Bombay High Court
Ajaysingh S/O Bhagwansingh Dhurve vs Deputy Director And Member-Secy., The ... on 10 July, 2024
Author: M.S. Jawalkar
Bench: Vinay Joshi, M.S. Jawalkar
2024:BHC-NAG:7313-DB
2-WP 1210-2023.odt 1/21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1210 OF 2023
Mr. Ajaysingh S/o. Bhagwansingh
Dhurve, aged about 28 years, Occ.
Terminated from service, R/o. at
Kalaphata, Post. Mahuli, Tah.
Parshioni, District Nagpur. ....PETITIONER
....VERSUS....
1. Deputy Director & Member-
Secretary, The Scheduled Tribe
Certificate Scrutiny Committee,
Nagpur, opposite to office of
R.T.O., Giripeth, Nagpur.
2. Executive Engineer,
Maharashtra State Electricity
Transmission Company Ltd.
Office at Administrative Building,
220 K.V. Bale Sub Station
Premises, Barshi Road,
Ambikanagar, Bale, Solapur-
413255 (M.S.)
3. Chief Executive Engineer, High
Voltage Project, Maharashtra State
Electricity Transmission Company
Ltd. Sub Division, Pune. .....RESPONDENTS
-----------------------------------------------------------------------------------------
Shri Ananta Ramteke, Advocate for petitioner.
Shri V.A.Thakre, AGP for respondent no. 1/State.
Shri S.D. Zoting, Advocate for respondent nos. 2 & 3.
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2-WP 1210-2023.odt 2/21
CORAM : VINAY JOSHI AND
SMT. M.S. JAWALKAR, JJ.
DATE OF RESERVING THE JUDGMENT: 02/07/2024
DATE OF PRONOUNCING THE JUDGMENT : 10/07/2024
JUDGMENT (PER: SMT. M.S. JAWALKAR, J.)
Heard.
2. Rule. Rule made returnable forthwith.
3. Heard finally by consent of learned counsel appearing for the parties.
4. The present petition is filed challenging the order dated 12/08/2021 passed by respondent no. 1 - The Scheduled Tribe Certificate Scrutiny Committee, Nagpur, (for short, 'Scrutiny Committee'), therey the caste claim of the petitioner is invalidated.
5. It is submitted by the petitioner that the petitioner was born on 22/07/1993 at Mahuli, Tah. Parshioni, District Nagpur. However, the parents of the petitioner being illiterate, they could not enrolled the date of birth of the petitioner on birth/death register of Nagar Panchayat, Mahuli, Tah. Parshioni, District Nagpur. As the birth entry of 2-WP 1210-2023.odt 3/21 the petitioner was not available, the petitioner filed case/application before learned J.M.F.C., Parshioni for registration of birth. The learned J.M.F.C., Parshioni allowed the application by its judgment dated 15/11/2021 and directed the Birth and Death Registration Officer, Nagar Panchayat Mahuli, Tah. Parshioni to take entry of birth of petitioner and issue birth certificate to the applicant/petitioner.
6. It is further submitted that the father and ancestors of the petitioner are originally hailed from village Pendhari, Tah. Barghat, District Shioni (Madhya Pradesh). The petitioner claims to belonging to "Gond Tribe" which is notified at Sr. No. 18 in the Constitutional (Scheduled Tribe) Order 1950. The S.D.O., Ramtek, District Nagpur issued Tribe certificate in favour of the petitioner on 09/03/2018 certifying that, he belongs to "Gond" Scheduled Tribe.
7. It is further submitted that, on 16/11/2017, the petitioner being eligible recruited as an Assistant Technician under the establishment of respondent nos. 2 and 3 against 2-WP 1210-2023.odt 4/21 the post reserved for the Scheduled Tribe. As per the guidelines of the State Government, the employees who recruited against the post for reserved category have to submit the validity certificate. On 10/04/2018, the tribe claim of the petitioner was forwarded to respondent no. 1 - Scrutiny Committee for its verification along with requisite documents. On 12/08/2021, the respondent no. 1 - Scrutiny Committee passed final order thereby invalidated the tribe claim of the petitioner for "Gond" Scheduled Tribe and cancelled and confiscated the tribe certificate of the petitioner issued by the competent authority. As a result of this, on 23/11/2021, the employer of the petitioner i.e. respondent no. 2 terminated the service of the petitioner on the count of invalidation of his tribe claim by respondent no. 1. Hence, the petitioner has filed the present Writ Petition.
8. The petitioner had submitted the following documents of State of Maharashtra:-
i) Kotawal Panji pertains to year 1946 of great grandfather Lakha S/o. Sitaram having one male child, 2-WP 1210-2023.odt 5/21 Karvahi, Tq. Ramtek, District Nagpur as 'Gond'.
ii) The petitioner's Primary School Leaving Certificate of 1999 as caste 'Gond'.
iii) The petitioner's grandfather Sunnelal Lakha Dhurve's death certificate pertains to year 2004 issued by Umri, Tq.
Ramtek, Dist. Nagpur.
iv) The petitioner's Middle School leaving certificate of 2006 as caste 'Gond'.
v) The petitioner's caste certificate of 2018 issued by Executive Magistrate, Ramtek.
9. It is the contention of the learned counsel for the petitioner that the respondent no. 1- Scrutiny Committee has not disputed about the tribe of the petitioner i.e. 'Gond' as claimed by him, which is enlisted at Entry No. 18 in the cluster of Scheduled Tribe. However, respondent no. 1 invalidated the tribe claim of the petitioner solely on the ground that the father of the petitioner was not original resident of Maharashtra. The petitioner's forefathers were originally hailed from village Pendhari, Tah. Barghat, District 2-WP 1210-2023.odt 6/21 Shioni (Madhya Pradesh). The place where the forefathers of the petitioner were residing i.e. at Pendhari, Tah. Barghat, District Shioni was earlier the part of Central Provinces and Berer Region and the Nagpur Region was also a part of C.P. and Berar. In the year 1950, the Gond community was notified as a Scheduled Tribe under the Constitution (Scheduled Tribe) Order 1950 at Sr. No. 18, when the District Shioni and Nagpur Region were part of the same Central Provinces and Berar. Since the Tribe 'Gond' of Central Provinces and Berar was included in the Constitution (Scheduled Tribe) Order, 1950. On bifurcation of C.P. and Berar due to State reorganization, the member of Scheduled Tribe belonging to one region would continue to get the same benefit, despite bifurcation thereof in terms of the State Reorganization Act. In other words, by virtue of Constitution (Scheduled Tribe) Order, 1950, the tribe 'Gond' was included in the list of Scheduled Tribe in part of both the States prior to the State Reorganization Act. It is therefore, submitted that, by virtue of the fact that in constitution (Scheduled Tribe) 2-WP 1210-2023.odt 7/21 Order, 1950, the 'Gond' has been considered as a Scheduled Tribe in both the State i.e. in the State of Maharashtra as well as in the State of Madhya Pradesh, therefore, the petitioner is entitled to the status of Scheduled Tribe in the State of Maharashtra.
10. The learned counsel for the petitioner relied on the following citations:-
1) Sudhakar Vithal Kumbhare V/s. State of Maharashtra and ors. [2004(4) Mh.L.J. 784]
2) Hitesh Dasiram Murkute V/s. State of Maharashtra and ors.
[2007(5) Mh.L.J. 454]
3) Pankaj Kumar V/s. State of Jharkhand and ors. [(2021) 20 SCC 545
11. The learned Assistant Government Pleader supported the impugned order passed by the Scrutiny Committee and submitted that the petitioner migrated to the State of Maharashtra after 1950 and therefore, the petitioner is not entitled to claim the benefit in the State of Maharashtra. Hence, the Scrutiny Committee passed an appropriate order which needs no interference and prayed for dismissal of the present petition.
2-WP 1210-2023.odt 8/21
12. The learned AGP relied on the following citations:-
1) Bir Singh V/s. Delhi Jal Board and ors. [(2018) 10 SCC 312]
13. Heard both the parties at length. Perused the record and proceedings submitted by the learned AGP. There is no dispute over the fact that in State reorganization in 1960, some of the portion of C.P. and Berar, then province was bifurcated and some portion of C.P. and Berar joined to Madhya Pradesh and some portion of the said C.P. and Berar was joined to Maharashtra. The petitioner placed on record the map of C.P. and Berar, then existing which clearly shows that Nagpur, Shioni, Jabalpur and Chindwara were parts of C.P. and Berar. This fact is also not disputed by the learned AGP.
14. The learned counsel for the petitioner relied on Pankaj Kumar (supra), wherein the Hon'ble Apex Court held in para 50 as under:-
"50. This Court, while examining almost a similar nature of controversy in Sudhakar Vithal Kumbhare 2-WP 1210-2023.odt 9/21 (2004) 9 SCC 481 held as under: (SCC pp. 484-85, para
5) "5. But the question which arises for consideration herein appears to have not been raised in any other case.
It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered disadvantages and been denied facilities for development and growth in several States. They require protective preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantaged and developed sections of the community. The question is as to whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in Chhindwara region, a part of which, on States' reorganisation, has come to the State of Maharashtra, was entitled to the benefit of reservation. It is one thing to say that the expression "in relation to that State"
occurring in Article 342 of the Constitution of India should be given an effective or proper meaning so as to exclude the possibility that a tribe which has been included as a Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in another State whose Governor has not been consulted; but it is another thing to say that when an area is dominated by members of the same tribe belonging to the same region 2-WP 1210-2023.odt 10/21 which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the States. In other words, the question that is required to be posed and answered would be as to whether the members of a Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of the States Reorganisation Act. With a view to find out as to whether any particular area of the country was required to be given protection is a matter which requires detailed investigation having regard to the fact that both Pandhurna in the district of Chhindwara and a part of the area of Chandrapur at one point of time belonged to the same region and under the Constitution (Scheduled Tribes) Order, 1950 as it originally stood the tribe Halba/Halbi of that region may be given the same protection. In a case of this nature the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganisation might have agreed for inclusion of the said tribe Halba/ Halbi as a Scheduled tribe in the State of Maharashtra having regard to the said fact in mind."
15. The learned counsel for the petitioner further relied on Hitesh Dasiram Murkute (supra), wherein it is held in para 9 as under:-
2-WP 1210-2023.odt 11/21
"9. In view of this position of law, declared by this Court, following judgment of the Supreme Court in Sudhakar Vitthal's case, the petitioner in this case may be entitled to have his caste claim examined. The petitioner himself is shown to have been born at Mayo Hospital, Nagpur on 12.3.1987, in the birth certificate Annexure-II. Petitioner's father is shown to be resident of village Rampura, Tahsil : Lanji, District : Balaghat in Madhya Pradesh. According to the petitioner, his father, shifted to Nagpur in the year 1984 where he is serving as Senior Personal Assistant in MOIL. Since both, village Rampura, Tahsil: Lanji, District : Balaghat as well as city of Nagpur formed part of erstwhile State of C.P. & Berar (Madhya Pradesh) and since caste Kalar is shown to be included in the OBCs of Madhya Pradesh as well as Maharashtra, the petitioner's case is squarely covered by the decision of the Supreme Court in Sudhakar Vitthal."
In the said case, it is further held in para 13 as under:-
"13. ...
"11. Having so held, we are clearly of the opinion that a member of the S. T. notified for the State of Maharashtra who are resident in the State of Gujarat or other State and who might have been S.T.s notified in the erstwhile State of Bombay as and from 1.1.1960, bearing in mind Article 342 of the Constitution of India and Paragraph 2 2-WP 1210-2023.odt 12/21 of the Constitution (Scheduled Tribes) Order, 1956, after 1.1.1960 if they are not resident on that date in the state of Maharashtra, would not be entitled to the benefits for the notified S.T.s in the State of Maharashtra. The same reasoning would also apply to S.C.s."
16. The claim of the petitioner is that he belongs to 'Gond' Scheduled Tribe. He placed on record some documents in support of his contention wherein old age document is of 1946 i.e. Kotwal Panji in respect of his great grandfather Lakha S/o. Sitaram who gave birth to one male child, he is shown as resident of Karwahi, Tah. Ramtek, District Nagpur. The Caste Scrutiny Committee handed over the inquiry to the Vigilance Cell. In an inquiry by the Vigilance Cell, it is revealed that the native place of the applicant is Pendhari, Tah. Barghat, District Shioni (Madhya Pradesh). After appearance before the Committee, the petitioner also placed on record reply/explanation along with the document dated 03/07/1943 wherein it is shown that Lakha gave birth to a child by name Sunnelal, as per Kotwal Panji. It is observed by the Scrutiny Committee that there is 2-WP 1210-2023.odt 13/21 entry of 08/08/1946 that Lakha S/o. Sitaram gave birth to one male child at Karwahi, Tah. Ramtek, District Nagpur. Therefore, the Caste Scrutiny Committee came to the conclusion that there is discrepancy and therefore, the matter was again handed over to the Vigilance Cell for further inquiry. The document was produced by the petitioner in respect of a son Sunnelal Lakha Gond.
17. We have perused the copy of Kotwal Panji dated 08/08/1946. Lakha S/o. Sitaram is shown as 'Gond' and the said Kotwal Panji is issued by the Office of Collectorate, Nagpur. There is extract of Admit Cancell Register (Dakhal Kharij) of school produced by the Vigilance Cell wherein the names of Manobai Sunnelal and Kanhayyalal Sunnelal are shown in school record whose dates of birth are 31/12/1954 and 09/04/1957 respectively. They are shown to be admitted in the school of Pindarai. They are shown as 'Gond'. One more extract of birth register in respect of Manobai is shown the date of birth as 1954 which is at page no. 192 of record. At page 253, there is extract of death register wherein Shrawan 2-WP 1210-2023.odt 14/21 S/o. Mugalya Gond is reported to be dead on 17/07/17. The claim of the petitioner mainly is on the ground that the forefathers of the petitioner are resident of Pendhari, Madhya Pradesh, District Shioni. However, they shifted for their livelihood within the area of C.P. and Berar then existing. If document of Kotwal Panji of 1946 is perused, it is in respect of great grandfather Lakha S/o. Sitaram who gave birth to one male child. The place is shown at Karwahi, Tahsil Ramtek, District Nagpur. When these documents are admitted, it is sufficient to hold that, in 1946, the forefathers of the petitioner were residing in Tahsil Ramtek. Before reorganization, Nagpur and Shioni both were geographical parts of C.P. and Berar. On State re-organization, some portion merged in Maharashtra and some of the portions merged in Madhya Pradesh. However, the caste 'Gond' is recognized in both the States as Scheduled Tribe. So far as entry which was procured by the Vigilance Cell of 1943 showing Lakha Gond gave birth to son Sunnelal in 1943 at Deolapar, Nagpur. There is no reason to say that there is any discrepancy in the entry of 1946 2-WP 1210-2023.odt 15/21 and entry of 1943. Lakha may have given birth to a male child i.e. Sunnilal in 1943 and another male child in 1946. Moreover, the said entry of 1943 is procured by the Vigilance Cell, then remarked under the said entry in paragraph 6 of the order is that, the said copy is not issued by this Office and it is wrong. The said remark is observed to be given by the Head Copying Clerk, Collectorate Office, Nagpur. If that would be the case, it is the Vigilance Cell to explain where from they procured the said entry. It appears that the Caste Scrutiny Committee had not consider the old documents of 1946, 1954 and 1957 those were prior to State reorganization. It relied on the oral statement made by the uncle of the petitioner namely Munnelal Sunnelal Dhurve when the old genuine documents are on record. There is no reason to give weightage to the oral statement as it is given by rustic villager. As the petitioner is resident of old C.P. and Berar and from the document, it appears to be resident of Ramtek Tahsil from 1946, there is no reason to deny him the benefit of belonging to Scheduled Tribe Category. Moreover, 'Gond' is recognized in Madhya 2-WP 1210-2023.odt 16/21 Pradesh as well as Maharashtra as Scheduled Tribe. Even if, it is presumed that, the forefathers of the petitioner are resident of Pendhari, Madhya Pradesh and District Shioni that was the parts of erstwhile C.P. and Berar.
18. This Court in the matter of Hitesh Dasiram Murkute (supra) also discussed the judgment in the case of Bankimchandra V/s. State of Maharashtra reported in 2006 (2) Mh.L.J. 664 as under:-
"In other words, though the Presidential Notification was issued in the year 1950 because of the State Reorganization Act, 1956 and Bombay State Reorganization Act, the benefits would be available to only those persons amongst the notified scheduled tribes who are residents in the localities. In other words, if on 1.1.1960, when the State of Maharashtra came into being, if there was a person belonging to any of the notified Scheduled Tribes in the State of Maharashtra and if he was resident in the localities in the State of Maharashtra only then shall such person will be entitled to the benefits as a member of the Scheduled Tribe in relation to that State provided he was also resident in the erstwhile State of Bombay on the date of the Presidential Notification dated 10.8.1950 and on 1.11.1956 when the new State of Bombay came into being. This would mean 2-WP 1210-2023.odt 17/21 that only those members of the Scheduled Tribes who are included as a notified Scheduled Tribes in the State of Maharashtra and who were and are permanent residents in the State of Maharashtra and in the localities in which they are notified as on 1.1.1960, would be entitled to be treated as S.T. in relation to the State of Maharashtra."
19. In our considered opinion, the migrants may not be entitled to the benefits of reservation in the State of migration but are entitled to the benefits in the State of the ordinary residence on the date of the Presidential Notification as amended from time to time as held in Hitesh Dasiram Murkute (supra).
20. Reorganization of States did not proceed on the basis of castes or tribes but on linguistic basis and therefore, localities of persons entitled to the benefit of reservation got divided in different States. If upon removal of area restrictions, in the entire area of the State as originally existed on the date of notification of Constitution (Scheduled Castes/ Scheduled Tribes) Orders, the persons concerned could avail of the benefits of reservation, there is no reason why they 2-WP 1210-2023.odt 18/21 should be denied such benefits upon reorganization of the States, in which a part of their locality was included.
21. It is held by the Hon'ble Apex Court in the Case of Sudhakar V/s. State that, "if a migrant belonged to a community which was recognised as Scheduled Caste or Scheduled Tribe in any locality which has been divided upon reorganization of States and his caste is recognised as Scheduled Caste/Scheduled Tribe even in such newly formed States, the migrant would be entitled to benefit of reservation even in the State, in which part of the locality other than his place of origin has gone." The said view is also relied upon by this Court in the case of Hitesh Dasiram Murkute (supra).
22. So far as the judgment relied on by the learned AGP in Bir Singh (supra), it is in respect of a person belonging to Scheduled Caste in one State cannot be deemed to be Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. It is held that, in view of Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand 2-WP 1210-2023.odt 19/21 confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. It is held that a person notified as Scheduled Caste in State 'A' cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State 'A'. However, the facts involved in the present matter are different. Here question is of State reorganization and from the documents, the forefathers of the petitioner appears to be not only residing in the geographical area or C.P. and Beara but after reorganization, also they appear to be residing at Ramtek. There may be some origin at Pendhari, District Shioni and even today also, some of the relatives may be residing there that does not preclude the petitioner to claim as 'Gond' Scheduled Tribe.
23. Thus, even if, in this matter, it is held that the relatives were residing at Pendhari, Tah. Barghat, District Shioni (Madhya Pradesh), the fact cannot be denied that they came in Tahsil Ramtek, District Nagpur. There is document 2-WP 1210-2023.odt 20/21 showing their residence of Ramtek in 1946. The 'Gond' tribe is Scheduled Tribe in the then C.P. and Berar and also after bifurcation of the locality in Maharashtra as well as Madhya Pradesh. As such, we see no reason not to validate the claim of the petitioner. The Caste Scrutiny Committee has not taken into consideration this fact and passed unsustainable, erroneous and perverse order, which is liable to be set aside. In the order of termination, the termination is only on the ground that, the caste of the petitioner is invalidated. In view of above discussion, the said order is also liable to be set aside. Accordingly, we proceed to pass the following order:-
ORDER
1) The Writ Petition is allowed.
2) The impugned order dated 12/08/2021 in Case No. lvk/vtizrl/ukx/III/16/31/2018 (Case ID:
6/505/Ser/042018/111757) passed by respondent no. 1/The Scheduled Tribe Certificate Scrutiny Committee, Nagpur, in the matter of the petitioner, is hereby quashed and set aside.
3) It is held and declared that the petitioner has duly established that he belongs to 'Gond' Scheduled Tribe.2-WP 1210-2023.odt 21/21
4) The respondent no. 1/Scrutiny Committee, Nagpur is hereby directed to issue validity certificate of 'Gond' Scheduled Tribe to the petitioner within a period of four weeks from passing of this order.
5) The communication/order of termination dated 23/11/2021 issued by respondent no. 2/employer -
Executive Engineer, Maharashtra State Electricity Transmission Company Ltd. is hereby quashed and set aside.
6) The respondent no. 2/employer is hereby directed to reinstate the petitioner in service to his original post and grant/release all service benefits with continuity of service.
7) Till such validity certificate is received, the petitioner can rely upon the judgment to indicate the direction which has been issued for issuance of such validity certificate.
Rule is absolute in the above terms. No costs. (SMT. M.S. JAWALKAR, J.) (VINAY JOSHI, J.) B.T.Khapekar Signed by: Mr. B.T. Khapekar Designation: PA To Honourable Judge Date: 11/07/2024 14:56:16