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High Court of Judicature at Bombay
A.M. KHANWILKAR & R.M. SAVANT
Vishwanath Pandurang Mahadeshwar & Another
Versus
Caste Certificate Verification Committee & Others
WRIT PETITION NO.4335 OF 2007 WITH CIVIL APPLICATION NO.2263 OF 2007 AND CIVIL APPLICATION NO.1029 OF 2008 AND WRIT PETITION NO.1148 OF 2008 WITH CIVIL APPLICATION NO.858 OF 2008 WITH CIVIL APPLICATION NO.2395 OF 2008
Decided on : 01-10-2010
Insofar as the opinion recorded by the Caste Scrutiny Committee, Court is in agreement with the same. The Committee has analysed the caste claim of the petitioner in conformity with the legal principle enunciated in the case of Madhuri Patil, 2007 All SCR (OCC) 1. The crucial documents are the Birth Certificate of the elder brothers of the petitioner which are dated 3rd August, 1949 and 2nd January, 1948 respectively. The same had greater probative value than the rest of the documents. The said documents would indicate that the caste of the petitioner is "Wani" only. Thus, the claim of the petitioner that he belongs to caste "Vaishyawani" has been rightly rejected by the Committee. Court does not find any manifest error in the opinion so recorded by the Committee.
Maharashtra Scheduled Tribe (Regulation of Issuance and Verification of Certificates) Rules, 2003 - Rule 11.-See Maharashtra Scheduled Castes, Scheduled Tribe, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Insurance and Verification of Caste Certificate) Act, 2000, Section 6.
Constitution of India - Article 16-Reservation-Challenged-Objection as to locus to challenged-Complaint alleging that Pseudo persons getting benefit of OBC reservation and competing with genuine persons belonging to notified OBCs-Entails in depriving opportunity to legitimate persons whose castes already included in list of OBC in Maharashtra-Objection as to locus to challenge communications/resolutions/circulars not sustainable-Rejected.-The objection taken by the petitioner about the locus standi of the respondent No. 5 to challenge the impugned communications and Government Resolutions/Circular cannot be countenanced. At any rate, the respondent No. 5 is justified in challenging the said communications and Government Resolutions/Circular so as to complain that wrong (pseudo) persons were getting benefit of reservation for OBC and were competing with genuine persons belonging to notified OBC, which entails in depriving opportunity to genuine and legitimate persons whose caste has already been included in the list of OBC in Maharashtra. In Court’s opinion, therefore, the objection regarding locus of respondent No. 5 to challenge the impugned communications and Government Resolutions/Circular in question, will have to be stated to be rejected.
Constitution of India - Article 16-Reservation-Other Backward Class-Entry in notified list of OBC-Amendment in-Procedure for-Government Resolution dated 21.8.1996 issued without following due procedure to expand Entry No. 190-Resolution being illegal cannot be sustained.-By this Resolution, which is issued by order in the name of Governor of Maharashtra, for the first time, the State Government expanded the Entry No. 190 by including "Vaishyawani", "Kulwantwani" as OBC along with "Kathar, Katharwani and Kantharwani (except Lingayatwani and Ladwani)". Even this Government Resolution has been issued without following necessary procedure as was required to be followed in view of the dictum of the Apex Court in case of Indra Sawhney’s case, and the subsequent decisions referred to earlier. That position is reinforced from the notings made by the concerned Officials in the original file of the Department produced before us. A priori, even this Resolution will be of no avail and cannot stand the test of judicial scrutiny.
Assuming that this Resolution was to prevail, the Caste "Vaishyawani" and "Kulwanwani" came to be included in original Entry No. 190 for the first time. Notably, caste "wani" does not find place even in this Government Resolution. Further, the benefit of this Entry cannot be given retrospective effect by a Government Resolution. Whereas, the Caste Certificate issued in favour of the petitioner that he belongs to "Vaishyawani" was in anterior point of time. However, for the reasons already recorded by us, this Resolution cannot be sustained as mandatory procedure before introducing any change in the original Government Resolution was not followed by the State Government. That fact is indisputable, as is reinforced from the Official notings made in the original record.
Constitution of India - Articles 16, 341 and 342-Entries in notified list of OBC-Interpretation of-Reservation-Other Backward classes-Entries in notified list of OBC must be read as it is.-The entries in the notified list of OBC must be read as it is. Further, if the State Government intended to add, expand, or alter any of the existing Entry in the List of OBC in the State of Maharashtra, it ought to follow the necessary procedure enunciated by the Apex Court. That in any case, could not have been done by a clarificatory letter sent by the Department. The desired change was possible only by issuing Government Resolutions by order and in the name of Governor of Maharashtra as was done to include Kanthar, Katharwani and Kanthar Wani (excluding Lingayatwani or Ladwani) as belonging to OBC, by incorporating Entry No. 190, vide G.R. Dated 12th October, 1976, in the original Government Resolution dated 13th October, 1967.
Constitution of India - Articles 16, 341 and 342-Reservation-Other Backward Class-Entries in notified list of OBC-Caste "Vaishyawani" -Not included in original list of OBC-Also not included in its amendment done by Entry No. 190 of 12.10.1976-Government Resolution dated 9.8.1995 issued to only continue benefit to validly notified OBC.
Constitution of India - Articles 16, 341 and 342-Reservation-Other Backward Class-Entries in notified list of OBC-Caste ’Wani’, ’Vaishyawani’ and ’Kulwantwani’ neither included nor form part of Entry No. 190 inserted vide Government Resolution of 12.10.1976-Government Circular of 20.6.2008, a clarification and not purports to amend Entry No. 190.-A priori, it is more than clear that even the Government Circular dated 20th June, 2008 will be of no avail and cannot be the basis to assume that the original Entry No. 190 in the Government Resolution dated 13th October, 1967 as amended by Government Resolution dated 12th October, 1976 has been validly amended by the Government Circular under consideration. Besides, as Court is inclined to set aside the Government Resolution dated 21st August, 1996 being illegal, it would necessarily follow that the castes "Vaishyawani" and "Kulwantwani" are not included or from part of Entry No. 190 as inserted vide Government Resolution dated 12th October, 1976. Thus understood, even this Government Circular, which is only clarificatory and does not purport to amend the Entry 190 as inserted vide Government Resolution dated 12th October, 1976, can be no basis to answer the controversy before.
Constitution of India - Articles 16, 341 and 342-Reservation-Other Backward Classes-Entries in notified list of OBC-Change in Entries -State Government intending to amend existing entries, ought to follow procedure enunciated by Apex Court.-It was, therefore, not open either to the Caste Scrutiny Committee or for that matter, the State Government to alter, amend or modify the said Entry unless proper procedure in that behalf was followed. Indeed, it is the prerogative of the State Government to amend or modify or alter the existing Entries in the list of OBC in State of Maharashtra, but that will have to be done in accordance with the procedure enunciated by the Apex Court in the abovesaid decisions.
A.M. KHANWILKAR, J.
1. All these proceedings are disposed of by this common Judgment, as overlapping issues are involved. For the sake of convenience, we would address the parties as per the description given in the cause title of the leading Writ Petition being Writ Petition No.4335 of 2007.
2. The controversy that arises before us is on account of the invalidation of the caste claim of the Petitioner by the Scrutiny Committee. As a result of which, the Petitioner was required to vacate the Office of Municipal Corporator from Ward No.86 of Mumbai Municipal Corporation. The Respondent No.5 (Petitioner in WP/1148/08) who has been impleaded subsequently in the Writ Petition filed by the Petitioner had contested Election of 2007 from Ward No.86 reserved for Other Backward Classes (hereinafter referred to as `OBC’). The Petitioner claims that he belongs to Vaishyawani Caste, which according to him, is notified as OBC. In support of this claim, he relies on the Certificate issued by the Executive Magistrate, Kudal dated 17th May 1993. Whereas, the Respondent No.5 claims that he belongs to Nai Caste which is admittedly notified as OBC. In the said election, the Petitioner was declared to be a returned candidate and the Respondent No.5 as defeated candidate. The Respondent No.5, therefore, filed election dispute on 17th February 2007 before the Small Causes Court in Mumbai being Municipal Election Petition No.147 of 2007. During the pendency of the said election dispute, the caste claim of the Petitioner was scrutinised by the Divisional Caste Scrutiny Committee No.II, Konkan Bhavan. The Caste Scrutiny Committee, after evaluating all the documents pressed into service by the Petitioner, eventually held that the Petitioner was unable to establish the fact that he belongs to “Vaishyawani” Caste; whereas the oldest documents which had probative value would indicate that he belongs to “Wani” Caste. The Committee further opined that “Wani” was not included in the list of OBC notified by the State Government. On this finding, the Caste Scrutiny Committee concluded that the Petitioner does not belong to “Vaishyawani”, OBC. Resultantly, the Caste Certificate issued by the Executive Magistrate, Kudal dated 17th May 1993 was declared as invalid and confiscated.
3. Essentially, against this decision, the Petitioner filed Writ Petition before this Court on 31st May 2007 being Writ Petition No.4335 of 2007. The Petitioner moved for interim relief during the pendency of this Petition which, however, was refused on 31st July 2007, as the Court noted that the Petitioner had already vacated his Office. Thereafter, the Respondent No.2 Municipal Commissioner passed order on 2nd August 2007, stating that the Petitioner has ceased to be Municipal Corporator with effect from 31st July 2007, on which date, the interim protection granted to the Petitioner came to be vacated by this Court. Against the order dated 31st July, 2007 passed by this Court declining to continue interim protection, the Petitioner carried the matter to the Supreme Court by way of SLP (Civil) 13854/2007, which however was dismissed on 20th August 2007.
4. In the meantime, this Court examined the question regarding validity of Section 5-B of the Mumbai Municipal Corporation Act, 1888 along with similar challenge to the amended provisions contained in the Mumbai Provincial Municipal Corporation Act, 1949 as well as Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, Maharashtra Zilla Parishads and Panchayat Samitis Act and Mumbai Village Panchayats Act, 1950 vide Judgment and order dated 20th December 2007 in Writ Petition No.5691 of 2007 and companion cases. By the said decision, it was held that the said amended provisions in the respective enactments were valid and intravires.
5. It is only thereafter, the Respondent No.5 was advised to file Writ Petition before this Court inter alia to assail the letters issued by the Assistant Secretary
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