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2013 Supreme(Bom) 1208
In the High Court of Bombay at Goa
A.P. LAVANDE & U.V. BAKRE, JJ.
Krishna Dhakhu Pilernekar
Versus
Scrutiny Committee for Verification of Caste Certificate, through its Chairman & Others
Writ Petition No. 207 of 2013
Decided On : 04-07-2013
For the Petitioner:Nitin Sardessai, Deep Shirodkar, L. Raghunandan, Advocates.
For the Respondents:R1 to R3, P. Dangui, Addl. Government Advocate, R4, G.R. Usgaonkar, Advocate.
Headnote:Goa State Commission for Backward Classes Act, 1993 - Section 9(1)(2). - Constitution of India, Articles 226 and 227 - Writ Petition - Challenging order dated 8.1.2013 of respondent 1, declaring caste certificate issued by respondent-3 in favour of respondent-4 to be valid - Contention that in view of Addendum dated 1.3.2013 issued by respondent-2 to notification dated 3.3,1997, petitioner not pressing reliefs (a) and (b) sought in petition but only seeking a declaration that notification dated 1.3.2013 is prospective in nature and validity of caste certificate issued by respondent-3 in favour of respondent-4 be valid from 1.3.2013 and respondent-3 not prior thereto - Respondent-2 by Notification dated 1.3.2013 added certain categories to serial No. 3 of Notification dated 3.3.1997 - Notification dated 1.3.2013 to be construed as prospective and not retrospective - Rule is made absolute in terms of prayer clause (bb) to petition - Petition partly allowed.
Goa State Commission for Backward Classes Act, 1993 - Section 9(1) - Caste claim. - OBC Class Certificate, issued in favour of a party would be valid from date of Government Notification and not from date prior to date of passing notification. - The ratio of the judgments relied upon by Mr. Sardessai to which Court has made exhaustive reference hereinabove, is squarely applicable in the present case. The State Government by the notification dated 1.3.2013 has added certain categories to serial No. 3 of the notification dated 3.3.1997. Admittedly, the petitioner did not belong to Kolil Kharvi community in terms of the original notification dated 3.3.1997, but belongs to Christian Saleiro/Saleineiro. Therefore, the notification dated 1.3.2013 has to be construed as prospective and not retrospective.
Insofar as the judgments relied upon by Advocate ’U’ on behalf of respondent No. 4 are concerned, the same do not advance the case of respondent No. 4. Whether the notification is clarificatory or prospective in nature has to be determined having regard to the words used in the notification. Having regard to the plain language of the notification dated 1.3.2013, Court has no hesitation to hold that the said notification is prospective and not clarificatory.
A.P. Lavande, J.
Rule. Rule is made returnable forthwith. Heard by consent of learned Counsel for the parties.
2. By this petition, the petitioner seeks the following reliefs: “(a) Issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction to quash and set aside the Order dated 8.01.2013 passed by the Respondent No.1; (b) Issue a direction to quash and set aside the Caste Certificate dated 11.04.2012 and Caste Validity Certificate in favour of the Respondent No.4 as belonging to OBC;” (bb) to declare that the Notification dated 1.03.2013 is prospective in nature and consequently validity of the Caste Certificate issued by the Respondent No.3 in favour of the Respondent No.4 be valid from the date of the said Notification i.e. 1.03.2013 and not prior to the date of passing of the said above Notification;”
3. Briefly, the case of the petitioner is as under: The petitioner contested the election of Village Panchayat, Merces from Ward No.8 against the seat reserved for the candidates belonging to Other Backward Classes ('OBC' for short). Respondent No.4 also contested the election as a candidate belonging to Kharvi Community, based on the provisional Caste Certificate issued by respondent No.3 vide Certificate dated 11.04.2012. The petitioner was defeated and respondent No.4 was declared elected from the said ward. The certificate issued by respondent No.3 is to the effect that respondent No.4 belongs to Kharvi Community.
4. The petitioner filed a complaint before respondent No.1 to conduct a detailed enquiry and cancel the certificate issued by respondent No.3. Respondent No.1 conducted the enquiry and by Judgment 8th January, 2013, ordered that the caste certificate issued by respondent No.3 in favour of respondent No.4 was verified and was found to be valid.
5. The petitioner filed the present petition, challenging the judgment passed by respondent No.1 on various grounds and initially sought reliefs prayers (a) and (b). The petition was filed on 8th March, 2013.
6. On 1st March, 2013, respondent No.2 issued the following addendum to the notification dated 3rd March, 1997 : “ Addendum 13/37/2011-SW D/11046 Read : Not. No.13/1/97-SWD dated 3-3-1997. At serial No.3 after the words “Koli/Kharvi (including Christian Kharvi)” of Notification referred above, the following shall be added:-“Macchimar/Nustekar/Tisrekar/Kharekar/Byannis (including Christian Peixeira, /Futanikar/Jalkar/Pagui (including Christian Pascadors) Tari/Tarukar/Hodekar (including Christian Maritino or Marinheiro), Agri (inc luding Christian Saleiro/Saleineiro)”.
By order and in the name of the Governor of Goa.
V.M. Paranjape, Director & ex officio Joint Secretary (Social Welfare).
Panaji, 1st March, 2013.”
Thereafter, the petitioner sought amendment of the petition and also sought prayer
(bb).
7. It is the case of the petitioner that the provisional certificate dated 11th April, 2012 was obtained by respondent No.4 by misrepresentation and at the time of issuance of the said certificate, respondent No.4 did not belong to Kharvi Community and as such he was not OBC and accordingly, could not have contested the election to Ward No.8 which was reserved for OBC category.
8. Respondent No.4 has filed an affidavit-in-reply, opposing the petition on various grounds. It is the case of respondent No.4 that the Notification dated 1st March, 2013 is only clarificatory in nature, and, as such, cannot be held to be prospective, as contended by the petitioner. Respondent No.4 has also supported the judgment and order passed by respondent No.1, on merits. Respondent No.4 has also relied upon the advice tendered to the Government in exercise of powers under Section 9(1) of the Goa State Commission for Backward Classes Act, 1993 (“the Act” for short), to carry out correction/explanation/rectification to the entry No.3 of Notification dated 3rd March, 1997, as follows :
“a) At entry No.3 of th
