Partly allowed

Shridhar Moreshwar Thakur v. the State of Mah and Ors.

Bombay HC4 Oct 2010WP/5905/2006

Case brief

AI extract

What is this about?

Court quashed ex-parte order of Scrutiny Committee due to lack of personal hearing opportunity on telegram notice. Matter remanded for fresh hearing. Interim relief on result declaration rejected citing Supreme Court precedent on forum appropriateness.

What did the court decide?

Impugned judgment and order of Respondent No.2 Committee quashed. Matter remanded with direction to decide claim after hearing by 27.12.2010. Citing interim relief rejected in Civil Application.

Shridhar Moreshwar Thakur Vs the State of Mah and Ors. — Writ and Judicial Review | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 5905 OF 2006 WITH CIVIL APPLICATION NO. 9245 OF 2009

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SHRIDHAR MORESHWAR THAKUR VERSUS STATE OF MAHARASHTRA & OTHERS

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Shri A.S.Golegaonkar, Advocate for the petitioner, Shri D.V.Tele, AGP for respondents 1,3,4 & 5, Shri R.P.Phatke, Advocate for respondent No.2 and Shri K.C.Sant, Advocate for respondent No.7.

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CORAM : S.B.DESHMUKH & SHRIHARI P.DAVARE, JJ.

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Dated : October 4, 2010

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PER COURT :-

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1. Heard respective counsel.

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In the present Writ Petition, while issuing notices on 26.9.2006, this Court (Coram : P.V.Hardas & R.M.Savant, JJ.), had also granted ad-interim relief in following terms :

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"... In the meantime, no adverse action be taken against the petitioner on the basis of the order / judgment of the respondent Caste Scrutiny Committee till then. "

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From time to time, the said petition was heard and adinterim relief was continued till today. In the meantime, respondent No.2 was directed to make available the original record for perusal of this Court.

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Petitioner had filed Civil Application No.9245 of 2009 with following prayers :-

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" (A) Grant Rule and allow this Civil Application.

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(B) To direct the respondent No.6 & 7 i.e. College authorities and University to declare result of the Petitioner and final B.A.M.S. of May / June 2009, Examination against the seat No.65319 and send the petitioner for completion of internship programme as well after completion of internship programme college and authorities and University be directed to issue B.A.M.S. Degree certificate and internship completion certificate, pending hearing and final disposal of this writ petition No.5905 of 2006.

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Said Civil Application was also heard from time to time.

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Perusal of the Writ Petition shows that social status claim of

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the petitioner that he belongs to Thakur - a Scheduled Tribe was referred to respondent No.2 committee on 3.12.2001. On 28.5.2003 enquiry was

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conducted. According to the petitioner no steps were taken by the committee thereafter. The petitioner has further averred that petitioner was constrained to file Writ Petition No.4699 of 2005 seeking direction from this Court. This Court, after hearing learned counsel for respective parties, passed an order on 26.7.2005 directing respondent No.2 to decide the claim of the petitioner within three months. Petitioner was also directed to appear before the committee on 18.8.2005. Accordingly, on the said date, petitioner appeared before the committee. He was informed that the copy of the vigilance report will be served upon him and in due course of time he will be called for the personal interview. On 22.5.2006, copy of the vigilance report dated 28.5.2003 was served upon the petitioner and his reply was sought for.

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Shri Golegaonkar, learned Advocate submitted that on 5.6.2006, respondent No.2 committee sent a telegram and asked the petitioner to appear before the committee for interview on 5.6.2006 at 11.00 a.m. According to the petitioner, this telegram was received by him on 5.6.2006 itself at 3.20 p.m. and therefore, it was humanly impossible for him to appear before the committee at 11.00 a.m. on that day. According to the petitioner, on 6.6.2006, at 9.55 a.m., by way of an abundant precaution, he sent a telegram to respondent No.2, narrating this fact. At that time the committee was functioning at Nasik. According to the learned counsel for the petitioner, on 19.6.2006, respondent committee proceeded ex-parte against the petitioner and decided his

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claim by an ex-parte order. (Emphasis supplied).

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Shri Golegaonkar, learned Advocate took us through the various documents placed on record in support of the social status claim of the petitioner, including the documents relating to petitioner's great grand-father, grand-father, cousin grand-father, father and uncle. He also pointed out the order passed by this Court in Writ Petition No.4699 of 2005 (Exhibit "F").

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From the judgment of the respondent committee, Shri Golegaonkar, learned Advocate points out the findings of the committee, which read as; " ... In view of the natural justice, the applicant was sent a telegram by Scrutiny Committee whereby the applicant was asked to remain present for personal hearing before the Scrutiny Committee on 5.6.2006. But the applicant did not appear for hearing on notified date. Hence the Scrutiny Committee had left no alternative than to decide the tribe claim of the applicant as exparty."

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Shri Phatke, learned Standing Counsel for respondent No.2 submits that in case of remand of the matter, time of six months would be necessary for the committee.

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Shri Golegaonkar, learned Advocate seeks ad-interim relief, in view of the prayers made in the Civil Application.

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Grant of interim relief is an important aspect. The Supreme Court so also this Court have set principles for grant of interim relief. Ordinarily, triple test of prima facie case, balance of convenience and irreparable loss that would be considered by the Court while granting or refusing to grant the ad-interim / interim relief. According to learned counsel Shri Golegaonkar, in the case on hand, hearing of the Writ Petition can be adjourned by keeping it pending, however, ad-interim relief in terms of prayer clause (B) needs to be granted in favour of the petitioner directing respondents 6 and 7 to declare the result of the petitioner of final B.A.M.S. examination and send the petitioner for completion of internship, as well, after completion of internship, college and university authorities need be directed to issue B.A.M.S. degree certificate and internship completion certificate, pending hearing and final disposal of the Writ Petition.

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We have given anxious consideration to the submissions of learned counsel Shri Golegaonkar. It is apposite at this stage to notice the judgment of the Honourable Supreme Court in the case of Kalabharati Advertising Vs. Hemant Vimalnath Narichania [JT 2010 (9) SC 382]. This book was made available to learned counsel Shri Golegaonkar. He read the judgment and submitted that the facts in the reported judgment are different. There, in that case, the petition was withdrawn and in the case on hand, according to him, the Scrutiny Committee has decided the social

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status claim of the petitioner and this Court has recorded a finding that the decision of the committee is an ex-parte. In substance, he submitted that ratio of the judgment is not applicable to the facts of the present case.

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We have noticed the facts, which are mentioned in the reported judgment. There, in that case, a public interest litigation was filed before this Court at Mumbai. Some interim orders were passed in that Writ Petition. We have considered the entire judgment and facts which were before the Honourable Supreme Court in the cited judgment. In our opinion, the Honourable Supreme Court has considered its earlier judgments, right from 1952, in the said judgment. These judgments have been specifically noticed and mentioned in paragraph No.22. We reproduce the said paragraph No.22 as under :-

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" 22. It is a settled legal proposition that the forum of the writ court cannot be used for the purpose of giving interim relief as the only and the final relief to any litigant. If the Court comes to the conclusion that the matter requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant for an interregnum period till the said party approaches the alternative forum and obtains interim relief. (vide: State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Amarsarjit Singh v. State of Punjab, AIR 1962 SC 1305; State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685; State of Bihar v. Rambalak Singh "Balak" & Ors.,

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AIR 1966 SC 1441; and Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke & Ors., AIR 1975 SC 2238). "

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The social status claim / certificate was the issue, for the first time, decided by the Honourable Supreme Court in it's lead judgment in the case of Madhuri Patil Vs. Additional Commissioner [(1994) 6 SCC 241]. Madhuri Patil was again before the Honourable Supreme Court at second time. That judgment is reported in (1997) 5 SCC 437. The State of Maharashtra, in view of the judgment of the Supreme Court in the case of Madhuri Patil, came with the Maharashtra Scheduled Castes, Scheduled Tribes, De Notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 and Maharashtra S.T.Certificate Rules, 2003 ("Rules of 2003"). In view of the Rules of 2003, social status claim by the citizen is being considered. It is not in dispute that respondent No.2 committee is being established in view of the Rules of 2003. It is further not in dispute that in the case on hand, social status claim of the petitioner was referred to the committee on 3.12.2001. From the date of this reference till the date of scrutiny committee's judgment, which is now challenged in this Writ Petition, some developments took place, as referred to by us in the foregoing paragraphs. Today, after hearing learned counsel for the parties, we are convinced that the petitioner was not afforded an opportunity of being heard by respondent No.2 committee. The date of interview was informed to the petitioner by a telegram. We have considered the submissions of Shri Golegaonkar,

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learned Advocate in respect of date of receipt of the telegram and his case that this telegram was received by him after the date and time scheduled for the interview. The judgment of the committee also refers that it is an ex-parte judgment. It is for these reasons, we are inclined to quash and set aside the impugned judgment and order and remand the matter back to the committee.

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Now, the submission of Shri Golegaonkar, learned Advocate for the petitioner that petition can be kept pending and interim relief in terms of Civil Applications be granted is to be considered by us. According to the petitioner, by way of ad-interim relief, College and University needs to be directed for declaration of the result of the petitioner for B.A.M.S. course. By way of interim relief, petitioner also seeks direction for entry and completion of internship. It is a matter of common knowledge that after declaration of result of B.A.M.S. examination, for which the admission was sought against reservation, further interim relief for completion of the internship, gives full stop at the graduation level in favour of the petitioner. Thereafter, the petitioner may seek registration in accordance with the Maharashtra Medical Practitioners' Act and may practice accordingly as a Doctor / Medical Practitioner, at least within the limits of the State of Maharashtra, in accordance with the provisions of law. In that contingency, he is bound to serve either with the State Government or other institutions if appointed and/or he is bound to practice as a Medical practitioner. After remand of the matter, the

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Committee may decide the issue i.e. social status claim of the petitioner either way, meaning thereby, either accepting the case of the petitioner or rejecting the social status claim of the petitioner and thus his degree certificate and registration as medical practitioner attains the finality. However, if the social status claim by the petitioner turns out to be spurious by the committee, the petitioner in all probabilities would challenge the said order by filing Writ Petition in this Court. If he wants to pursue further education i.e. post graduation or desires to seek an employment and feels that rejection of social status claim is a barrier, he would seek interim relief again before this Court. In our opinion, the moment this Court is handing down this order and remanding the matter back to the committee, is loosing the jurisdiction over the issue. In these facts and circumstances, in our opinion, ratio of the judgment of the Supreme Court in the case of Kalabharati (supra) squarely applies to the case on hand. We are not inclined to grant ad-interim relief or interim relief in the Civil Application for all these reasons.

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In the result, Writ Petition is partly allowed. Judgment and order passed by respondent No.2 Committee dated 19.6.2006 stands quashed and set aside. The matter is remanded back to respondent No.2 Committee to decide the same, after affording an opportunity of being heard to the petitioner. We direct the petitioner to remain present before the Committee, now at Nandurbar, on 25.10.2010 at 11.00 am. The Committee shall decide the claim of the petitioner in accordance with

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law on/or before 27.12.2010. Ad-interim relief, granted by this Court on 26.9.2006 stands vacated.

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We make it clear that we have not expressed any opinion on

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merits in this Writ Petition.

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In view of the order passed in the main Writ Petition, Civil Application stands rejected.

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No order as to costs, both, in Writ Petition so also Civil

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