Allowed

Shrikant Chandrakant Saindane v. the State of Mah and Ors.

Bombay HC25 Aug 2011WP/2136/2011

Case brief

AI extract

What is this about?

Joint Writ Petitions impugning Condition No. 7 of a Government Resolution requiring a caste validity certificate before appointment or promotion under reserved categories. The Court struck off the condition as unreasonable and ordered provisional appointments subject to validation.

What did the court decide?

Condition No. 7 of the CR.Rule struck down; provisional appointment orders to be issued forthwith subject to validation; Scrutiny Committees directed to decide claims within 6 months.

Shrikant Chandrakant Saindane Vs the State of… — Pension and Retirement Benefits | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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(1) WRIT PETITION NO.2136 OF 2011

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Shrikant s/o Chandrakant Saindane, age: 24 yers, Occ: Nil, R/o Bhokar, Taluka & District Jalgaon. Petitioner

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Versus

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1 The State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai.

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2 The Secretary, General Administration Department, Government of Maharashtra, Mantralaya, Mumbai.

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3 The Commissioner of Police, Navi Mumbai.

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4 The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar, Division, Nandurbar.

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Respondents

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Mr.S.R.Barlinge, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. for respondents no.1 to 3.

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WITH

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(2) WRIT PETITION NO.5340 OF 2010

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Sandip Shriram Thakur, age: years, Occ: Nil, R/o C/o Onkar Sonu Thakur, Surbhi Nagar, Bhusawal, Tq.Bhusawal, Dist.Jalgaon. Petitioner

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Versus

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1 Scheduled Tribe Certificate Verification & Scrutiny Committee, Nandurbar Division, Nandurbar, through its Member Secretary.

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2 Mahatma Phule Krishi Vidyapith, Rahuri, Dist. Ahmednagar, through its Vice Chancellor (Administration).

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3 The State of Maharashtra, through Principal Secretary, General Administration Department, Mantralaya, Mumbai-32.

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Mr.Sandeep Deshmukh, advocate holding for Mr.M.S.Deshmukh, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. for Respondents No.1 & 3. Mr.M.N.Navandar, advocate for Respondent No.2.

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WITH

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(3) WRIT PETITION NO.8900 OF 2010

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Gorakh s/o Uttam Thakur,

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age: 22 years, Occ: Nil, R/o Malpur, Tq.Sindhkheda, District Dhule.

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Petitioner

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Versus

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1 The State of Maharashtra, through its Secretary, Home Department, Mantralaya, Mumbai.

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2 The Commissioner of Police, Navi Mumbai (Maharashtra).

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3 The Committee for Scrutiny & Verification of Tribe Claims, Nandurbar Division, Nandurbar. Respondents

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Mr.S.R.Barlinge, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. For Respondents.

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WITH

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(4) WRIT PETITION NO.7740 OF 2010

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Gajendra Bhaskar Thakur, age: 24 years, Occ: Nil, R/o Yawal, Tq. Yawal, District Jalgaon.

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Versus

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1 The State of Maharashtra,

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through its Secretary, Tribal Development Department, Mantralaya, Mumbai.

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2 The Commissioner of Police, Thane City, Thane, Tq. & District Thane.

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3 The Additional Commissioner of Police, (Administration), Thane City,

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Tq. & District Thane.

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4 The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, through its Chief Executive Officer.

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5 The State of Maharashtra, through Principal Secretary, General Administration Department, Mantralaya, Mumbai-32.

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Mr.V.B.Patil, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. For Respondents.

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WITH

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(5) WRIT PETITION NO.7737 OF 2010

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Someshwar Waman Thakur,

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age: 21 years, Occ: Nil, R/o At Post Nardhana, Behind Rest House, Tq.Sindhkheda, District Dhule.

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Petitioner

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Versus

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1 The State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai.

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2 The Commissioner of Police, Thane City, Thane, Tq. & District Thane.

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3 The Additional Commissioner of Police, (Administration), Thane City,

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Tq. & District Thane.

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4 The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, through its Chief Executive Officer.

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5 The State of Maharashtra,

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through Principal Secretary, General Administration Department, Mantralaya, Mumbai-32.

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Mr.V.B.Patil, advocate for the petitioner.

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Mrs.A.V.Gondhalekar, A.G.P. For Respondents.

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WITH

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(6) WRIT PETITION NO.7722 OF 2010

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Mahesh Girdhar Thakur,

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age: 20 years, Occ: Nil, R/o Betawad, Tq.Sindhkheda,

District Dhule.

Petitioner

Versus

1 The State of Maharashtra,

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through its Secretary, Tribal Development Department, Mantralaya, Mumbai.

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2 The Commissioner of Police, Thane City, Thane, Tq. & District Thane.

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3 The Additional Commissioner of Police, (Administration), Thane City,

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Tq. & District Thane.

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4 The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, through its Chief Executive Officer.

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5 The State of Maharashtra,

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through Principal Secretary, General Administration Department, Mantralaya, Mumbai-32.

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Mr.V.B.Patil, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. For Respondents.

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WITH

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(7) WRIT PETITION NO.5619 OF 2011

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Amol s/o Suresh Thakur,

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age; 32 years, Occ: Nil, R/o A/P Songir, Tal. & Dist. Dhule. Petitioner

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Versus

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1 The State of Maharashtra,

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through its Principal Secretary,

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General Administration Department, Mantralaya, Mumbai-32.

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2 The Committee for Scrutiny and Verification of Tribe Claims, through its Dy. Director (Research), Nandurbar.

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3 The Divisional Controller,

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Maharashtra State Road Transport

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Corporation (M.S.R.T.C.),

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N.D.Patel Road,

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Shingada Talav, Nasik, District Nasik.

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Mr.A.H.Koralkar, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. for Respondents No.1 & 2.

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WITH

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(8) WRIT PETITION NO.2108 OF 2011

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Ravindra Magan Thakur, age: 26 years, Occ: Nil, R/o Plot No.18, Ramsing Nagar, Shirpur, Tq.Shirpur, District Dhule.

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Petitioner

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Versus

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1 The State of Maharashtra, through its Principal Secretary, General Administration Department, Mantralaya, Mumbai.

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2 The State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai.

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3 The Commissioner of Police, Thane City, Thane, Tq. & Dist. Thane.

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4 The Additional Commissioner of Police, (Administration), Tq. & Dist. Thane.

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5 The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, through its Chief Executive Officer.

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Respondents

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Mr.V.B.Patil, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. For Respondents.

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WITH

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(9) WRIT PETITION NO.2030 OF 2010

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Bharat Lotan Thakur, age: 21 years, Occ: Nil, R/o At Post Pimprala, Shankarappa Nagar, Plot No.9/10, Near Hanuman Temple, Jalgaon, District Jalgaon.

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Petitioner

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Versus

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1 The State of Maharashtra, through its Principal Secretary, General Administration Department, Mantralaya, Mumbai.

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2 The State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai.

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3 The Commissioner of Police, Thane City, Thane, Tq. & Dist. Thane.

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4 The Additional Commissioner of Police, (Administration), Tq. & Dist. Thane.

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5 The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, through its Chief Executive Officer. Respondents

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Mr.V.B.Patil, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. For Respondents.

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WITH

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(10) WRIT PETITION NO.2029 OF 2011

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Pravin Jaisingh Wankhede, age: 24 years, Occ: Nil, R/o 136, Ektanagar, Biladi Road, Deopur, Dhule, District Dhule.

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Petitioner

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Versus

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1 The State of Maharashtra, through its Principal Secretary, General Administration Department, Mantralaya, Mumbai.

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2 The State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai.

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3 The Commissioner of Police, Thane City, Thane, Tq. & Dist. Thane.

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4 The Additional Commissioner of Police, (Administration), Tq. & Dist. Thane.

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5 The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, through its Chief Executive Officer.

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Respondents

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Mr.V.B.Patil, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. For Respondents.

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WITH

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(11) WRIT PETITION NO.1117 OF 2011

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Dipak s/o Pratapsing Bagul, age: 26 years, Occ: Nil, R/o C/o C.P.Sonar, Matoshri, Plot No.110, Income Tax Colony, Nakane Road, Deopur, District Dhule 424 002.

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Petitioner

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Versus

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1 The State of Maharashtra, through its Principal Secretary, General Administration Department, Mantralaya, Mumbai-32.

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2 The Committee for Scrutiny and Verification of Tribe Claims, through its Dy. Director (Research), Nandurbar.

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3 The Chief General Manager (Tech), Maharashtra State Power Generation Co.Ltd., Estrella Batteries, Expn.Bldg., Dharavi Road, Matunga, Mumbai 400 019.

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Mr.A.H.Koralkar, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. for Respondents No.1 & 2. Mr.S.M.Godsay, advocate for Respondent No.3.

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WITH

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(12) WRIT PETITION NO.220 OF 2011

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Raghunath Ramdas Thakur, age: 30 years, Occ: Nil, R/o Local Residence of Ranjangaon, Tq.Chalisgaon, District Jalgaon,

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at present at Post Anakwade, Yeola Road, Manmad, Tq.Nandgaon, District Nasik.

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Petitioner

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Versus

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1 The State of Maharashtra, through its Principal Secretary, General Administration Department, Mantralaya, Mumbai.

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2 The State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai.

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3 The Commissioner of Police, Nashik City, Nashik, District Nashik.

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4 The Additional Commissioner of Police, Head Quarter, Nashik, District Nashik.

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5 The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, through its Chief Executive Officer.

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Respondents

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Mr.V.B.Patil, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. for Respondents.

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WITH

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(13) WRIT PETITION NO.219 OF 2011

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Nitin s/o Shriram Thakur, age: 24 years, Occ: Nil, R/o At Post Savai Mukti,

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Tal. Shinkeda, Dist.Dhule, At prsent Vartak Nagar, Police Line, Bldg.No.52B, Thane, District Thane.

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Petitioner

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Versus

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1 The State of Maharashtra, through its Principal Secretary, General Administration Department, Mantralaya, Mumbai-32.

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2 The Committee for Scrutiny and Verification of Tribe Claims, through its Dy. Director (Research)m Nandurbar.

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3 The Executive Engineer, Maharashtra State Distribution Co.Ltd., Wagle Estate, Thane, District Thane- 400 604.

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Respondents

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Mr.A.H.Koralkar, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. For Respondents No.1 & 2.

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WITH

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(14) WRIT PETITION NO.5864 of 2010

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Prashant s/o Shirish Thakur, age: 23 years, Occ: Education, R/o 30, `Bhagai’, Dena Nagar, Bhusawal, Tq. Bhusawal, District Jalgaon, at present R/o 14, Saichaya, Row House, Wadje Mala, Dindori Road, Nashik.

Petitioner

Versus

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1 Scheduled Tribe Certificate

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Scrutiny Committee, Nandurbar Division, Nandurbar,

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through its Member Secretary.

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2 Zilla Parishad, Nashik Division, Nashik, through its Chief Executive Officer.

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3 The State of Maharashtra, through Principal Secretary, General Administration Department, Mantralaya, Mumbai-32.

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Respondents

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Mr.S.S.Phatale, advocate holding for Mr.M.S.Deshmukh, advocate for the petitioner.

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Mrs.A.V.Gondhalekar, A.G.P. for Respondents No.1 & 3. Mr.K.G.Patil, advocate for Respondent No.2.

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WITH

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(15) WRIT PETITION NO.10363 OF 2010

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Manoj s/o Vithal Thakur,

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age: 29 years, Occ: service, R/o Hirapur road, Thakurwadi, Behind Vishwas Bakery Chalisgaon, District Jalgaon.

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Petitioner

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Versus

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1 The State of Maharashtra,

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through its Secretary,

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Tribal Development Department, Mantralaya, Mumbai-32.

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2 The Committee for Scrutiny and

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Verification of Tribe Claims, Nandurbar Region, Nandurbar.

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3 The Secretary, General Administration Department, Mantralaya, Maharashtra State, Mumbai.

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4 Vivekanand Shikshan Sanstha, through its President, Aurangabad.

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Respondents

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Mr.S.R.Barlinge, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.G.P. for Respondents No.1 & 2. Mr.A.D.Choudhary, advocate holding for Mr.D.J.Choudhary, advocate for Respondent No.4.

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CORAM : B.R.GAVAI AND

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M.T.JOSHI, JJ. DATE : 25th August, 2011

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ORAL JUDGMENT (Per B.R.Gavai, J.):

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1 Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.

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2 The petitioners have impugned condition no. 7 of the Government Resolution dated 5^th November, 2009.

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3 All the petitioners, who are claiming to be belonging to

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different Scheduled Tribes, are seeking employment under the various employers which are either the State or the instrumentalities of the State. The petitioners are possessing requisite certificates certifying that they belong to the Scheduled Tribe. The petitioners claims for considering validity of their caste claim of belonging to the Scheduled Tribe, are pending before the Scheduled Tribe Certificate Scrutiny Committees at different places.

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4 The petitioners are basically aggrieved by condition no. 7 of the said Government Resolution which prevents an appointment or promotion to a candidate belonging to backward class unless he possesses the validity certificate.

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5 Shri Sandeep Deshmukh, learned Counsel appearing on behalf of one of the petitioners and other learned Counsel appearing on behalf of the petitioners, submit that the said condition is totally untenable. It is submitted that the period, within which the caste validity certificate is to be issued, is not in the hands of the petitioners. It is submitted that it is exclusively within the domain of the Scrutiny Committee as to when the caste validity certificate is to be issued. It is, therefore, submitted that the impugned condition in the said Government Resolution is totally unreasonable thereby depriving the rights of the persons like petitioners who are seeking employment on the basis of their

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Constitutional rights of reservation.

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6 The learned Counsel also submit that the impugned condition is also in breach of the provisions of sub-section (3) of Section 6 of 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. The learned Counsel further submit that the guideline is also contrary to the directions issued by the Apex Court in the matter of Kumari

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Madhuri Patil Vs. Additional Commissioner, Tribal Development , reported in AIR 1995 SC 94.

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7 The learned Counsel further rely on the judgment of the Division Bench of this Court in the case of Dadasaheb Arjun Gulve Vs. State of Maharashtra & others , reported in 2008 (2) Bom. C.R. 712.

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8 The learned A.G.P. vehemently opposes the petitions. It is submitted that the said condition has been imposed with an objective that no person, who is belonging to the reserved category should get the benefit of reservation. It is, therefore, submitted that the petitions are liable to be dismissed.

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9 The Division Bench of this Court had an occasion to

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consider the provisions in various Municipal laws, so also the Zilla Parishads and Panchayat Samities Act, Village Panchayats Act, which provided that if a candidate from reserved category did not produce the caste validity certificate within a period of four months, he shall stand disqualified. The Court was considering the question, as to whether the said period of four months has to be held as directory or mandatory. The Division Bench, after observing that, as to within how much period the caste validity certificate has to be submitted by a candidate was not within the domain of the petitioners, held the provision to be directory.

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10 We cannot refuse to take judicial notice of the fact that whenever either of us has sat on the Division Benches assigned to hear writ petitions, on every day there have been at least a dozen cases pertaining to the orders / inactions on the part of the Scrutiny Committees constituted under the said Act. On number of occasions, directions have to be issued to the said Committees to decide the matters within a stipulated period. We have come across the cases wherein the Scrutiny Committees have not decided the matters pending before it for years together. We have come across various cases wherein the orders have been passed with a totally mechanical approach by non application of mind and on various occasions, the Courts are required to remand the matters to the Committee for consideration afresh.

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11 The Division Bench of this Court, to which one of us ( Gavai, J .) was party, vide order dated 22.10.2010, by ad interim orders in W.P. No.5340 of 2010 & other companion matters, had directed that the selection of the petitioners will not be cancelled on the ground that they have not produced the validity certificates.

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12 Another Division Bench of this Court, to which also one of us ( Joshi, J .) was the party, taking into consideration that the aforesaid condition will lead to a peculiar situation where a candidate would have to wait for years together to obtain orders from the Caste Scrutiny Committee and would lose his right to appointment, had directed the State to file an affidavit indicating the number of cases pending before each of the Committee. The Court had also directed the State to file an affidavit indicating as to whether the State proposes to set up new Committees for deciding the tribe claims.

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13 In pursuance to the directions issued by this Court dated 6^th July 2011, an affidavit has been filed by one Sunil Namdeo Rankhambe, Deputy Secretary, Government of Maharashtra, General Administration Department. The total number of Committees and the matters pending have been given in paragraph 2 of the said affidavit, which reads thus:

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Sr.No.	Scheduled Tribe Certificate Verification and Scrutiny Committee at	Number of pending cases as on 1.8.2011
1	Pune	1047
2	Nashik	8748
3	Nagpur	1508
4	Thane	4209
5	Aurangabad	2479
6	Amravati	1731
7	Nandurbar	4757
8	Gadchiroli	2431
	Total	26900

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It could, thus, be seen that on 1^st August 2011, there are 26900 matters pending before eight Scrutiny Committees. The said officer, in the said affidavit, states thus:

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“All possible endeavours are intended to be made to achieve clearance of pending cases up to the end of September 2011.”

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14 We are of the view that the said statement has been made by the said officer under an impression that the members of the Committees are possessed with some divine powers which would permit them to clear 26900 cases in one month. The said task is humanly impossible. The experience shows that the Committees, at times, take decades to decide the matter and in some cases the matter is required to be remanded on one or on number of occasions. One of the instances would be the petitioner

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in Writ Petition No.5340 of 2010, whose claim is pending before the Committee right from 2002.

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15 No doubt, that the purpose of the said condition is with a noble aim of ensuring that the reserved seat should be occupied by a candidate belonging to that particular reserved category and no candidate or person, not belonging to reserved category, should usurp the said post. However, at the same time, the Court cannot ignore the fact that it is not in the hands of the candidates to obtain the certificate before they appear for interview or apply for a particular post. If the the impugned condition is upheld, an eventuality cannot be ruled out that a candidate will have to wait till he reaches the maximum age to apply for the post and is given the validity certificate after he becomes age bar. In such a situation, a candidate belonging to a particular backward class, would be deprived of availing the benefits, though, in law, he is entitled to.

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16 It is a settled principle of law that a party cannot be asked to do an impossible act. Reference, in this respect, can be made to a judgment of the Apex Court in the matter of Mohammed Gazi Vs. State of M.P. & others , reported in 2000 (3) SCALE 6.

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17 In any case, if any candidate’s claim is subsequently

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invalidated, the law has taken care for the same. Sub-section (1) of Section 10 of the said Act provides that:

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10 Benefits secured on the basis of false Caste Certificate to be withdrawn .-

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(1) Whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category, secures admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or secures any appointment in the Government local authority or in any other Company or Corporation, owned or controlled by the Government or in any Government aided institution or Co-operative Society against a post reserved for such Castes, Tribes or Classes by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed or derived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith.

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If an ineligible candidate, who is appointed on the post reserved for reserved category, is found to be not belonging to that category and his caste claim is invalidated, his services will be liable to be terminated forthwith and he shall stand discharged

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from the services.

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18 In that view of the matter, we find that the said condition is totally unreasonable and as such, liable to be struck off. Hence the following order:-

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(i) We allow the petitions and hold that condition no.7, in Government Resolution dated 5^th November 2009, is unreasonable and, therefore, is struck off.

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(ii) Since it is not in dispute, that all the petitioners are duly selected against a post reserved for particular reserved category, we direct the Respondent-employers to forthwith issue provisional appointment orders in favour of the petitioners, which shall be subject to validation of their caste / tribe claims. The same shall be done within a period of one month from today.

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(iii) The respective Respondent-Scrutiny Committees are directed to decide claim of the petitioners as expeditiously as possible and in any case, within a period of six months from

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today.

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(iv) It is directed that no coercive action shall be taken against the petitioners on the ground of non submission of validity certificate till the Respondent-Committees decide claims of the petitioners.

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(v) It is further directed that in the event any order adverse to the interest of the petitioners is passed by the Respondent-Committees, the same shall not be given effect for a period of four weeks from the date of receipt of communication by the petitioners.

¶246

19 Rule is made absolute in above terms with no order as

to costs.

M.T.JOSHI JUDGE

B.R.GAVAI JUDGE

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Shrikant Chandrakant Saindane v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Shrikant Chandrakant Saindane v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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