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IN THE HIGH COURT OF BOMBAY
BANKIMCHANDRA MAKANBHAI PATEL
VERSUS
STATE OF MAHARASHTRA
Decided no: NOVEMBER 23, 2005
Held, that 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 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. 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.Ts. 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 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.Ts. in the State of Maharashtra. The same reasoning would also apply to SCs. In these circumstances, the petitioner would be entitled to have the benefits in the State of Gujarat and not in the State of Maharashtra. The petitioner however, is a student who took benefit and was admitted to the Engineering Course and has completed his B.E. degree from University of Mumbai in the year 2004. Considering the Judgment of the Apex Court in the case of Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development and others, 1999 SCC (L&S) 1349 it will not be possible to cancel the degree already obtained. As the caste certificate was not based on fraud petitioner would not be entitled to benefit of reservation based on fraud petitioner would not be entitled to benefit of reservation based on the degree obtained by him, in the State of Maharashtra. Therefore, migrant to Maharashtra will not be entitled to the benefits even if such migrant has the same nomenclature as notified in the State of migration for the benefits in the State of migration. They would be entitled to benefits only in the state where they were resident at the time of the State Reorganization Act and Bombay State Reorganization Act or a like Act. (1994) 5 SCC 244, Rel. W.P. No. 4897 dated 14.10.2004 and W.P. No. 2736 of 1998 dated 18.6.1998 held to be per curiam.
F. I. REBELLO, J.
( 1 ) RULE. Heard forthwith.
( 2 ) THE petitioner claims to belong to Dhodia tribe which is recognized as a scheduled tribe pursuant to issuance of the Presidential Notification under Article 342 (1) of the Constitution of India both in the State of Gujarat as also in the State of Maharashtra. The petitioners father was born on 2-6-1953 at village Pitha, taluka Chikhali, District Valsad now in State of Gujarat. The petitioners father was employed with the Western Railway since 23-1-1976. The petitioner was born on 15-8-1979 at village Pitha, Valsad in the State of Gujarat. Petitioners and his fathers caste is shown as "hindu Dhodia". It is the case of the petitioner that he was granted certificate of domicile on 4-2-1997 by the Additional Chief metropolitan Magistrate, 24th Court, Borivali, Mumbai setting out that the petitioner is a domicile of State of Maharashtra. The petitioner sought admission to the Engineering degree course and as such he moved respondent No. 2 which is the Tribe scrutiny committee for validating his tribe certificate. The committee, however, was pleased to invalidate the certificate holding that the petitioner is a migrant from the State of Gujarat to the State of Maharashtra and therefore, not entitled to the benefits in the State of Maharashtra. The petitioner challenged the order before this Court in Writ Petition No. 4897 of 1997. The petition was admitted and interim relief was granted. Consequent thereupon the petitioner completed the B. E. degree course from the University of Mumbai in the year 2004. The Writ petition came up for hearing and was disposed of by order dated 14-10-2004. It is the contention of the petitioner that the learned division Bench was pleased to hold that for deciding the issue as to whether the petitioner is migrant from the State of Gujarat to the State of Maharashtra, what is relevant is the date of notification of the Presidential Order under which the petitioner claims to belong to such caste/tribe. In view of that, the order dated 25-8-1997 was set aside and the second respondent committee was directed to consider the caste claim of the petitioner on merits, without raising objection that the petitioners family has migrated from Gujarat. The respondent No. 2 committee was directed to consider the caste claim within the period of six months from 14-10-2004. 3-4. Petitioner appeared before the committee at Pune. The proceedings however, were transferred to the committee at Thane by Order dated 8-11-2004. The Vigilance Officer of the Committee gave his report setting out that the petitioner was a migrant from the State of Gujarat to the State of Maharashtra. Based on the report, show cause notice was issued to the petitioner to file his reply. Show cause notice proceeded on the footing that the petitioner should submit proof of residence of his family prior to 1950 in the State of Maharashtra. The petitioner has filed his reply and it is the case of the petitioner that he drew the attention of the committee to the order of this Court whilst remitting the matter back to the committee. In spite of that the committee held that the petitioner is a migrant from the State of Gujarat and is not entitled to avail of the benefits of scheduled tribe in the State of Maharashtra by its order dated 21-5-2005 which was communicated to the petitioner by endorsement dated 4-7-2005 and received by the petitioner on 11-7-2005. It is this order which is the subject matter of the present petition. 5. The principal contention as urged on behalf of the petitioner by the learned counsel is that after this Court in Writ Petition No. 4897 of 1997 by its judgment dated 14-10-2004 had remanded the matter back to the committee to consider the case of the petitioner on merits without raising the objection that the petitioners family is migrant from Valsad, the Committee acted without jurisdiction and clearly in violation of the order of this Court when it considered that i
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