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Madhya Pradesh High Court · body

2011 DIGILAW 450 (MP)

Girish Warudkar v. State of M. P.

2011-04-13

ALOK ARADHE

body2011
ORDER 1. In this writ petition under Article 226 and 227 of the Constitution of India, the petitioner challenges the validity of the decision dated 14.8.2003 taken by High Level Scrutiny Committee by which the Committee has decided to cancel the caste certificate issued to the petitioner as well as the minutes of meeting of the High Level Scrutiny Committee held on 16.3.2004. The petitioner has challenged the communication (Annexure P-7) issued by the Additional Commissioner. Tribal Development to Collector by which the Additional Commissioner has directed the Collector to ensure that caste certificate issued in favour of the petitioner by the Competent Authority be cancelled and suitable action should be taken against the Competent Authority which has issued the certificate. 2. Facts giving rise to filing of the writ petition briefly stated are that father of the petitioner migrated from Amravati in the State of Maharashtra to Shahdol in the State of Madhya Pradesh in the year 1962. Thereafter the father of the petitioner shifted from Shahdol to Bhopal in the year 1967. The petitioner was born on 26.8.1969 at Bhopal. The petitioner completed his studies from Bhopal. The petitioner claims that he belongs to 'Halba' caste. A caste certificate dated 16.7.1984 (Annexure P-4) was issued to the petitioner. Pursuant the special drive undertaken by the respondents for recruitment of Scheduled Tribe candidates, the petitioner participated in the process of recruitment and was appointed on the post of Lower Division Clerk in General Administration Department of the State of Madhya Pradesh vide order dated 17.5.1990. The caste certificate of the petitioner was verified by the Collector and a communication in this regard was sent by Collector to Secretary, General Administration Department of the State of Madhya Pradesh. Thereafter, the matter was taken up by the High Power Scrutiny Committee constituted by the State Government pursuant to decision of the Supreme Court in Ku. Madhuri Patil and another v. Additional Commissioner, Tribal Development and others, AIR 1995 SC 94 The High Power Scrutiny Committee came to the conclusion that father of the petitioner is original resident of State of Maharashtra. He migrated to the State of Madhya Pradesh in the year 1962 and started residing in District Shahdol and thereafter from 1964 in Bhopal. Madhuri Patil and another v. Additional Commissioner, Tribal Development and others, AIR 1995 SC 94 The High Power Scrutiny Committee came to the conclusion that father of the petitioner is original resident of State of Maharashtra. He migrated to the State of Madhya Pradesh in the year 1962 and started residing in District Shahdol and thereafter from 1964 in Bhopal. Since father of the petitioner was original resident of State of Maharashtra prior to 1950, therefore, the caste certificate issued in favour of the petitioner cannot be accepted for the State of Madhya Pradesh. Accordingly, a recommendation was made that action for cancellation of the caste certificate should be taken. The copy of the decision taken by the High Power Scrutiny Committee was communicated by Additional Commissioner, Tribal Development to the Collector, Bhopal vide communication dated 20.6.2005 with a direction that Competent Authority should immediately cancel the caste certificate which has been issued in favour of the petitioner and disciplinary action should be taken against the Competent Authority which has issued the caste certificate. In the aforesaid factual background, the petitioner has approached this Court. 3. The respondent have filed the return in which inter alia it is averred that petitioner in his statement which was recorded by High Power Scrutiny Committee Annexure R-5 admitted that his father was living in Maharashtra and was appointed under general category. It was further admitted that petitioner's father did not avail the benefit of Scheduled Tribe category. Copy of the statement of the petitioner dated 14.8.2003 has been annexed as Annexure R-5. The High Power Scrutiny Committee after considering the entire material on record including the report submitted by the Superintendent of Police, came to the conclusion that petitioner is not entitled for grant of caste certificate. Accordingly, the directions were rightly issued for cancellation of caste certificate issued to the petitioner. It has further been averred that the petitioner is not entitled to arty relief as he had secured the appointment on the basis of a forged caste certificate. It has further been averred that the High Power Scrutiny Committee has followed the procedure laid down by the Supreme Court in Madhuri Patil's (supra), and has completed the enquiry and has recorded findings of fact which can neither be termed as arbitrary nor illegal. 4. It has further been averred that the High Power Scrutiny Committee has followed the procedure laid down by the Supreme Court in Madhuri Patil's (supra), and has completed the enquiry and has recorded findings of fact which can neither be termed as arbitrary nor illegal. 4. Shri Akshay Dharmadhikari, learned counsel for the petitioner while referring to the Constitution (Scheduled Tribe) Orders, 1950 has contended that Clause 3 of the Order provides that any reference in this order to a State or to a District or other Territorial Division thereof shall be construed as a reference to the State, District or other Territorial Division as constituted on 1st May, 1976. 'Halba' caste is included as tribe in the State of Madhya Pradesh under the Scheduled Tribe Order, which is apparent from perusal of Entry 17 of Part VIII of the Order. Learned Counsel for the petitioner further submitted that the High Power Scrutiny Committee grossly erred in directing cancellation of the caste certificate issued to the petitioner on the ground that father of the petitioner had migrated to the State of Madhya Pradesh after 1950. In support of his submission, learned Counsel for the petitioner has placed reliance on the order dated 11.8.2009 passed by Division Bench in W.A. No. 503/2009 and the decision of the Supreme Court in State of Maharashtra v. Milind and others, AIR 2001 SC 393 . 5. On the other hand, Shri Harish Agnihotri, learned Government Advocate for the respondents has drawn the attention of this Court to Clause 13 of the circular issued by the State Government and has submitted that where somebody migrates from one State to another, his caste, shall be determined with reference to the State to which he originally belongs or if the has migrated to another State in the year 1950 then in accordance with the provisions of the 1950 Order. It has further been submitted that father of the petitioner has disclosed his caste to be 'Koshti' and was appointed as a general category candidate. Learned Government Advocate has referred to the communication dated 1.11.1993 wherein, it is stated that no record is available in the school with regard to the caste of the petitioner and he has not been given any scholarship. 6. I have considered the submission made on both sides. Learned Government Advocate has referred to the communication dated 1.11.1993 wherein, it is stated that no record is available in the school with regard to the caste of the petitioner and he has not been given any scholarship. 6. I have considered the submission made on both sides. Article 342 of the Constitution of India empowers the President to specify the tribes or tribal communities or parts of or groups within the tribes or tribal communities in respect of a State which shall, for the purposes of the Constitution shall be deemed to be Scheduled Tribes in relation to that State after consultation with the Governor of the concerned State. The Constitution Bench of the Supreme Court in Action Committee on issue of Caste certificate to Scheduled Castes and Scheduled Tribes, in the State of Maharashtra and others v. Union of India and another, (1994) 5 SCC 244 , while interpreting provisions of Article 341 and 342 of the Constitution of India held that power of the President is limited to specifying the caste or tribes which shall be for the purposes of Constitution be deemed to be Scheduled Caste or Scheduled Tribe in relation to a State or a Union Territory as the case may be. It has further been held that the castes or tribes have to be specified in relation to a given State or Union Territory. Thus, a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified. Considerations for specifying a particular caste or tribes or class for inclusion in the list of Scheduled Caste/Scheduled Tribe or Backward Classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations' on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations' on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purpose of this Constitution". Similar view has been taken in the case of State of Maharasthra v. Milind (supra). In MCD v. Veena, (2001) 6 SCC it has been held that specification of a particular caste in one State does not necessarily mean that members of the same caste with same nomenclature to another State would be entitled to rights, privileges and benefits admissible to the members of that caste. 7. In the backdrop of well settled legal position, facts of the case may be seen. The petitioner in his statement before the State Level Scrutiny Committee stated that his father is employed as Assistant Director in Technical Education. service record of the father of the petitioner, his father's caste is recorded as "Koshti", and the father of the petitioner was appointed under the general category on 18.10.1962. The petitioner has further admitted in his statement that father 0 the petitioner has migrated to the State of Madhya Pradesh after formation 0 the State of Madhya Pradesh i.e., on 1.11.1956. Thus, the father of the petitioner is originally resident of State of Maharashtra who had mirgrated to the State of Madhya Pradesh in the year 1962. In view of the law laid down by the Constitution Bench of the Supreme Court in Action Committee and Milind (supra), it is apparent that petitioner is not entitled to the rights, privileges and benefits of the caste which was notified as Scheduled Tribe in the State of Maharashtra. In view of the law laid down by the Constitution Bench of the Supreme Court in Action Committee and Milind (supra), it is apparent that petitioner is not entitled to the rights, privileges and benefits of the caste which was notified as Scheduled Tribe in the State of Maharashtra. Eve though, 'Halba' caste is notified as Scheduled Tribe in the State of Madhya Pradesh as well as State of Maharashtra, then also since the Tribe is specified in relation to a State under Article 342 of the Constitution of India, therefore, 0 migration from the State of Maharashtra to State of Madhya Pradesh the father of the petitioner would not be entitled to the benefits, rights and privileges of the caste and consequently, the petitioner cannot be held to be entitled for the said rights and privileges. Apart from this, the father of the petitioner has disclosed his caste as "Koshti" in his service record and was appointed under the general category. Therefore, the petitioner cannot be said to be held to be 'Halba' b caste. 8. The contention of the learned counsel for the petitioner that any reference under the Scheduled Tribe Order, 1950 to a State or a District or other Territorial Division shall be construed as reference to a State, District or other Territorial Divisional as constituted on 1.5.1976 is concerned, suffice it to say that the provisions of the Constitution (Scheduled Tribe) order, 1950 were amended b the Scheduled Caste and Scheduled Tribe (Amendment) Act, 1976 and, therefore, Clause 3 of the (Scheduled Tribes) Order, 1950 have to be read in that co• text. Clause 3 of the Order has no application in the facts and circumstances of the case, as the State of Maharashtra and the State of Madhya Pradesh came into existence prior to 1976 and there was no change in Territorial Divisions or Districts at the relvant point of time which would have any bearing on merits of the case. Therefore, the contention that since the father of the petitioner had migrated to the State of Madhya Pradesh prior to 1.5.1976 and is, therefore, entitled to the benefits or rights and privileges cannot be accepted. 9. For the aforementioned reasons, no case for interference with the decision taken by the High Level Committee is made out. The writ petition is devoid of any substance. The same is accordingly dismissed.