- (1.) By the present Writ Petition, the petitioner Anand Katole has put to challenge the order dated 17th April, 2013 passed by the respondent No. 1 Scheduled Tribes Caste Certificates Scrutiny Committee, Amravati, with a further prayer to declare that the petitioner Anand belongs to Halba/Halbi, a Scheduled Tribe. Heard learned Senior Adv. Mr. S.V. Manohar for the applicant-intervener in Civil Application No. 2459 of 2013, and learned Adv. Mr. Vikas Kulsunge for applicants-interveners in Civil Application No. 658 of 2014. Considering the reasons stated in both the Civil Applications, the Civil Applications are allowed and disposed of. FACTS:
(2.) The present litigation has a chequered history. The Petitioner is B.E., and was appointed by order dated 16th March, 1998 as a Field Officer in the category of Scheduled Tribe on the establishment of the Maharashtra Pollution Control Board, and was ultimately confirmed in service. On 4th November, 2003, his employer issued a notice of termination for failure to produce the Caste Validity Certificate of he belonging to Halba/Halbi, Scheduled Tribe. The petitioner filed Writ Petition No. 4688 of 2003 and by order dated 2nd December, 2003, this Court allowed the Writ Petition and directed the respondent No. 1 Committee to decide his tribe claim within eight weeks, and, in the meanwhile, the termination order was kept in abeyance. The respondent No. 1 - Committee thereafter on 20th March, 2004, decided the tribe claim of the petitioner and rejected it. The petitioner filed Writ Petition No. 1687 of 2004 in this Court, and by Judgment and Order dated 5th May, 2004, this Court dismissed the Writ Petition and confirmed the order passed by the respondent No. 1 Committee. The petitioner went ahead and filed an appeal in Supreme Court vide Civil Appeal No. 6340 of 2004. The Apex Court decided the said Appeal by Judgment and Order dated 8th November, 2011, and set aside both, the Judgment of this Court as well as the order of Scrutiny Committee and remitted the matter to the respondent No. 1 Scrutiny Committee for a fresh decision. The Committee, after taking sufficient time, finally took the decision by the order, which is impugned in the present petition and rejected the tribe claim of the petitioner. Hence this Writ Petition again. ARGUMENTS:
(3.) Learned Senior Adv., Mr. M.G. Bhangde appearing for the petitioner made the following submissions:- [a] The counsel for the respondent Scrutiny Committee had raised the Preliminary objection before this Court in the present Writ Petition seeking dismissal of this Writ Petition on the Preliminary objections, which were heard by this Court, and this Court recorded an order on 30th January, 2014, holding in para 18 of the said order that the Preliminary objection, as raised by the Committee, was overruled being without any substance and was, thus, rejected. The respondent went to the Apex Court against the said order dated 30th January, 2014 and the Apex Court dismissed the Special Leave Petition and hence according to Mr. Bhangde, the order rejecting the Preliminary Objection stands confirmed and cannot now be reopened and this Court will have to proceed with hearing of the petition on merits. [b] Turning to the merits of the case, the learned Senior Adv., for the petitioner submitted that after remand of the matter from the Apex Court to the Respondent No. 1 Scrutiny Committee, a fresh Vigilance Cell Report was called by the Committee, which was served on the petitioner along with a Showcause-Notice dated 13th December, 2012. The petitioner filed his reply to the said report vide reply dated 12th February, 2013. Thereafter, the petitioner was never called for any hearing or for asking any explanation and almost after two months, the impugned order came to be passed. [c] The petitioner was granted conditional Validity Certificate on 30th June, 1990, which was then issued because of pendency of the main matter before the Apex Court, i.e., Milind's case and as a matter of policy, pending decision of Milind's case, such conditional Validity Certificates were issued to students, employees etc. Fact, however, remains, according to Mr. Bhangde, that the Caste Certificate on which the conditional validity was issued on 30th June, 1990, was never verified as per the procedure laid down after the commencement of the Act, namely Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance & Verification of) Caste Certificates Act, 2000 (Act No. 23 of 2001) and coming into force of the Rules. But a stand has been taken by the Committee that on 15th March, 2004, pursuant to the directions of the Govt., after decision of the Supreme Court in the case of Milind against Milind, the conditional validity was cancelled, about which the petitioner was never made aware. He, therefore, submitted that the petitioner has challenged the same accordingly by amending the Writ Petition. [d] The Committee under the impugned order framed as many as six Issues. Issue Nos. 1 and 4 are the connected Issues. Perusal of the reasons in answer to Issue Nos. 1 and 4 clearly show that the reasons bristle with the reasons occurring in the Supreme Court judgment, so also this Court in so far as the issue about the sub-caste is concerned. It was not expected of the Committee to have recorded conflicting reasons not only in relation to Issue Nos. 1 to 6 framed by it, but also on the other aspects, so also the Affidavits-in-Reply filed in this Court to the present Writ petition, which are bordering the contempt. The Committee relied on the judgments of this Court in relation to the Thakur caste which cannot have any application, since the nomenclature, namely "Thakur", as found in all those decisions of the Bombay High Court pertain to the upper class Thakur and the Scheduled Tribe Thakur which is not the case in so far as Halba/Halbi or Halba Koshti/Halbi Koshti etc., is concerned. On the contrary, the Supreme Court rejected the theory of sub-caste of Halbi as Halba Koshti and held that there is no such caste as Halba Koshti. With reference to the status as Scheduled Tribe as proclaimed by the relevant Notification, the Committee has referred to certain Certificates showing the caste as Koshti vide Clause 15(d)[i] to [v] of the impugned order and held that the petitioner's ancestors and relatives are having sub-caste Koshti and, therefore, they are not the primitive Halbas. But, as a matter of fact, none of these persons are related to the petitioner, nor there is any evidence to that effect and the said conclusion drawn by the Committee is perverse and one-sided. [e] As regards Issue Nos. 2 and 3 discussed by the Committee, learned Senior Adv. Mr. Bhangde submitted that the reasons given by the Committee are contrary to the remand order made by the Supreme Court. That apart, the comparative analysis shown by the Committee is also factually wrong, since the grandfather of the petitioner was admittedly never examined. Secondly, reliance has been placed on the alleged statement of the father, which was never recorded in the fresh Vigilance enquiry after the remand order was made by the Supreme Court. The statement of father recorded earlier appears to have been relied upon by the Committee, but then the said statement also does not reflect what is stated in the impugned part of the order in answer to Issue Nos. 2 and 3. [f] The learned Senior Counsel then went on to argue that the petitioner does not dispute the position that the affinity test is relevant. But according to him, as indicated in the Judgment of the Supreme Court itself, the affinity test cannot be all and end all of the matter and at any rate cannot be conclusive to adjudicate the caste claim. He then argued that there are no reasons why the Committee has rejected the claim on the affinity test, and by merely saying that there is no match as to the affinity test for the caste claim of the petitioner, there was nothing to reject the caste claim on that ground. [g] The learned Senior Adv., for the petitioner then argued with reference to Issue No. 5 that the petitioner cannot and does not dispute the position of law that the Validity Certificates issued to the relatives of the petitioner ipso facto cannot be the only reason for declaring the claim of the petitioner as valid. But then according to him, the Vigilance Report or the order of the Committee ought to show the distinction for not validating the caste claim of the petitioner on that ground which has not been shown in the instant case. On the contrary, the blood relatives of the petitioner by name Vikram and Rupali, who are the children of real brother Rajeshwar of the father of the petitioner have been given the Caste Validity Certificates as Halba and no reason is forthcoming as to why the petitioner should not be given the same benefit. Mr. Bhangde cited some decision of this Court on this proposition. [h] According to learned Counsel in patriarchal society, the caste is determined by the caste of the father as held by this Court in the case of Hira Shalikram Mundharikar Vs. Scheduled Tribe Caste Certificate Scrutiny Committee, 2010 6 MhLJ 274. Elaborating the said aspect, Mr. Bhangde then argued inviting our attention to the Maharashtra Scheduled Tribes (Regulation of Issuance & Verification of) Certificates Rules, 2003 framed under Act No. 23 of 2001, that Rules 2(f), 3(3)(a)(i)(ii) and (iii) and (d), Rule 11(c)(vi), (d)(iii) and Form-F-20(d)(2)(3), in terms, show that what is relevant is the caste of the paternal side or the paternal relatives. The foundation of the impugned order, however, shows that the Committee dug out the certificates or the documents in relation to alleged relatives on maternal side and some alleged relatives with surname 'Katole' with whom the petitioner has no concern, and the averments to that effect on page 15 of the petition have not been traversed, in which their caste was said to have been mentioned as "Halba Koshti." This was wholly irrelevant and further the petitioner was never offered an opportunity to explain anything, nor was supplied the document on that aspect. The reasons given by the Committee are, therefore, perverse. [i] The counsel for the petitioner in relation to Issue No. 6 then submitted that the attempt of the respondents to buttress the principles of res judicata or estoppel is wholly wrong and unjustified. According to him, the said principles have no application, because there was no final adjudication in respect of the Caste Certificate dated 27th January, 1989 issued by the Executive Magistrate, Khamgaon, and cancellation of the Conditional Validity Certificate by another order dated 15th March, 2004, which has also been challenged by amendment to the petition, and it was never communicated to the petitioner and, therefore, the said order cannot be utilized against the petitioner. At any rate, the said order of Committee dated 15th March, 2004 is also under challenge in the present petition and does not show any reasons for invalidating the caste claim of the petitioner. The question of obtaining the second certificate does not arise, since the Act of 2000 came into force and thereafter the certificate from the place of origin was obtained. The allegations about the suppression of facts in relation to obtaining of first certificate or the cancellation by order dated 15th March, 2004 by the Committee are all misconceived and, therefore, according to him, the validity of the Caste Certificate obtained from the Sub-Divisional Officer, Pusad on 2nd January, 2002, has wrongly been denied by the Committee. Finally, to substantiate his contentions, learned Senior Adv. Mr. Bhangde cited the following decisions:- [a] Bhanu Kumar Jain vs. Archana Kumar & another, 2005 1 SCC 787, [b] Apoorva Vinay Nichale Vs. Divisional Caste Certificate Scrutiny Committee No. 1 & others, 2010 6 MhLJ 401, [c] Heera Shalikram Mundharikar Vs. Scheduled Tribe Caste Certificate Scrutiny Committee & others, 2010 6 MhLJ 274, [d] Smt. Sangita Sahebrao Bhalerao Vs. State of Mah. & others [Writ Petition No. 6744 of 2011 decided on 12th December, 2013] Coram V.M. Kanade & M.S. Sonak, JJ. [e] Sajjadanashin Sayyed Md. B.E. EDR. (D) by Lrs. Vs. Musa Dadabhai Ummer & others, 2000 3 SCC 350, [f] Syed Yakoob vs. K.S. Radhakrishnan 6 others, 1964 AIR(SC) 477, and [g] Union of India & others vs. Dinanath Shantaram Karekar & others, 1998 7 SCC 569, SUBMISSIONS MADE BY THE RESPONDENTS:;