Allowed

Mahesh Dadarao Suryawanshi v. the State of Mah and Ors.

Bombay HC25 Jun 2014WP/4535/2011

Case brief

AI extract

What is this about?

The High Court dismissed two writ petitions challenging caste certificate scrutiny decisions. It held that migrant petitioners belonging to a Scheduled Caste recognized in both Maharashtra and Karnataka are entitled to reservation benefits. The Court quashed the Committee's order and cancelled fraud allegations based on document translation.

What did the court decide?

Impugned orders dated 15th February, 2011 and cancellation of A-9545 dated 20th May, 2009 are set aside. Committee directed to issue/re-issue caste validation certificates. Civil Application disposed

Mahesh Dadarao Suryawanshi Vs the State of… — Pension and Retirement Benefits | Bombay HC (2014)

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THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. APPELLATE SIDE JURISDICTION

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WRIT PETITION NO. 4535 OF 2011

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Mahesh s/o Dadarao Suryawanshi, Age 19 years, Occu : Education, R/o. Labour Colony, Latur, District Latur.

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... PETITIONER

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V E R S U S

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The State of Maharashtra, Through its Secretary, Social Welfare Department, Mantralaya, Mumbai – 32.

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SC, VJNT, OBC and SBC Divisional Caste Certificate Scrutiny Committee, Latur, Division at Latur-2.

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The Principal, College of Computer Science and Information Technology, Ambajogai Road, Latur.

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The Registrar, Swami Ramanand Teerth Marathwada University, Vishnupuri, Nanded.

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... RESPONDENTS

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A N D WRIT PETITION NO. 7029 OF 2011 W I T H

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CIVIL APPLICATION NO. 4967 OF 2013

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Dattatraya s/o Dadarao Suryawanshi, Age 21 years, Occu : Education, R/o. Labour Colony, Latur, District Latur.

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... PETITIONER

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V E R S U S

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The State of Maharashtra, Through its Secretary, Social Welfare Department, Mantralaya, Mumbai – 32. 2. SC, VJNT, OBC and SBC Divisional Caste Certificate Scrutiny Committee, Latur, Division at Latur-2. 3. The Principal, Vishwakarma Institute of Information Technology, S. No.2/3/4 Kondhwa [Bk.] Pune. 4. The Registrar, University of Pune, Ganesh Khind, Pune – 07. 5. The Director of Technical Education Department, Mumbai. ... RESPONDENTS ----Mr. S.P.Urgunde, Advocate for the Petitioner. Mrs. S.G.Chincholkar, AGP for Respondent No.1 Mr. K.D.Bade Patil, Advocate for Respondent No.2 Mr. G.K.Thigle Naik, Advocate for Respondent No.3 -----

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CORAM : R. M. BORDE and V. L. ACHLIYA, JJ. DATE : 25^th June, 2014.

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JUDGMENT: ( Per V.L. Achliya, J. )

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1 Heard.

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2 Rule. Rule made returnable forthwith. With the consent of

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the learned counsel appearing for the parties, both these petitions are

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taken up for final disposal at admission stage.

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3 The Petitioners in both these petitions have challenged the order dated 15^th February, 2011 passed by Respondent No.2 – Caste Scrutiny Committee, Latur, whereby the Committee has invalidated the caste certificate of the Petitioner in Writ Petition No.7029 of 2011 mainly on the ground that the parents of Petitioners were originally residents of District Bidar (Karnataka) and in exercise of suo moto powers of review, recalled its earlier order validating the caste certificate issued in favour of the Petitioner in Writ Petition No.4535 of 2011.

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4 In brief, the facts leading to filing of these petitions are as

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under:

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A. The Petitioners in both these petitions are real brothers and claim to be belonging to Nav Boudha, a caste, which is recognized as Scheduled Caste in the State of Maharashtra.

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B. The Petitioner in Writ Petition No.7029 of 2011, who secured admission in four years degree course in Engineering in Respondent No.3 – College from Scheduled Caste category, submitted his caste certificate for validation to Respondent No.2 – Committee. In support of his claim, the Petitioner has submitted number of documents, which include school record in respect of himself and his father wherein, the caste of the Petitioner is mentioned as Nav Boudha. Beside the school record, the Petitioner has also submitted some document

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relating to his great-grand-father showing him resident of State of Maharashtra. The Petitioner has also submitted the documents in respect of his brother, which includes the caste validation certificate issued in his favour by Respondent No.2 – Committee. The Respondent No.2 – Committee after obtaining the report from the Vigilance Committee and considering the documents relied by the Petitioner in support of his claim, rejected the claim of the Petitioner on the ground that the Petitioner has failed to prove that the Petitioner and his forefather were resident of Maharashtra prior to 10^th August, 1950. Being aggrieved by the said order, the Petitioner has challenged the impugned order dated 15^th February, 2011 passed by Respondent No.2 – Committee on various grounds as set out in the petition.

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C. The Petitioner in Writ Petition No.4535 of 2011, has filed petition challenging the impugned order dated 15^th February, 2011 passed by Respondent No.2 – Caste Scrutiny Committee cancelled the caste validation certificate issued in his favour by order dated 20^th May, 2009, in exercise of its suo moto powers of review by observing that the Petitioner has practiced fraud in obtaining the validation certificate and recalled its earlier order granting validation certificate.

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The Petitioner, who acquired admission to four year B.E. degree course in Engineering from Scheduled Caste Category in Respondent No.3 college, submitted his caste certificate for validation with Respondent No.2 – Caste Scrutiny Committee. The Committee, after following due procedure for inquiry, issued caste validation certificate bearing No.A-9545 in favour of said Petitioner vide its order dated 20^th May, 2004. Without any inquiry and service of report of vigilance inquiry all of sudden issued show cause notice to Petitioner calling upon him to show cause as to why the caste validity certificate issued in his favour may not be cancelled. The Petitioner has responded to said notice and also produced documents showing the residence of his forefather in State of Maharashtra. However, the committee has passed the impugned order and cancelled the caste validation certificate issued to Petitioner. Being aggrieved by said order, the Petitioner has filed Writ Petition No.4535 of 2011 on various grounds as set out in petition.

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5 We have heard the learned counsel appearing for the respective parties and perused the record and proceedings.

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6 If we consider the overall pleadings of the parties and the

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impugned order passed by Respondent No.2 – Committee, then the fact is not in dispute that both the Petitioners belong to Nav Boudha caste, which is recognized as Scheduled Caste in the State of Maharashtra as well as in the State of Karnataka. The Caste Scrutiny Committee has rejected the claim of the Petitioner in Writ Petition No.7029 of 2011 mainly on the ground that the Petitioner has failed to produce satisfactory evidence to establish that the Petitioner, his father and forefathers were resident of State of Maharashtra prior to 10^th August, 1950. It is, therefore, necessary to examine the matter from the limited point of view as to whether such reasons and findings are sustainable in law.

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7 We have perused the record and proceedings and more particularly, the order passed by the Caste Scrutiny Committee. We are of the view that the reasons and findings recorded by the Caste Scrutiny Committee to refuse to validate the caste claim of the Petitioner in Writ Petition No.7029 of 2011 and recall its earlier order granting validation certificate in favour of the Petitioner in Writ Petition No.4535 of 2011, is not sustainable in law. Respondent No.2 – Committee in its order dated 15^th February, 2011 has observed that prior to 1982-83, the father of the Petitioners was resident of village Kamalnagar, Taluka Aurad, District Bidar (State of Karnataka) and therefore, concluded that the Petitioners have failed to produce satisfactory evidence to establish that Petitioners and their forefather were resident of State of Maharashtra prior to 10^th August, 1950. The Committee has accepted the evidence produced by the Petitioners showing that their father was born in the year 1959 and prosecuted study initially in a school at village Kamalnagar, Taluka Aurad, District Bidar (State of Karnataka) and later

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on studied in a school at village Balur, Taluka Aurad, District Bidar (State of Karnataka). The fact to this effect is also supported by the report of the Vigilance Officer obtained by the Caste Scrutiny Committee. It is observed by the Vigilance Officer in his report that the family of the Petitioners was originally resident of Bidar District (Karnataka) and migrated from State of Karnataka to State of Maharashtra for the purpose of education. The Vigilance Officer has also observed that as per school record the caste of the father of the Petitioners recorded as “Harijan” and “Mahar”. The father of the Petitioners appeared before the Committee and supported the caste claim of Petitioners. The father of the Petitioners also produced some documents to show that the great-grand-father of the Petitioners was resident of Latur in the State of Maharashtra prior to 10^th August, 1950. However, the Committee has refused to place reliance on those documents on the ground that the documents are unregistered.

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8 In view of the undisputed position that the Petitioners belong to Nav Boudha caste, which is recognized as Scheduled Caste in both the State of Maharashtra and Karnataka, the limited issue falls for our consideration is whether the Petitioners, whose father and forefathers were earlier resident of Kamalnagar, Taluka Aurad, District Bidar (now part of State of Karnataka) before reorganization of the State and formation of State of Maharashtra and migrated to newly formed State of Maharashtra, are entitled to claim benefits of reservation. This issue is no more res-integra, in view of the decision of the Apex Court in the case of Sudhakar Vitthal Vs. State of Maharashtra , reported in [ 2004 (4) Mh.L.J. 784 ] and subsequent decision of this court in the case of Preeti Gopalrao Kamble Vs. State of Maharashtra and

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others , reported in [ 2013 (2) Mh.L.J. 317 ] . In the case of Preeti Gopalrao Kamble (supra), the Division Bench of this Court after referring the decision of the Apex Court in the case of Sudhakar Vitthal (supra), has observed in paragraph Nos.10, 11 and 12 as under:

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“ 10. In view of judgment of the Supreme Court in Sudhakar’s case, a migrant belonging to a community which was recognised as Scheduled Caste or Scheduled Tribe in any locality, which has been divided upon reorganization of States, the migrant would be entitled to the benefits of reservation even in the State, in which part of locality other than his place of origin, has been included.

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11. In the instant matter, parents of the petitioners originally belong to Bider district. The part of the locality, to which petitioners belong, has been included in District Bider, which is presently included in the State of Karnataka, was part of erstwhile State of Hyderabad. The part of State of Hyderabad comprising of Marathwada region has been included in the State of Maharashtra after reorganization. The locality, to which petitioners originally belong, is predominantly Marathi speaking locality which forms part of bordering region of State of Karnataka. The State of Maharashtra has put forth claim in respect of 865 disputed villages which presently forms part of State of Karnataka. Not only this, the State of Maharashtra has extended benefits to the residents of those bordering villages in the matter of education and employment in the State of Maharashtra.

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12. In this view of the matter and considering the legal position emerging from the judgment of the Apex Court in the matter of Sudhakar (cited supra), we are of the considered opinion that Respondent No.2Committee had fallen in error in invalidating caste claims of the petitioners only on the ground that original place of residence of parents of the petitioners presently forms part of State of Karnataka. Both the petitions, therefore, deserves to be allowed.”

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The decision in the case of Preeti Gopalrao Kamble (supra) is squarely applicable to the case of the petitioners as the facts of the case and legal issue involved are almost identical.

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9 In support of the contentions of the Petitioners that they belong to “Nav Boudha”, a caste included as Scheduled Caste at serial No.37 in the Presidential order issued in the year 1950, the Petitioners have submitted the genealogy and also filed number of documents supporting their claim, which include the documents of the period prior to 1950. The Petitioners claim to be originally resident of village Kamalnagar, Taluka Aurad, District Bidar (Karnataka). The name of village Kamalnagar, Taluka Aurad, District Bidar is shown at serial No.76 in the list of 865 villages notified by the State of Maharashtra as disputed villages on which the State of Maharashtra has made claim, the copy of which is part of Government Resolution dated 10^th July, 2008. In the documents relied, in support of the claim of the Petitioners that they are Nav Boudha and falls within the category of Scheduled Caste, they have produced large number of documents in the form of

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school record as that of their father and other relations. The Respondent No.2 – Caste Scrutiny Committee has not doubted their say that they belong to Nav Boudha a caste recognized as Scheduled Caste. The claim has been rejected solely on the ground that the Petitioners have failed to produce documents showing their residence within the State of Maharashtra on and before 10^th August, 1950. The ground on which the Committee has passed the impugned order and refused to validate the caste claim of the Petitioners, is not sustainable for the sole reason that the view adopted by the Caste Scrutiny Committee is erroneous and contrary to settled position in law as discussed in foregoing paras. It is settled position in law that the Marathi speaking persons belonging to Nav Boudha caste, which is recognized as Scheduled Caste in State of Maharashtra as well as Karnataka having their origin in the region of Bidar District, a part of which on State Reorganization have come to State of Maharashtra whereas part is included in the State of Maharashtra are entitled to claim benefits of reservation in State of Maharashtra in the matter of admission as well as employment if migrated to State of Maharashtra.

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10 Having regard to the fact that the Petitioners have produced documents to show that they belong to Nav Boudha caste, which is recognized as Scheduled Caste in the State of Maharashtra as well as in the State of Karnataka and they are migrated to State of Maharashtra from Bidar District, the Committee should not have refused to validate the caste claim of the Petitioners. We are, therefore, of the view that the reasons assigned by the Committee in refusing to invalidate the claim of the Petitioner in Writ Petition No.7029 of 2011 and cancellation of certificate of validation issued in favour of the

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Petitioner in Writ Petition No.4535 of 2011 in suo moto exercise of the powers of review by the Committee are not sustainable, both on facts and in law.

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11 In our view the order passed by Respondent No.2 – Caste Scrutiny Committee in the matter of Petitioner in Writ Petition No.4535 of 2011 to recall its earlier order dated 20^th May, 2009 and invalidate the caste certificate issued in favour of the Petitioner, is not sustainable in law for the sole reason that the reasons for which Respondent No.2 – Committee has passed the order cannot be accepted as valid reason to pass such order. In the impugned order, the Committee has observed that the Petitioner has practiced a fraud upon the Committee in getting the caste certificate validated. The Committee has observed that the Petitioner has produced and relied on the extract of school admission register in respect of admission of his father in V^th Standard, recorded at serial No.2554 on 5^th June, 1971 in order to validate his caste claim. The Petitioner has produced the copy of said extract translated into Marathi language. During the Vigilance Inquiry, the Vigilance Officer has found that though the original entries in the school admission register in respect of admission of father of the Petitioner are in Kannada and English language, but the Petitioner has produced the copy of same translated into Marathi language. The Caste Scrutiny Committee has treated the said act of the Petitioners i.e. to produce translated copy of extract of the school register, as an act amounting to fraud upon the Committee in getting the caste certificate validated in his favour vide order dated 20^th May, 2009. In our view, the act of the Petitioner to produce a translated copy of the school admission register, the contents of which in original register are in English and Kannada

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language, noway amounts to act of practicing fraud upon the Committee, so as to invite such action of cancellation of validation certificate issued in his favour. It is nowhere the say of the Vigilance Officer that the translated contents of the extract of the admission register produced by the Petitioner, partially or materially differs from the contents of the original school admission register pertaining to admission of his father. The act of getting the document written in English and Kannada language to be translated into Marathi language to facilitate the Committee to understand the contents of the same, cannot be treated as an act amounting to forgery, fabrication of record or any act to be termed as act of fraud. After conducting Vigilance Inquiry, if the Vigilance Officer would have come to conclusion that said document produced by the Petitioner before the Committee when compared with the original found to be materially tampered or not tallied with the contents of original record and such act was committed with intention to gain some benefit by the Petitioner, then certainly such act of the Petitioner, would have been termed as fraud practiced upon the Committee to secure the favourable order of validation of caste claim. In absence of any report to this effect, the Committee has grossly erred in treating the said act of the Petitioner as an act amounting to practicing fraud upon the Committee in securing the validation certificate.

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12 A fraud is an act of deliberate deception with design of securing something by taking unfair advantage of another. In other words, it is an act of cheating intended to get an advantage. Only for the reason that Petitioner has produced an extract of school admission register after translating it in Marathi language to facilitate the

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Committee to understand the contents of the documents while considering his case for validation of his caste claim on that basis, no act of any dishonest intention or taking unfair advantage can be attributed to the Petitioner to treat the same as an act amounting to practicing fraud upon the Committee. It is nowhere the case of Respondent No.2 – Committee that the contents of the translated copy of the school admission register produced before the Respondent No.2 – Committee at the time of validation of the caste claim of the Petitioner found to be materially different than the original school admission register. We are, therefore, of the view that the order passed by Respondent No.2 – Caste Scrutiny Committee in suo moto exercise of its power to review its earlier order dated 20^th May, 2009 validating the caste claim of the Petitioner in Writ Petition No.4535 of 2011 and further passing of order of cancellation of the Caste Validity Certificate No.A9545 dated 20^th May, 2009 issued in favour of said petitioner, is not sustainable both on facts and in law and liable to be quashed and set aside.

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13 In view of the discussion made in the forgoing paras and the conclusions to which we have arrived, the writ petitions filed by the Petitioners deserve to be allowed and the order passed by Respondent No.2 – Caste Scrutiny Committee dated 15^th February, 2011 deserves to be quashed and set aside. Hence, we pass the following order:

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I. The order dated 15^th February, 2011 passed by Respondent No. 2 – Caste Scrutiny Committee, Latur invalidating the caste certificate of Dattatraya s/o Dadarao Suryawanshi, Petitioner in Writ Petition No.7029 of 2011, is set aside.

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The Respondent No.2 – Committee is directed to issue caste validation certificate in favour of Petitioner.

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II. The order passed by Respondent No.2 – Caste Scrutiny Committee, Latur in the matter of Mahesh s/o Dadarao Suryawanshi, the Petitioner in Writ Petition No.4535 of 2011 cancelling the Caste Validity certificate bearing No.A-9545 issued on 20^th May, 2009 in exercise of suo moto powers of review by Respondent No.2, is set aside. The Respondent No.2 is directed to forthwith re-issue certificate of validation in favour of said Petitioner.

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III. Rule is made absolute in both the petitions, in above terms. In the circumstances, no order as to costs.

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IV. In view of disposal of both the writ petitions, pending Civil Application No.4967 of 2013 in Writ Petition No.7029 of 2011 does not survive and same stands disposed of.

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[ V. L. ACHLIYA, J. ]

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[ R. M. BORDE, J. ]

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ndm

Mahesh Dadarao Suryawanshi v. the State of Mah and Ors.

Case brief

What is this about?

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Mahesh Dadarao Suryawanshi v. the State of Mah and Ors.

Case brief

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