Bombay High Court
Smt Surayya Shaheen Gous Mohiuddin vs The State Of Maharashtra & Others on 18 December, 2009
Bench: S.B. Deshmukh, Shrihari P. Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 17 OF 2008
Smt Surayya Shaheen Gous Mohiuddin ...Petitioner
VERSUS
The State of Maharashtra & others
ig ...Respondents
.....
Shri A.S.Golegaonkar, advocate and Shri R.J.Godbole, advocate,
for the petitioner
Smt. V.A.Shinde, A.G.P.for respondent nos. 1, 3 and 5.
Shri U.S.Malte, advocate for respondent no.2
Smt. Manjusha Deshpande, advocate for respondent no.4
.....
CORAM : S.B.DESHMUKH
AND
SHRIHARI P.DAVARE, JJ.
DATE OF RESERVING
THE JUDGMENT : 16.12.2009
DATE OF PRONOUNCING
THE JUDGMENT : 18.12.2009
J U D G M E N T :(Per Shrihari P. Davare, J.) 1 Rule. Rule is made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing.
::: Downloaded on - 09/06/2013 15:26:56 ::: 22 The petitioner has filed present petition under Article 226 of the Constitution of India challenging the order dated 29.11.2007 passed by respondent no.2- Scheduled Tribe Caste Certificate Verification Committee, invalidating the social status claim of the petitioner as Tadvi Scheduled Tribe.
3 Respondent no.1 herein is the State of Maharashtra through the Secretary, Tribal Development Department, Mantralaya, Mumbai - 32; respondent no.2 herein is the Scheduled Tribe Caste Certificate Verification Committee represented through its Chairman/Director, Aurangabad Division, Aurangabad; whereas respondent no.3 is the Taluka Executive Magistrate, Tahsil Office, Aurangabad. Respondent no.4 is the Municipal Corporation, Aurangabad through the Municipal Commissioner; whereas respondent no. 5 is the Deputy Superintendent of Police of Vigilance Cell attached to respondent no.2.
4 It is the contention of the petitioner that respondent no.
3 issued caste certificate in favour of the petitioner on 31.8.1989 declaring that the petitioner herein belongs to Tadvi Scheduled Tribe at Sr. No. 13. A copy of the said certificate is annexed at ::: Downloaded on - 09/06/2013 15:26:56 ::: 3 Exh. 'A' (page 27). Thereafter the petitioner came to be selected as Clerk in the office of respondent no.4 on 10.10.1990 against the post reserved for Scheduled Tribe category and copy of the said order dated 10.10.1990 is annexed at Exh. 'F' (page 32).
Thereafter the petitioner's caste certificate was sent to respondent no.2 committee for verification purpose, but the social status claim of the petitioner as Tadvi Scheduled Tribe was rejected by respondent no.2 committee by ex-parte order on 27.3.1996.
5 Being aggrieved and dissatisfied by the said order dated 27.3.1996 by respondent no.2 committee, the petitioner herein preferred Writ Petition No. 2490 of 1996 before this court, copy of which is annexed at Exh. 'G" (page 34) and this court passed an order on 1.4.2005 in the said writ petition and thereby quashed and set aside the order dated 27.3.1996 passed by respondent no.2 committee and remanded back the matter to respondent no.2 committee with directions to respondent no.2 to take the decision on merits and in accordance with law afresh as expeditiously as possible within a period of four months from the date of the said order and simultaneously the petitioner was directed to remain present before respondent no.2 committee on 19.4.2005 to enable respondent no.2 committee to fix up the ::: Downloaded on - 09/06/2013 15:26:56 ::: 4 schedule of hearing.
6 However, it is the contention of the petitioner that thereafter respondent no.2 committee passed the order on 19.8.2005 and again invalidated social status claim of the petitioner as Tadvi Scheduled Tribe without serving the copy of the Vigilance Cell report upon the petitioner and without conducting petitioner's interview. The petitioner submitted that even the said order dated 19.8.2005 was passed by respondent no.2 committee ex-parte. Copy of the said order dated 19.8.2005 is produced at Exh. 'H' (page 38).
7 Being aggrieved by the said order dated 19.8.2005, the petitioner preferred Writ Petition No. 7352 of 2005 before this court and challenging the order dated 19.8.2005 passed by respondent no.2 committee and again this court passed an order on 8.10.2007 in the said petition and quashed and set aside the order dated 19.8.2005 passed by respondent no.2 committee invalidating the caste claim of the petitioner and again remanded the matter back to respondent no.2 committee with directions to respondent no.2 committee to decide the matter of caste claim of the petitioner by 30.11.2007 strictly in accordance with law and merits and simultaneously directed the petitioner to appear ::: Downloaded on - 09/06/2013 15:26:56 ::: 5 before respondent no.2 committee on 15.10.2007 and respondent no.2 committee was directed to serve the copy of the Vigilance Cell report to the petitioner on that day itself and opportunity was given to the petitioner to file reply thereto within 15 days and further directed to fix up the date on 31.10.2007 and the petitioner was directed to remain present before respondent no.2 committee on the said date and copy of the said order is annexed at Exh. 'I' (page 46).
8 Thereafter respondent no.2 committee conducted the hearing on 30.10.2007 and decided the social status claim of the petitioner as Tadvi Scheduled Tribe by order dated 29.11.2007 and thereby negatived the claim of the petitioner as Tadvi Scheduled Tribe and invalidated the said social status claim of the petitioner and the said order has been impugned by the petitioner in the present petition.
9 Learned counsel for the petitioner canvassed that on the date of hearing I.e. 30.10.2007, the petitioner appeared before respondent no.2 committee and submitted a set of six documents, which include three important documents I.e. (1) Date of Birth and bona fide certificate of father of the petitioner, namely Shri Gl. Gouse Mohiuddin s/o Gl. Mohiuddin. The said ::: Downloaded on - 09/06/2013 15:26:56 ::: 6 certificate was issued by Head Master, Zilla Parishad, Multipurpose High School, Aurangabad. It shows that as per School General Admission Register, there is entry of tribe as, 'Tadvi' and the said entry was taken at the time of admission, which was given in the year 1337-38 Fasli I.e. 1927 A.D., which is the oldest document on record; (2) School Leaving Certificate, issued by the Head Master, Zilla Parishad, Multipurpose High School, Aurangabad in favour of the father of the petitioner, which shows entry of tribe as Tadvi; and (3) School record of the petitioner's brother, namely Shaikh Saleem Ahmed Ghous Moinuddin, which shows entry of tribe as Tadvi. However, it is the grievance of the petitioner that the entire set of documentary evidence was rejected by respondent no.2 committee on the flimsy grounds.
10 It is also argued that the impugned order dated 29.11.2007 passed by respondent no.2 committee is not reasoned order and same is not in accordance with law.
11 Learned counsel for the petitioner further canvassed that the Vigilance Cell, who conducted the inquiry under the directions of respondent no.2 committee was not headed by the Senior Deputy Superintendent of Police and all the members of ::: Downloaded on - 09/06/2013 15:26:56 ::: 7 the said Vigilance Cell did not conduct the inquiry in respect of social status claim of the petitioner herein and the inquiry was conducted by the constable, and therefore, the said inquiry is vitiated and the impugned order passed by respondent no.2 committee on 29.11.2007 basing upon the Vigilance Cell report, is illegal and same is required to be quashed and set aside.
12 Learned counsel
ig Shri Malte for respondent no.2
opposed and countered the present petition vehemently and at the out set submitted that the burden of proof to prove the social status claim of the petitioner as Tadvi Scheduled Tribe was upon the petitioner, but the petitioner has miserably failed to prove the said claim before respondent no.2 committee. It is also submitted by the counsel for respondent no.2 committee that the Vigilance Cell report was served upon the petitioner and she was given full opportunity to reply the same and to put forth her claim before respondent no.2 committee and thereafter respondent no.2 committee passed the impugned order dated 29.11.2007 and hence there is no lacuna in the impugned order passed by respondent no.2 committee. According to the learned counsel for respondent no.2 committee, the impugned order is a reasoned order and claim of the petitioner has not been rejected on the flimsy grounds as alleged.
::: Downloaded on - 09/06/2013 15:26:56 ::: 813 As regards grievance of the petitioner that Vigilance Cell was not headed by the Senior Deputy Superintendent of Police as per Rule 10 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 and Maharashtra Scheduled Tribe (Regulation of Issuance and Verification of) Certificate Rules, 2003 (hereinafter referred to as, "the Rules of 2003"). Learned counsel for respondent no.2 committee submitted that the said submission bears no substance. It is further submitted by the counsel for respondent no.2 committee that the inquiry was conducted by the Police Inspector and not by constable as alleged by the petitioner and it is further submitted that all the four members of the Vigilance Cell are in no way expected to visit the claimant and make inquiry and grievance of the petitioner in that respect also bears no substance.
14 In the said context, learned counsel for respondent no.2 relied upon the judgment of this court delivered by Single Judge at Nagpur in the case of Chhaya Namdeorao Binekar vs State of Maharashtra and others, reported at 2003 (1) Bom.C.R. 689.
::: Downloaded on - 09/06/2013 15:26:56 ::: 915 We have perused the contents of the present petition, its annexures, original file of the petitioner maintained by respondent no.2 committee in respect of social status claim of the petitioner and the impugned order passed by respondent no.2 committee on 29.11.2007 and also considered the submissions advanced by learned counsel for the parties anxiously and at the out set it is seen that respondent no.2 committee has referred and considered the six documents produced by the petitioner in respect of her social status claim in the said order and it is further seen that respondent no.2 committee has also given reasons for rejecting the social status claim of the petitioner as Tadvi Scheduled Tribe by the said documents and hence there is no substance in the grievance made by the petitioner in that respect.
16 As regards the submission of the petitioner that the date of birth and bona fide certificate of the petitioner's father produced at Exh. 'D', which discloses the caste Muslim Tadvi, wherein it is allegedly mentioned that the petitioner's father was bona fide student in the said school I.e. Zilla Parishad, Multipurpose High School, Aurangabad in Class 1 in 1337-38 Fasli I.e. 1927 A.D., the counsel for respondent no.2 committee pointed out that said certificate was issued on 14.1.1991 and ::: Downloaded on - 09/06/2013 15:26:56 ::: 10 hence, it cannot be considered as conclusive proof prior to Presidential Order, 1950.
17 In the said context, we perused the original file in respect of social status claim of the petitioner maintained by respondent no.2 committee and found a certified copy of the admission register issued by the Head Master, Multipurpose High School, Aurangabad, apparently collected by the Vigilance Cell during the course of inquiry, wherein there does not appear to be any column of the caste and there appears to be an endorsement in front of the name of the father of the petitioner namely, Gl.
Gouse Mohiuddin Gl. Mohiuddin at Sr. No. 50/393 that TC No. 201 of 1973 was issued on 28.11.1994 and writing "Tadvi Muslim"
appears to be written thereupon. The said writing "Tadvi Muslim"
appears to have been written in the column of remarks, that too on 28.11.1994, and not of prior to presidential order, which clinches the issue in controversy and sustains fatal blow to the case of the petitioner herein.
18 As regards the grievance of the petitioner that all the members of the Vigilance Cell did not visit the petitioner and did not make inquiry in respect of social status claim of the petitioner, learned counsel for the petitioner was unable to point out any provision that all the four members of the Vigilance Cell ::: Downloaded on - 09/06/2013 15:26:56 ::: 11 were expected to visit the claimant/petitioner and to make inquiry in respect of the social status claim of the petitioner, and hence, there is no substance in the said grievance made by the learned counsel for the petitioner.
19 Besides that, it is not in dispute that the Vigilance Cell report was given to the petitioner and full opportunity was given to the petitioner to file her reply thereto, as well as personal hearing was given to the petitioner by respondent no.2 committed and thereafter respondent no.2 committee has passed the impugned order on 29.11.2007 and on careful perusal of the said order, we are of the considered view that respondent no. 2 committee has dealt with the documents produced by the petitioner in support of her social status claim aptly and rejected the said documents as the proof to establish her social status claim as Tadvi Scheduled Tribe and it also appears that respondent no. 2 committee has passed the reasoned order and invalidated the social status claim of the petitioner as Tadvi Scheduled Tribe rightly, and therefore, no interference therein is warranted under the extra ordinary jurisdiction of Article 226 of the Constitution of India.
20 In the result, present petition bears no substance and ::: Downloaded on - 09/06/2013 15:26:56 ::: 12 same is devoid of any merits, and therefore, same stands dismissed. Rule is discharged accordingly. In the facts and circumstances of the case, there shall be no order as to costs.
(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)
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