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In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & P.B. VARALE, JJ.
Rajendra s/o Ramaji Mahisbadwe
Versus
The Joint Commissioner and Vice Chairman Scheduled Tribe Caste Certificate Scrutiny Committee & Another
Writ Petition No. 5569 of 2012
Decided on : 11-03-2013
A person, not found belonging to either SC or ST in State of Maharashtra, cannot be continued as reserved category person even by Central Government. - As the powers under Article 142 of Constitution, the are not available to the High Court, no protection can be granted by the Court even in cases relating to admissions.
It is important to note here that when Constitution Bench of the Hon’ble Apex Court delivered judgment in the case of State of Maharashtra v. Milind and others, 2001 (1) All MR 573 (SC), it was not required to look into the provisions of the Act No. 23 of 2001, particularly the provisions of Section 10 which mandate cancellation of all benefits including admission, employment, once a certificate is invalidated by the Caste Scrutiny Committee. The issue of protection has been looked into by the Division Bench at Nagpur in the case of Shailesh S/o Krishnarao Kohad v. Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur and others, 2010 (1) Mh LJ 790, to which one of Judge (B.P. Dharmadhikari, J.) is a party. After following the above mentioned Full Bench of the Court, request for protection has been turned down. The perusal of para 25 of said judgment reveal s that the effort made by the counsel for the petitioner Shri Shailesh to urge that the directions issued by the Hon’ble Apex Court were not under Article 142 of the Constitution of India, has been turned down. The Division Bench of the Court very recently in the case of Apurva v. State of Maharashtra, 2013 (1) Mh LJ 139 : 2013 (1) All MR 114, has again reiterated the same position that too in the light of provisions of Section 10 of Act No. 23 of 2001. Mention can also be made to the judgment of Division Bench taking similar view and the judgment in the case of Gauri Shekhar Telvane v. Maharashtra University of Health Sciences, 2012 (6) AIR Bom Reports 750, and in the case of Shweta Kesarinath Shivdikar v. State of Maharashtra and others, 2010 (2) Mh LJ 490 : 2010 (4) All MR 333. In the case of Priyanka Omprakash Panwar v. State of Maharashtra and another, 2009 (4) Mh LJ 847 : 2009 (5) All MR 227, the Division Bench of the Court has again adopted same line. The view expressed by the Court shows that as the reservation is a Constitutional provision, State Government is found not competent to extend any protection by treating persons so recruited as belonging to Special Backward Class. This can be gathered from para 12 of judgment which considers this aspect. The Division Bench in the case of Sunil Ingle v. Zilla Parishad and another, has in para 3 expressly noted that when State does not have power to make legislation violating or abridging the fundamental right, such Government Resolution dated 15.6.1995 is invalid and infirm.
The Scheduled Tribes are recognized in relation to the State and as held in Madhuri Patil v. State of Maharashtra, AIR 1995 SC 94, it is obligation of State to verify whether the certificate procured is genuine or not. Act No. 23 of 2001 in Maharashtra takes care of that duty of State of Maharashtra. The above observations of the Court in relation to 15.6.1995 circular also hold good in respect of the Office Memorandum dated 10.8.2010 though issued by the Government of India. A person not found belonging to either Scheduled Tribe or Scheduled Caste in Maharashtra cannot be continued as reserved category person even by the Central Government.
In Vemareddy Kumaraswamy Reddy v. State of A.P., (2006) 2 SCC 670, the Hon’ble two-Judges have held that a statute is an edict of the Legislature and when words are very clear and there is no obscurity and ambiguity, there is no scope for the Court to innovate or take upon itself the task of amending or altering the statutory provision. The Hon’ble Apex Court has pointed out that there is a very thin line which separates the adjudication from legislation and cautioned that said line should not be crossed.
B.P. Dharmadhikari, J.
By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner seeks to challenge the order of termination dated 03.11.2009, passed by Respondent no.2 – Additional General Manager/Engineering LMD National Aviation Company of India Limited. Though in the petition, order dated 05.10.2012 passed by the Scheduled Tribe Certificate Scrutiny Committee, Nagpur Division, Nagpur, invalidating caste claim of the petitioner as belonging to Halba Scheduled Tribe, has also been questioned, the petitioner has only claimed protection in employment and expressly restricted his challenge only to the order of termination and has given up the status as belonging to Halba Scheduled Tribe. Right to challenge order invalidating caste certificate is given up with knowledge that Respondent Employer as also Caste Scrutiny Committee are opposing the prayer for protection. This protection in service is being claimed on the basis of various judgments, particularly a judgment of the Hon'ble Apex Court in the case of Kavita Solunke .vrs. State of Maharashtra and Ors., reported at 2012 (5) Mh.L.J. 921, and judgments of Division Bench of this Bench dated 04.10.2012 in Writ Petition No. 2162/2012 (Devidas Vitthalral Bhonde vs. Divisional Controller MSRTC, Amravati) as also dated 08.10.2012 in Writ Petition No.4013/2012 (Pramod Krushnarao Bayaskar vs. The Scheduled Tribe Caste Certificate Scrutiny Committee and Ors.), a judgment dated 03.10.2012 in Writ Petition No.402/2012 (Tarachand Fukirchand Ninave .vrs. Joint Commissioner and Vice Chairman and others) is also pressed into service for said purpose.
2. It is in this background, we have heard Shri S.R. Narnaware, learned Counsel for the Petitioner, Shri P.B. Patil, learned Counsel appearing on behalf of Respondent No. 1 Scrutiny Committee and Shri Sridhar K. Chari, learned Counsel appearing on behalf of Respondent No.2 Employer. With their consent, the petition is taken up for final disposal by issuing Rule, making the same returnable forthwith.
3. Shri Narnaware, learned Counsel submits that the basic document namely Caste Certificate issued to the petitioner as belonging to Halba Scheduled Tribe is not found obtained by playing any fraud and hence, is not a false caste certificate. The law as expounded in the case of KavitaSolunke .vrs. State of Maharashtra and others (supra), and various other judgments of this Bench of Bombay High Court, therefore, must be applied and the order of termination must be set aside. He points out that Government of India has issued a notification/ Office Memorandum on 10.08.2010 protecting the services of employees like present petitioner. The said policy decision must be applied in present facts and order of termination must be quashed and set aside.
4. Shri P.B. Patil, learned Counsel appearing on behalf of the respondent no.1 Scrutiny Committee has relied upon the Division Bench judgment of this Court in the case of Sunil Ingle vs. Zilla Parishad and Anr, reported at 2009(2) All MR 867, to submit that similar resolution dated 15.06.1995 issued by the State Government has been found invalid and the Division Bench has held that persons securing employment on the basis of a invalid caste certificate cannot seek protection of their service. He has invited attention to the findings recorded by the Scrutiny Committee in the impugned order to point out how the Vigilance Cell Authorities and the Scrutiny Committee has noted old Koshti documents. He contends that thus certificate obtained by the petitioner is false and fraudulent.
5. Shri S.K. Chari, learned Counsel appearing on behalf of respondent no.2 – Employer submits that in the light of previous petitions filed by the petitioner before the Principal Seat of this Court and at Nagpur, challenge to termination order dated 03.11.2009 is not open and is misconceived. The continuation in service was dependent upon obtaining validity and petitioner has acquiesced
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