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2008 DIGILAW 1631 (BOM)

NARAYAN SHANKAR SOLANKI v. STATE OF MAHARASHTRA

2008-11-20

K.J.ROHEE, PRASANNA B.VARALE

body2008
JUDGMENT: PRASANNA B.V. ARALE, J.:- Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. Shri J. B. Jaiswal, learned. Assistant Government Pleader waives notice on behalf of the respondent Nos. 1 and 2 and Smt. I.L. Bodade, the learned Counsel waives notice on behalf of the respondent Nos. 3 and 4. 2. Being aggrieved by the order passed by the Divisional Caste Scrutiny Committee, Amravati Division, Amravati i.e. the respondent No.2 the petitioner has approached this Court by the present writ petition. 3. The short question that falls for our consideration is whether the Committee is justified in invalidating the caste claim of the petitioner belonging to Rajput-Bhamta (VJ) under the order dated 22-6-2006. 4. Shri A. A. Naik, the learned Counsel appearing on behalf of the petitioner submits that the petitioner was appointed as a Shikshan Sevak in Primary School at Dulara in Ramtek Panchayat Samiti and the appointment of the petitioner was against the post reserved for Nomadic Tribe. As the appointment of the petitioner was against the reserved post, the Education Officer (Primary), Zilla Parishad, Nagpur-respondent No.3 referred the caste claim of the petitioner claiming that he is belonging to Rajput-Bhamta Tribe, to the respondent NO.2-Divisional Caste Scrutiny Committee (hereinafter referred to as the Committee for the sake of brevity). The Committee, by an order dated 23-112004, invalidated the caste claim of the petitioner. The order of the Committee was challenged by the petitioner before this Court in Writ Petition No. 4111/2005. This Court in order dated 16-11-2004 has observed that, "only point urged in support of the petition is that the conclusion reached by the Committee is vitiated in view of the fact that the Research Officer had not associated with the Vigilance Cell in the enquiry for finding out the social status of the petitioner. This lacuna was admitted by Mr. Doifode, learned AGP. In view of the fact that it is necessary that the Research Officer/Tribal Development Officer/Social Welfare Officer has to be associated with an enquiry as held by Supreme Court in AIR 1997(2) SC 2581 and as followed by this Court in a decision of learned Single Judge in Writ Petition No. 2923 of 2005 decided on 19-6-2001, we are of the view that the impugned order deserves to be set aside on this count alone. The matter is remanded back to the Scrutiny Committee for fresh decision in accordance with law after associating Research Officer. The Committee shall decide the matter on merits without being influenced by any of the observations made above. Rule is made absolute in the aforesaid terms." 5. By the said order, this Court has remanded the matter back to the Scrutiny Committee for fresh decision by setting aside the order of the Committee. The learned Advocate for the petitioner submitted that in view of the order passed by this Court in Writ Petition No. 4111/2005, it was expected that the Committee will decide the claim of the petitioner afresh, but the Committee by an order dated 22-6-2006 has invalidated the claim of the petitioner without considering the claim afresh. The learned Advocate for the petitioner further submitted that the reasons assigned by the Committee for rejection/invalidation of the caste claim of the petitioner are totally contrary to the decision of this Court in Writ Petition No. 4111/2005. The learned Advocate for the petitioner submitted that instead of considering the claim afresh and without following the order of this Court to take fresh decision in accordance with law after associating Research Officer, the Committee has reiterated its earlier order. 6. Shri J.B. Jaiswal, the learned Assistant Government Pleader appearing on behalf of the respondent Nos. 1 and 2 tried to support the impugned order passed by the Committee by placing reliance on the affidavit-in-reply filed on behalf of the respondent No.2. 7. The undisputed facts emerge as follows: That the petitioner in the first round of litigation, has approached this Court by filing Writ Petition No. 4111/2005. The petitioner being aggrieved by invalidation of the caste claim belonging to Rajput-Bhamta challenged the order of the said invalidation. It seems that the petitioner has submitted certain documents for substantiating his caste claim and the Scrutiny Committee has also conducted the enquiry through the Vigilance Cell. While considering the Writ Petition No. 4111/2005, this Court has observed that, "the only point urged in support of the petition is that the conclusion reached by the Committee is vitiated in view of the fact that the Research Officer had not associated with the Vigilance Cell in the enquiry for finding out the social status of the petitioner. This lacuna was admitted by Mr. Doifode, learned AGP. This lacuna was admitted by Mr. Doifode, learned AGP. In view of the fact that it is necessary that the Research Officer/tribal Development Officer/Social Welfare Officer has to be associated with an enquiry as held by Supreme Court in AIR 1997(2) SC 2581 and as followed by this Court in a decision of learned Single Judge in Writ Petition No. 2923 of 2005 decided on 19-6-2001, we are of the view that the impugned order deserves to be set aside on this count alone. The matter is remanded back to the Scrutiny Committee' for fresh decision in accordance with law after associating Research Officer. The Committee shall decide the matter on merits without being influenced by any of the observations made above. Rule is made absolute in the aforesaid terms." The Committee by an order dated 16-11-2005 was directed to consider the matter afresh in accordance with law after associating Research Officer. We find that the Committee which was directed by the Court to decide the matter afresh has decided the caste claim of the petitioner by an order dated 22-6-2006. The Committee has observed that after receipt of the order of this Court, the Committee has given sufficient time and natural justice to the petitioner to produce the additional conclusive documentary evidences of his forefathers showing their caste as Rajput-Bhamta V. J. prior to 1961, but he failed to produce the same. The Committee further observed, that, "in regards to the association of the Research Officer with the Vigilance Cell in the enquiry for finding out the social status of the petitioner, it is pointed out that the Hon'ble High Court Nagpur has given a judgment on 2nd July, 2002 in Writ Petition No. 3524/2001 in respect of Sau. Ramatai Madhukarrao Tapre in which it has been observed by the Hon'ble High Court that the Research Officer is not required to conduct the field investigation along with police officer. However, he is only required to look into the documents and evidence collected by the police vigilance cell. Ramatai Madhukarrao Tapre in which it has been observed by the Hon'ble High Court that the Research Officer is not required to conduct the field investigation along with police officer. However, he is only required to look into the documents and evidence collected by the police vigilance cell. The order of the Committee, dated 24-6-2005 rejecting the caste claim of the petitioner as "Rajput Bhamta" V.J. in want of conclusive documentary evidences of his forefathers showing their caste as "Rajput Bhamta" prior to 1961, cannot be faulted merely on the grounds that the Research Officer was not associated with the vigilance cell in the enquiry for finding out the social status of the petitioner."As such, in the result the Committee has invalidated the caste claim of the petitioner. The said decision of 22-6-2006 is challenged by the present petition and as such this is the second round of litigation of the petitioner. The learned Advocate for the petitioner has submitted that the Committee has shown patent disregard to the order passed by this Court. 8. After giving anxious consideration to the contentions raised by the rival parties, we find that while deciding the caste claim of the petitioner, the Committee has given a go-bye to an important factor i.e. it was necessary for deciding the caste claim that the Research Officer/Tribal Development Officer/Social Welfare Officer ought to have been associated with an enquiry as held by the Apex Court in AIR 1997(2) SC 2581. It was submitted by the learned Advocate for the petitioner that on that sole ground the order of the Committee needs to be quashed and set aside. 9. We find that there is considerable force in the submissions of the learned Advocate for the petitioner. We further find that firstly the Committee though has stated that the Committee has given time and natural justice to the petitioner to produce the additional conclusive documentary evidence of his forefathers showing their caste as "Rajput Bhamta" V.J. prior to 1961 but he failed to produce the same, there is no record produced by the Committee to show that on which dates the petitioner was offered personal hearing or on which date the petitioner was given notice to produce the documentary evidence. In the absence of such details, it is difficult to believe the vague statement of the Committee that the Committee has given sufficient time and opportunity to the petitioner to produce the documentary evidence. On the contrary, the petitioner has submitted certain documents which were already with the Committee such as the transfer certificate of the petitioner from the primary school, Kolara, the primary school certificates of the grandfather of the petitioner, the caste validity certificate issued in favour of relative of the petitioner, namely, Vishnu Shalikrao Ingle. The record also shows that the Vigilance Cell has conducted an enquiry. The Committee has not given any finding on the documents which are submitted by the petitioner and as such the invalidation of the caste claim of the petitioner on this ground is not justified. 10. We are surprised to see that the Committee is not only adamant in its approach, but has shown total disregard to the order passed by this Court in Writ Petition No. 4111/05. It is not in dispute that this Court, by an order dated 16-112005, has observed that the conclusion arrived at by the Committee is vitiated in view of the fact that the Research Officer had not associated with the Vigilance Cell in the enquiry for finding out the social status of the petitioner. Not only this, the said lacuna was admitted by the learned AGP, who was appearing for the Committee. The order in Writ Petition No. 4111/2005 also refers the decision of the Apex Court in the case of Ku. Madhuri Patif and another vs. Additional Commissioner, Tribal Development, Thane and others, reported in AIR 1997 SC 2581 and the reference will be useful to the observations made by the Apex Court in the said case and we quote the same is under: "4. With regard to prayer (c) also, we feel that the Caste Scrutiny Committees for Social Welfare, Cultural Affairs and Sports Department should comprise of Additional Commissioner (Revenue) - Chairman of the concerned Revenue Division; Divisional Social Welfare Officer Member; and Research Officer as a Welfare Officer - Member Secretary to function in that behalf. 5. With regard to prayer (d), along with the Vigilance Cell, one Research Officer/Tribal Development or Social Welfare Officer would be associated in finding the social status of eligibility of the officers." 11. 5. With regard to prayer (d), along with the Vigilance Cell, one Research Officer/Tribal Development or Social Welfare Officer would be associated in finding the social status of eligibility of the officers." 11. It is really very surprising that when the Apex Court has observed in clear terms that along with the Vigilance Cell, one Research Officer/Tribal Development Officer/Social Welfare Officer would be associated in finding the social status, the Committee has courage to say that, "the order of the committee dated 24-6-2005 rejecting the caste claim of the petitioner as "Rajput Bhamta" V.J. in want of conclusive documentary evidences of his forefathers showing their caste as "Rajput Bhamta" prior to 1961, cannot be faulted merely on the ground that the Research Officer was not associated with the Vigilance Cell in the enquiry for finding out the social status of the petitioner. "The Committee has referred to a judgment of this Court in Writ Petition No. 3524 of 2001 in respect of Sau. Ramatai Madhukarrao Tapre. A copy of the said decision is also annexed to reply affidavit as "Annexure-I". 12. We have gone through the said judgment and found that in the case of Ramatai Tapre, this Court has specifically observed that the Research Officer is not required to conduct the field investigation along with police officer. However, he is only required to look into the documents and evidence collected by the police vigilance during the course of home enquiry, which has been done in this case. (emphasis supplied). This observation clearly goes to show that in the case of Ramatai Tapre, the Research Officer was associated with the Vigilance Cell whereas in the matter at hand, there is no material brought by the Committee to show that at any point of time the Research Officer/Tribal Development Officer/Social Welfare Officer was associated with the enquiry in the matter of petitioner-Narayan Solanki. On the contrary, it was a constant stand of the petitioner that the Research Officer had not associated with the vigilance cell and this fact was also admitted by the learned Advocate appearing on behalf of the Committee. In spite of this fact, the Committee is bold enough to invalidate the claim of the petitioner showing total disregard to the order passed by this Court on 16-11-2005. In spite of this fact, the Committee is bold enough to invalidate the claim of the petitioner showing total disregard to the order passed by this Court on 16-11-2005. We are also shocked to note that though this Court by an order dated 16-11-2005 set aside the order of the Committee and remanded the matter back for fresh decision, the Committee has observed that the order of the Committee dated 24-6-2005 rejecting the claim of the petitioner cannot be faulted merely on the ground that the Research Officer was not 'associated with the Vigilance Cell in the enquiry. Once the order of the Committee dated 24-62005 was quashed and set aside by this Court, we are unable to understand as to how the Committee can say that there is no fault in the order of the Committee dated 24-6-2005 and passed the order dated 22-6-2006 as if the Committee is an appellate authority sitting over the decision of this Court. It is also surprising that when this Court has directed the Committee to take a fresh decision in view of the fact that the order dated 24-6-2005 suffers from the lacuna of non-association of the Research Officer in the enquiry, the Committee without showing any material that the committee has considered the matter afresh has tried to stick up to its order which was quashed and set aside by this Court. We also find that ' there is no material which would suggest that the Committee has considered the documentary evidence/any other material afresh. We also do not find that the Committee has considered the Vigilance Cell Report and the documentary evidence submitted by the petitioner. In view of the order passed by this Court on 16-11-2005, it was expected from the Committee to decide the claim of the petitioner on merits. By not following the directions of this Court, the Committee has shown total disregard to the order of this Court. 13. The learned Advocate for the petitioner has submitted that in view of the provisions of Rules 10 and 12 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003, a complete procedure is carved out for deciding the caste claim. He has also submitted that though the Rules are framed only for Scheduled Tribe Verification Committee, the same would be applicable to other Tribes such as Nomadic Tribe and VJNT etc. He has also submitted that though the Rules are framed only for Scheduled Tribe Verification Committee, the same would be applicable to other Tribes such as Nomadic Tribe and VJNT etc. It was further submitted that it would be a contradiction to say that the Rules would apply to one Tribe and they would not apply to other Tribe and, therefore, the learned Advocate for the petitioner submitted that even in view of the procedure as prescribed under Rules 10 and 12 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003, it is necessary that a Vigilance Cell has to examine and verify the material for the purpose of verification and the Vigilance Officer includes the Research Officer and as such the Research Officer is required to be associated to conduct the field investigation along with police officer and, therefore, the Committee cannot say that the Research Officer is not required to conduct the field investigation. 14. We see substantial force in the submission of the learned Advocate for the petitioner. Apart from the submissions, the fact remains that when this Court had specifically directed the Committee to take fresh decision in accordance with law after associating the Research Officer, the Committee was expected to follow the directions of this Court. If the Committee had any grievance about the order passed by this Court, the course open for the Committee was to challenge the order of this Court before the appropriate forum, but the Committee without doing so, has reiterated its decision which was already quashed and set aside by this Court and has shown audacity to say that the order (which was quashed and set aside by this Court) cannot be faulted merely on the ground that the Research Officer was not associated with the Vigilance Cell in finding out the social status of the petitioner. The learned Advocate for the petitioner has submitted that during the pendency of the petition, the petitioner has received an order of termination dated 12-7-2006 on 25-7-2006 and the said order is annexed to the petition by way of amendment as "Annexure-D". 15. The Committee has rejected/invalidated the caste claim of the petitioner by giving a total go-bye to the judgment and order of this Court. 15. The Committee has rejected/invalidated the caste claim of the petitioner by giving a total go-bye to the judgment and order of this Court. The learned Advocate for the petitioner has strongly submitted that the approach of the Committee is not only adamant but contemptuous and as such he further submitted that this Court may take serious note of the approach of the Committee. Though the learned AGP tried to support the impugned order, we are not convinced with the submission made by the learned AGP for the reason that the reply filed by the respondent No.2 is nothing but reiteration of the order of the Committee. 16. In view of the facts which we have observed, we also feel that the decision of the Committee shown total disregard to the order passed by this Court. In the result, we quash and set aside the order passed by the Committee on 22-6-2006. We direct the Committee to decide the caste claim of the petitioner afresh on merits and in accordance with the provisions of law as well as in view of the decision of this Court in Writ Petition No. 4111/2005. Consequently we remand back the matter to the Committee for fresh decision. The Committee shall decide the matter at the earliest and in any case within a period of six weeks from today. We also feel that this is a fit case where the approach of Committee must be dealt with seriously, accordingly the Committee is saddled with costs of Rs. 10,000/- (rupees ten thousand only) and the same be deposited in this Court within a period of four weeks from today. We further quash and set aside the termination order dated 12-7-2006 and we make it clear that the respondent No, 3 is at liberty to pass appropriate orders after the decision of the Committee as provided under the provisions of law. 17. Writ petition stand disposed of accordingly. Rule is made absolute in aforesaid terms. Order accordingly.