Writ Petition Nos. 5297 with 3890, 4363 of 2013. Case: Arun s/o Vishwanath Sonone Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Writ Petition Nos. 5297 with 3890, 4363 of 2013 |
| Counsel | For Petitioner: Anil Mardikar, Senior Advocate, assisted by Narayan Phadnis, and Rajeev Madkholkar, Ram Parsodkar, S. R. Narnaware and V. G. Wankhede, Advs. and For Respondents: Smt. Bharti Dangre, Government Pleader for State and Caste Scrutiny Committee. Rohit Deo, Assistant Solicitor General for Union of India. R.E. Moharir, Advs. |
| Judges | Mohit S. Shah , C.J. and Smt. Vasanti A. Naik , J. and R. K. Deshpande, J. |
| Issue | 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 (23 of 2001) - Sections 7, 10, 6, 11; Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of Certificate) ... |
| Citation | AIR 2015 BOM 123 |
| Judgement Date | December 22, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
R. K. Deshpande, J.
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All these matters are placed before this Full Bench by a common order of reference dated 1-10-2013 passed by the Division Bench of this Court (Smt. Vasanti A. Naik and Shri A. S. Chan-durkar, JJ.) to consider and decide the following questions:
1. Whether the relief of protection of service after invalidation of the caste claim can be granted by the High Court on the basis of the judgment of the Hon'ble Supreme Court in Kavita Solunke v. State of Maharashtra and others 2012 (8) SCC 430: (AIR 2012 SC 3016).
2. If the answer to question No.1 is in the affirmative, can such relief of protection of service be granted by the High Court in a case where the same relief has been earlier refused by the High Court?
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The reason for framing question No.1 is that there is conflict of views taken by the different Division Benches of this Court upon consideration of the decision of the Apex Court in the case of Kavita Solunke v. State of Maharashtra and others, reported in (2012) 8 SCC 430: (AIR 2012 SC 3016). One line of the decisions taking the view that the protection in service granted in Kavita Solunke's case is an exercise of jurisdiction under Article 142 of the Constitution of India and other line of the decisions holding that it is a law declared by the Apex Court under Article 141 of the Constitution of India, which is binding.
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So far as the question No. 2, which falls for consideration of the Full Bench, is concerned, it does not arise out of any conflict between the views taken by the Division Benches of this Court, but the referring Bench thought it fit to refer the said question for decision by the Larger Bench, because it found that repeatedly the matters are coming before the Division Bench of this Court, wherein the relief of protection of service has been claimed in spite of the fact that the petitions claiming the same reliefs were already rejected or that no such relief was claimed, though the petitions were filed challenging the order of the Scrutiny Committee, which were rejected. The question of bar of res judicata, including that of constructive res judicata, therefore, falls for consideration.
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Heard Shri Anil Mardikar, the learned Senior Advocate, assisted by Shri Narayan Phadnis, Advocate; Shri Rajeev Madkholkar, Shri Ram Parsodkar, Shri S.R. Narnaware, and Shri V.G. Wankhede, the learned counsels appearing for the petitioners in all these petitions; Smt. Bharti Dangre, the learned Government Pleader for the State and the Caste Scrutiny Committee; Shri Rohit Deo, the learned Assistant Solicitor General for Union of India, and Shri R.E. Moharir, the learned counsel for the respondent No.2 in Writ Petition No.3890 of 2013. In order to curtail the volume of this judgment, the rival contentions are not reproduced in this judgment, but we must appreciate the assistance provided by all the learned counsels and this judgment is the outcome of it and we believe that the answers to the rival contentions shall find place in it.
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To trace out the history of litigation, the State Government found in the year 1980 that the concessions and benefits in various forms made available to the persons belonging to Scheduled Tribe category, including those of admissions in educational institutions and reservations in Government service were largely being availed by the persons, who do not really belong to Scheduled Tribe category by producing false Caste Certificates and such percentage was found as high as 60 per cent. Hence, a Committee was constituted by the Government Resolution dated 29-10-1980 to enquire into the procedure for issuance of Caste Certificates, which laid down the revised instructions and prescribed the authorities for issuance of Caste Certificates. By the same resolution, the Divisional Commissioner was empowered to enquire into the appeals in respect of the complaints and allegations about issuance of Caste Certificates to the persons, who do not belong to Scheduled Tribes, and the detailed procedure was als.o prescribed for dealing with such appeals.
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As a result of the aforesaid exercise, the controversies started surfacing in respect of spurious claims to grab the benefits and concessions for Scheduled Tribe category. The controversy in one such appeal decided by the authorities in respect of a claim for 'Mahadeo Koli', a Scheduled Tribe, which is an Entry 29 in the Constitutional (Scheduled Tribes) Order, 1950 in relation to the State of Maha-rashtra, went up to the Apex Court, which was decided on 2-9-1994; Kum. Madhuri Patil and another v. Additional Commissioner, Tribal Development, reported in AIR 1995 SC 94. The Apex Court found that the appellants, who were the candidates belonged to the Other Backward Class category of 'Hindu Koli', claimed the benefits of the admission in M.B.B.S. Course, meant for Scheduled Tribe category as the members of a subcaste of 'Mahadeo Koli', a Scheduled Tribe. The Apex Court observed that the spurious tribes have become a threat to the tribals, who are defrauding the true Scheduled Tribes to their detriment and deprivation snatching away their benefits. In para 12 of the said decision, the Apex Court observed that the admissions wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The Apex Court found that ineligible or spurious persons who falsely gained entry resorted to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude.
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In the said decision in Madhuri Patil's case, the Apex Court thought it fit to streamline the procedure for issuance of social status certificates, their scrutiny and approval. The direction was issued to all the State Governments to constitute a Committee of three officers for verification and issuance of social status certificates and upon the finding being recorded that the claim is not genuine or doubtful or spurious or false or wrong claim, to cancel the admission/appointment so obtained by following the procedure prescribed therein. The guideline Nos.10, 14 and 15 laid down by the Apex Court being relevant, are reproduced below:
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or nonofficial and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or the Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post.
In response to the aforesaid decision of the Apex Court, the State of Maharashtra by its resolution dated 7-3-1996, prescribed revised procedure for issuance of Caste Certificates to the candidates claiming the benefits, which are made available for the backward class category of Scheduled Tribe. The preamble of the said Government Resolution itself makes it clear that pursuant to the decision of the Apex Court in Madhuri Patil's case, the authorities are being prescribed and the procedure for issuance of Caste Certificates has also been laid down.
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Then came the decision of the Apex Court in the case of State of Maharashtra v. Milind and others, reported in (2001) 1 SCC 4: (AIR 2001 SC 393), by the Constitution Bench on 28-11-2000. The Division Bench of this Court had ruled that 'Halba Koshti' is a sub-division of the main tribe 'Halba'/'Halbi' as per Entry No.19 in the Scheduled Tribes Order applicable to the State of Maharashtra. This Court had held that it was permissible to make an enquiry as to whether 'Halba Koshti' is a subdivision or a part and parcel of the main tribe of 'Halba'/'Halbi' as per Entry No.19 in the Scheduled Tribes Order. The decision of this Court was based upon the decisions of the Division Benches of the Apex Court rendered in Bhaiya Ram Munda v. Anirudh Patar and others, reported in (1971) 4 SCR 804: (AIR 1971 SC 2533), and Dina v. Narayan Singh, reported in (1968) 38 ELR 212. The Apex Court has held in para 26 that no enquiry at all is permissible and no evidence can be let in to find out and decide that if any tribe or tribal community or part of or group within any tribe or tribal community is included within the scope and meaning of the...
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