the caste certificate dated 13.08.1976, issued to him; Primary school leaving certificate issued to him on 04.05.1965, similar certificate issued to his younger sister on 01.07.1968 and Secondary School leaving certificate issued to his younger sister on 12.06.1972. All these documents mention caste as "Halba" Scheduled Tribe. Impugned order nowhere shows that these documents were found to be interpolated or then school records were found to be tampered with.
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12. The Scrutiny Committee has mentioned that to record petitioners say on police vigilance report, he was called for hearing on 25.05.2000, but, he remained absent and sought next date. He was asked thereafter to appear on 13.06.2000, 29.06.2000 and 29.08.2000, but, he purposefully avoided to remain present. He was then called on 29.09.2000. On that day, he filled in the questionnaire and was heard.
But, he did not gave any say on the police vigilance cell report. The Scrutiny Committee therefore has concluded that impliedly he accepted the truth thereof. It is in this backdrop that it has noted the old documents where the caste was recorded as "Koshti" in respect of candidates uncle namely - Pandharinath Govind Dhakate and Sudhakar Govind Dhakate in School Admission Register. Caste of candidates grand-father is also found to be recorded as 'Koshti' in the revenue record. Service book of candidates' father is also found to be mentioning same caste. These documents are therefore, given more importance.
13. Perusal of the impugned order does not show that the .....10/-
::: Uploaded on - 16/06/2016 ::: Downloaded on - 18/06/2016 00:00:21 :::Judgment wp1664.01 10 petitioner was served with copy of the vigilance cell report and thereafter time of two weeks, as stipulated in case of Ku. Madhuri Patil, was given to him. In absence of this material on record, it is difficult for this Court to hold that order passed is legal and valid as it violates clauses 4, 5 and 6 of said judgment.
14. The Scrutiny Committee as also the intervenor got sufficient time to point out true and correct position on record.
However, they have not filed any reply affidavit. One Rajeev Shah Bhagwan Shah has filed Civil Application No.760/2010, seeking leave to intervene in the matter. It appears that he is also opposing the petition. However, nobody appears for him to argue that application.
15. Respondent no.4 filed a return and it's perusal reveals that the present petitioner contested some election in which he was also a participant. This return does not advance the cause of respondent no.2 Scrutiny Committee at all.
16. The uncertainty about fate of Halba Koshti candidates or .....11/-
::: Uploaded on - 16/06/2016 ::: Downloaded on - 18/06/2016 00:00:21 :::Judgment wp1664.01 11 Halba Scheduled tribe candidates was prevailing for long time. The matter came to be settled ultimately when the Constitution Bench of Hon'ble Supreme Court delivered judgment reported at 2000 (1) SCC 4 (State of Maharashtra .vrs. Milind Katware). The Full Bench of this Court in 2015 (1) Mh.L.J. 457 (Arun Sonone .vrs. State of Maharashtra and others) has in this background extended protection in employment to all such candidates who are found not to have played any fraud or interpolated the documents for the purpose of either procuring employment of caste certificate. Here the old documents of petitioner and his sister itself record caste as 'Halba'.
These documents are not found to be tampered with. In the impugned order there is no mention of any fraud practiced by the petitioner.
The LPG dealership is alloted to him way back in the year 1989, and he is running it since last about 27 years. Thus, more than half of is active live has already gone in that business. If the dealership is now cancelled, entire family of petitioner will suffer.
17. The petitioner who has assailed the order of the Scrutiny Committee dated 24.01.2001, has not explained relation with or stated .....12/-
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18. The provisions of Maharashtra Act No. 23 of 2001 have come into force on 18.10.2001. The impugned order has been passed about 6 months prior to that. The petitioner has fairly placed on record a copy of resolution dated 09.09.1999. There, while prescribing the nature of work of the Scrutiny Committee, vide clause [d], it is mentioned that the Scrutiny Committee has also to verify the caste claims which are entrusted to it by the Government, Tribal Development Department. In this situation, as the case of petitioner was entrusted to the Scrutiny Committee by the Government itself, we do not find it necessary to pronounce upon the dispute about its jurisdiction. We keep the issue open for its due adjudication in more appropriate facts.
19. In this situation, taking over all view of the matter, we find that the impugned orders cannot be used to deprive the petitioner .....13/-
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20. Accordingly, with these directions we partly allow the Writ Petition and dispose of the same. No costs.
JUDGE JUDGE
!! BRW !!
rgd
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