Dismissed

Smt. Pushpalata Dekate v. Union of India

Chhattisgarh HC8 Mar 2018WPS/6006/2007

Case brief

AI extract

What is this about?

Petitioner, an Assistant Fisheries Officer appointed against a Scheduled Tribe post, challenged the invalidation of her Halba caste certificate and the consequent denial of reservation benefits. The court held that Scheduled Tribe status is conferred in relation to a particular State under Articles 341 and 342, that her forefathers' Amravati District fell outside Madhya Pradesh after the 1956 reor

What the court decided

AI extract

Smt. Pushpalata Dekate Vs Union of India — Service and Employment | Chhattisgarh HC (2018)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No.6006 of 2007

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Smt. Pushpalata Dekate W/o Shri Rajendra Dekate, Aged About 36 Years Occupation Assistant Fisheries Officer, Department Of Fisheries Training Institute, Raipur, Raipur, Chhattisgarh, R/o G-2/23, E. A. C. Colony, Collectorate, Raipur, Chhattisgarh

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---- Petitioner

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Versus

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Union Of India Through Secretary, Department Of Personnel And Training, Ministry Of Home, New Delhi

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State Of Chhattisgarh, Through The Secretary, Scheduled Castes And Scheduled Tribes Development Department, D. K. S. Bhawan, Mantralaya, Raipur, Chhattisgarh, District : Raipur, Chhattisgarh

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The Secretary, Government Of Chhattisgarh, General Administration Department, D. K. S. Bhawan, Mantralaya, Raipur, Chhattisgarh , District : Raipur, Chhattisgarh

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Caste Certificate High Level Scrutiny Committee, Through Its Member Secretary Cum Commissioner, Tribal And Scheduled Caste Development, Pandit Ravishankar Shukla University Campus, Raipur, Chhattisgarh, District : Raipur, Chhattisgarh

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Secretary, Government Of Chhattisgarh Department Of Agriculture Fisheries D. K. S. Bhawan, Mantralaya, Raipur, Chhattisgarh , District : Raipur, Chhattisgarh

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Collector, Raipur District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh

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Collector, Rajnandgaon, District Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh

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---- Respondents

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WP No. 5671 of 2006

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Smt. Pushpalata Dekate, aged about 35 years, W/o Shri Rajendra Dekate, Caste Halba, Working as Assistant Fisheries Officer, Department of Fisheries, Training Institute Raipur, Chhattisgarh, R/o C-11, Vishal Nagar, Raipur Chhattisgarh

---- Petitioner

Versus

State Of Chhattisgarh, Through The Secretary, Department of Fisheries, D. K. S. Bhawan, Mantralaya, District : Raipur, Chhattisgarh

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Director, Directorate of Fisheries, Telibandha, Raipur Chhattisgarh

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Collector, Rajnandgaon, Chhattisgarh

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Assistant Director, Department of Fisheries, Rajnandgaon, Chhattisgarh

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Sub Divisional Officer (Revenue), Rajnandgaon, Chhattisgarh

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----- Respondents

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For Petitioner : Shri R. S. Marhas with Shri Aman Tamboli, Advs. For Respondent/State : Shri S. Majid Ali, Dy.GA For Respondent/UOI : Shri Rajkumar Gupta, Advocate

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Hon'ble Shri Justice Manindra Mohan Shrivastava

Order On Board

08/03/2018

Heard.

The aforesaid two petitions are being disposed off by this common order as the petitions are by the same petitioner and both the petitions involve determination of core issue as to the petitioner's status and entitlement to the benefit of reservation in the then State of Madhya Pradesh (now State of Chhattisgarh).

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The petitioner applied for and are granted caste certificate on 09-11-1992 by the Nayab Tahsildar, Rajnandgaon. The caste certificate declared that the petitioner is a resident of Rajnandgaon (M.P.) and belongs to Halba tribe. According to the petitioner, she was born and brought up in the erstwhile State of Madhya Pradesh prior to Madhya Pradesh Re-organization Act, 2000 (In short “the Act of 2000”). The petitioner had taken her school/higher education in the State of Madhya Pradesh, part of which, is now within the territorial jurisdiction of State of Chhattisgarh.

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The petitioner applied for the post of Assistant Fisheries Officer in the Department of Fisheries under the Government of Madhya Pradesh and was selected. The petitioner was appointed on 16-08-1995 as Assistant Fisheries Officers in the services of the then State of Madhya Pradesh. After reorganization of State of Madhya Pradesh under the Act of 2000, the petitioner was allotted State of Chhattisgarh and then, she became a member of the Services of State of Chhattisgarh in the department of Fisheries.

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All through this period, the petitioner always claimed the status of Scheduled Tribe on the strength of her caste certificate issued in the year 1992.

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The petitioner while in service, applied for appointment to the post of Assistant Director, reserved for Scheduled Tribe. It appears that the petitioner was not being given the benefit of caste status on the strength of caste certificate of 1992, which led to dispute and the petitioner had filed W.P.No.3813 of 2006 which was finally disposed off vide order dated 04-08-2006 with a direction to the competent authority of the State Government to get enquiry conducted in accordance with law and as per the judgment of the Supreme Court in the case of Kumari Madhuri Patil and another vs. Additional Commissioner, Tribal Development and others, AIR 1995 SC 94. In compliance of the aforesaid judicial directions, the State Level Caste Scrutiny Committee constituted under the directions of the Supreme Court in the case of Kumari Madhuri Patil (supra), initiated verification and enquiry into the claim of caste status of the petitioner. The petitioner was issued show cause notice, after collection of material through the Vigilance Cell. Pursuant to show cause notice dated 20-03-2007, the petitioner submitted her reply on 09-04-2017 and along with the said reply, the petitioner submitted 17 documents. However, vide impugned order, the State Level Caste Scrutiny

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Committee held that the petitioner was issued caste certificate contrary to the directions of the Supreme Court, Union of India and related rules. Thereafter, the Sub Divisional Officer, Rajnandgaon also proceeded to pass an order dated 12-09-2006, holding that the petitioner was not entitled to the caste status of Halba Tribe in the State of Chhattisgarh and therefore, she is liable to be terminated from service. Assailing the order of State Level Caste Scrutiny Committee, the petitioner filed WPS No.6006 of 2007. In W.P.No.5671 of 2006, order dated 12-09-2006 passed by the Sub Divisional Officer, Rajnandgaon is challenged.

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Learned counsel for the petitioner argued in extenso to submit that the petitioner belongs to Scheduled Tribe (Halba). It is submitted that the father of the petitioner was working in the Postal Department under the Government of India and he had migrated to Rajnandgaon in then State of Madhya Pradesh way back in the year 1965 and permanently settled in the State of Madhya Pradesh (now State of Chhattisgarh). During that period, he remained posted in various stations in the State of Madhya Pradesh (now State of CG). The petitioner was born at Kondagaon in the year 1971 in the then State, i.e. within the territorial area of State of Madhya Pradesh (now in the State of Chhattisgarh). The petitioner took up her studies in the State of Madhya Pradesh only and by virtue of her birth in the State of Madhya Pradesh (now Chhattisgarh), became a permanent resident of the State. “Halba” tribe has been notified as one of the tribe under the Presidential Notification dated 06-09-1950 in relation to the State of Madhya Pradesh. As father of the petitioner was also permanent resident of Madhya Pradesh (now Chhattisgarh), the petitioner had became permanent resident of Madhya Pradesh (now Chhattisgarh) and Halba was one of the specified Scheduled Tribe under the

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Presidential Notification dated 06-09-1950, caste certificate of Halba Tribe was rightly issued in favour of the petitioner in the year 1992.

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Learned counsel for the petitioner would further submit that at the time when the Presidential Notification dated 06-09-1950 was issued, State of Madhya Pradesh as it existed prior to re-organization of States under the State's Re-organization Act, 1956, included the area of Amravati District also. In her reply to the show cause notice issued by the State Level Caste Scrutiny Committee, it has been very clearly stated that on 06-09-1950, father of the petitioner was native and originally resident of Village Sendurjanaghat, Tehsil Varud, District Amravati of Central Province. As Amravati District was included in the then State of Madhya Pradesh in 1950, which is clear from notification dated 06-09-1950, father of the petitioner was entitled to get the benefit of Scheduled Tribe (Halba) in relation to State of Madhya Pradesh, which could not be taken away on account of subsequent re-organization of State under State's Re-organization Act, 1956. According to him, once Amravati District, at one point of time, formed part of the State of Madhya Pradesh, resident of Amravati District would be entitled to claim benefits of Scheduled Tribe (Halba) in relation to State of Madhya Pradesh for all times to come and thereafter, in the State of Chhattisgrh also, upon re-organization of State of Madhya Pradesh under the Act of 2000. Learned counsel for the petitioner would submit that on the basis of these undisputed factual background and legal position under Article 342 of the Constitution of India and several orders passed by the Supreme Court in the case of Director of Tribal Welfare, Government of Andhra Pradesh vs. Laveti Giri and Others, (1995) 4 SCC 32, Kumari Madhuri Patil (supra) and subsequent decisions, the petitioner is entitled to claim the status of Scheduled Tribe (Halba) in the State of Madhya Pradesh and

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in the State of Chhattisgarh, where now she is working. It is lastly submitted that even if it is held that the petitioner was a member of Halba Tribe of Amravati District, which now falls within the territorial jurisdiction of State of Maharashtra, but father of the petitioner had migrated from Amravati District to Rajnandgaon District in connection with All India Services, therefore, this involuntary migration would not affect claim of status of scheduled tribe in the State of Madhya Pradesh (now Chhattisgarh).

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On the other hand, learned State counsel would submit that father of the petitioner, according to petitioner's own reply, was originally native and resident of Village Sendurjanaghat, Tehsil Varud, District Amravati and migration to Rajnandgaon in connection with All India Services cannot be said to be involuntary migration, because there is no material placed on record to show that the father of the petitioner was transferred from the State of Maharashtra to Rajnandgaon, State of Madhya Pradesh, while in service. According to him, such involuntary migration did not ipso facto, entitled a member of Scheduled Tribe of one State to get the status of Scheduled Tribe in the other State without there being any legislation in this regard. He would next submit that even when, first Presidential Notification of Scheduled Tribe was issued on 06-09-1950 by the President of India in exercise of powers under Article 342 of the Constitution of India, only a part of the Amravati District was included for the purpose of recognizing Scheduled Tribe status of Halba in those areas and not in the entire state. In any case, according to him, after issuance of subsequent Presidential Notification on 29-10-1956, by which time, State of Madhya Pradesh was reorganized under the State's Re-organization Act, 1956, did not include Amravati District which was then brought within the territorial jurisdiction of State of Bombay re-organized under the State's Re-organization Act, 1956. From the

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year 1956 onwards, Halba tribe of Amravati District could not claim caste status in the State of Madhya Pradesh (now Chhattisgarh). He would next submit that the petitioner's statement that her father belongs to Village Sendurjanaghat, Tehsil Varud, District Amravati, on petitioner's own admission, non suits the petitioner as the petitioner could not claim status of Halba tribe nor could get any such benefit as Halba Tribe in the State of Madhya Pradesh or in the State of Chhattisgarh, in the absence of there being any legislation in this regard. Relying upon the recent decisions of the Supreme Court in the case of Chairman and Managing Director, Food Corporation of India and others Versus Jagdish Balaram Bahira and others, AIR 2017 SC 3271, it is submitted that once the petitioner is found not entitled to claim status of Halba tribe in the State of Madhya Pradesh/Chhattisgarh, the petitioner's appointment as an Officer in the Fisheries Department against reserved category cannot be saved and termination is an inevitable consequence. For this purpose, learned State counsel has placed reliance upon the declaration of law by the Apex Court as contained in para 56 of the aforesaid judgment.

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Indisputably, the petitioner's father/forefather belonged to and were natives/originally resident of Village Sendurjanaghat, Tehsil Varud, District Amravati. This fact has been clearly stated by the petitioner not only in her reply to show cause notice issued by the State Level Caste Scrutiny Committee, but also stated in para 5.4 of the petition. Relevant part of the petitioner's reply (Annexure P/18) is reproduced hereinbelow:-

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“3- firk Hkkjr 'kklu ds iksLVy foHkkx esa 1965 ls NRrhlx<+ dh HkkSxksfyd lhek nqxZ fMfotu esa 'kkldh; lsok esa dksa.Mkxkao] [kSjkx<+] NqbZ[knku esa Fks firk dk LoxZokl gks pqdk gS] ikfjokfjd isa'ku ,oa vU; izdj.k ds fy, lsok iqfLrdk Hkksiky@fnYyh izsf"kr dh xbZ gS] ftlds fy, vkosnu izLrqr fd;k x;k gSA

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4- 6-9-1950 dks esjs firk xzke 'kasUnqjtuk?kkV rgfly o:M+ ftyk vejkorh jkT; e/;izkar ds ewy fuoklh FksA ”

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It is also not in dispute that sometimes in the year 1965, father of the petitioner had migrated to Rajnandgaon. According to the petitioner, petitioner's father was employed in the Postal Department under the services of Government of India. Except this averment, no other details have been given in the petition. What is reflected from the pleadings are that father of the petitioner was appointed at Rajnandgaon in the Durg Division, Postal Department in the year 1965, but whether it was initial appointment or father of the petitioner had come on transfer having already been appointed, has not been clearly stated either in the petition or in the reply to show cause notice issued by the State Level Caste Scrutiny Committee or any other documents placed before the Court. It has also not been disputed that father of the petitioner, after having migrated to the then State of Madhya Pradesh, continued to remain posted in various parts of State of Madhya Pradesh, which are now within the territory of State of Chhattisgarh constituted under the Act of 2000. It has also not been disputed that the petitioner was born in the then State of Madhya Pradesh in the year 1971 at Kondagaon, which is now within the territory of State of Chhattisgarh and thereafter, the petitioner took up her education here only. However, the status of SC/ST could be claimed by a person only in relation to a particular State, of which, such person happens to be native and originally resident. Moreover, the status could be claimed only in accordance with the Presidential Notification issued in exercise of power conferred under Article 341 & 342 of the Constitution of India.

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Learned State counsel, during the course of arguments, placed before the Court, a copy of notification dated 06-09-1950 issued by the President in

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exercise of power conferred under Clause I of Article 342 of the Constitution of India in consultation with the Governors and Rajya Pramukh of the State concerned. The said Notification is titled “Constitution (Scheduled Tribes) Order, 1950. Part IV enlist tribes of the State declared as Scheduled Tribe for the purpose of Article 342 of the Constitution of India. The same being relevant is reproduced hereinbelow:-

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PART IV – MADHYA PRADESH

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In (1) Melghat taluq of Amravati district,

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(2) Baihar tahsil of Balaghat district

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(3) Bhanupratappur, Bijapur, Dantewara, Jagdalpur, Kanker, Kondagaon, Konta and Narayanpur tahsils of Bastar district

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(4) Betul and Bhainsdehi tahsils of Betul district

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(5) Katghora tahsil of Bilaspur district

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(6) Suroncha and Gharchiroli tahsils of Chanda district

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(7) Amarwara, Chhindwara and Lakhnadon tahsils of Chhindwara district

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(8) Balod (Sanjari) Tahsil or Durg district

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(9) Mandla Niwas and Ramgarh (Dindori) tehsils of Mandla district

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(10)Harsud tehsil of Nimar district

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(11) Dharamjaigarh, Gharghoda, Jashpurnagar and Kharsia tahsils of Raigarh district,

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(12)Ambikapur, Baikunthpur, Bharatpur, Janakpur, Manendragarh, Samari and Sitapur tahsils of Surguja district :--

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Andh 2. Baiga 3. Bhaina 4. Bharia-Bhumia or Bhuinhar-Bhumia 5. Bhattra 6. Bhil 7. Bhunjia 8. Binjhwar 9. Birhul or Birhor 10. Dhanwar 11. Gadaba or Gadba 12. Gond (including Madia Maria) and Mudia (Muria) 13. Halba 14. Kamar 15. Kawar or Kanwar 16. Kharia 17. Kondh or Khond or Kandh 18. Kol 19. Kolam 20. Korku 21. Korwa 22. Majhwar 23. Munda 24. Nagesia or Nagasia 25. Nihal 26. Oraon 27. Pradhan 28. Pardhi 29. Parja 30. Saonta or Saunta 31. Sawar or Sawara

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A perusal of the aforesaid notification would show that as many as 31

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tribal communities were scheduled under the notification for the purpose of

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Article 342 of the Constitution of India. Other important feature is that the declaration of the Status of Scheduled Tribe enlisted 31 tribes is with reference to specified areas under 12 different clauses. A composite reading of the aforesaid part of the notification leads to the conclusion that the tribes specified therein and residing in the specified territorial area of the then State of Madhya Pradesh were conferred Status of Scheduled Tribe. Importantly, under Clause I, the area of Melghat taluq of Amravati district has been included. That would mean that enlisted tribes, who were natives and original residents of Melghat of Amravati District were also to be recognized as Scheduled Tribe for the purpose of Article 342 of the Constitution of India. The notification also indicates that the then State of Madhya Pradesh, as it existed prior to its re-organization under the State's Re-organization Act, 1956, included District Amravati also. However, for the purpose of granting benefit of Scheduled Tribe to tribe enlisted in the notification only Melghat Taluq of Amravati District was included. In view of the constitution bench decision of the Supreme Court in the case of State of Maharashtra vs. Milind and others, AIR 2001 SC 393, burden was on the petitioner to prove that territorial area of Village Sendurjanaghat, at the relevant time when Presidential Notification was issued on 06-09-1950, formed part of Melghat of Amravati District. On the contrary, what is reflected from the petitioner's pleading and reply to show cause notice (Annexure P/18) is that, the petitioner declared that her father was native and originally resident of Village Sendurjanaghat, Tehsil Varud, District Amravati, which is different from Melghat Taluq of Amravati District. Therefore, even if it is accepted that at the time of issuance of Presidential Notification dated 06-09-1950, Amravati District was within the territory of the then State of Madhya Pradesh, for the purpose of grant of status of Scheduled Tribe under the Presidential Notification, burden was on the petitioner to prove by leading cogent, documentary and oral evidence that

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Village Sendurjanaghat is within the territory of Melghat, which the petitioner has failed to establish.

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Re-organization of States in India took place under the State's Reorganization Act, 1956, when all states were re-organized, which included the State of Madhya Pradesh and Bombay both. Section 8 of the State's Reorganization Act, 1956, provided for new formation of State under Clause (c) sub section (1) of Section 8, which included Amravati also as a part of the territory of new Bombay State under the State's Re-organization Act, 1956. Reorganization of State of Madhya Pradesh and Bombay and many other states under the State's Re-organization Act, 1956, necessitated modification in the existing Scheduled Tribe/Scheduled Caste Order, earlier issued by the President in the year 1950. In the subsequent order issued on 29-10-1956, known as Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956, orders of State of Madhya Pradesh were altered under Part VI, as below:-

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PART VI MADHYA PRADESH

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“In the districts of Bhind, Gird, Morena, Shivpuri, Goona, Rajgarh, Shajapur, Ujjain, Ratlam, Mandsaur, Bhilsa (excluding Sironj sub-division), Indore, Dewas, Dhar, Jhabua and Nimar (M.B.):-

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Gond

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Korku

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Sehraia

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In the revenue districts of Dhar and Jhabua; in the tehsils of Sendhwa, Bharwani, Rajpur, Khargone, Bhikangaon and Maheshwar of the revenue district of Nimar; in the tahsil of Sailana of the revenue district of Ratlam:-

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Bhils and Bhilalas including Barels, Patelia and other sub-tribes.

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In (1) Bastar, Chhindwara, Mandla, Raigarh and Surguja districts, (2)

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Baihar tahsil of the Balaghat district, (3) Betul and Bhainsdehi tahsils of the Betul district, (4) Bilaspur and Katghora tahsils of the Bilaspur district, (5) Durg and Sanjari tahsils of the Durg district, (6) Murwara, Patan and Sihora tahsils of the Jabalpur district, (7) Hoshangabad, Narsimhapur and Sohagpur tahsils of the Hoshangabad district, (8) Harsud tahsil of the Nimar district (9) BindraNawagarh, Dhamtari and Mahasamund tahsils of the Raipur district:-

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Andh

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Baiga

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Bhaina

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Bharia-Bhumia or Bhuinhar-Bhumia including Pando

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Bhattra

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Bhil

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Bhunjia

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Binjhwar

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Birthul or Birhol

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Dhanwar

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Gadaba or Gadba

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Gond, including--Arakh or Arrakh Agaria Asur Badi Maria or Bada Maria Bhatola Bhimma, Bhuta, Koilabhuta or Koilabhuti Bhar, Bisonhorn Maria Chota Maria Dandami Maria Dhuru or Dhurwa Dhoba, Dhulia, Dorla,

Gaiki,

Gatta or Gatti,

Gaita,

Gond Gowari

Hill Maria,

Kandra, Kalanga, Khatola, Koitar, Koya, Khirwar or Khirwara, Kucha Maria, Kuchaki Maria, Madia (Maria), Mana,

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Mannewer,

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Moghya or Mogia or Monghya,

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Mudia (Muria), Nagarchi, Nagwanshi, Ojha, Raj,

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Sonjhari Jhareka,

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Thatia or Thotya,

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Wade Maria or Vade Maria

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Halba or Halbi

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Kamar

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Kawar, Kanwar, Kaur, Cherwa, Rathia, Tanwar or Chattri

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Khairwar

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Kharia

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Kondh or Khond or Kandh

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Kolam

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Korku including Bopchi, Mouasi, Nihal or Nahul and Bondh or Bondeya

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Korwa including Kodaku

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Majhwar

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Munda

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Nagesia or Nagasia

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Nihal

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Craon including Dhanka and Dhangad

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Pardhan, Pathari and Saroti 29. Pardhi including Bahelia or Bahellia, Chita Pardhi, Langoli Pardhi, Phans Pardhi, Shikari, Takankar and Takia

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Parja

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Saonta or Saunta

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Sawar or Sawara

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In the districts of Datia, Tikamgarh, Chhatarpur, Panna, Satna, Rewa,

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Sidhi and Shahdol:-

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Agariya

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Baiga

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Bhil

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Biar or Biyar

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Bhumiya including Bharia and Paliha

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Gond including Pathari

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Khairwar including Kondar

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Kol (Dahait)

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Majhi

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Mawasi

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Nat, Navdigar, Sapera and Kubuttar

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Panika

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Sahariya

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Saur

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Sonr

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In the districts of Raisen and Sehore :----

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Bhil

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Bhilala

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Gond or Daroi

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Karku

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Keer

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Mogia

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Pardhi

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Saharia, Sosia or Sor

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In Sironj sub-division of Bhilsa district :--

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Bhil

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Bhil Mina

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Damor, Damaria

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Garasia (excluding Rajput Garasia)

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Mina

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Sehria, Sahariya

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On comparison of the 1956 notification in relation to the State of Madhya Pradesh with the 1950 notification, it is clear that the District Amravati was excluded from the territory of reorganized State of Madhya Pradesh. A perusal of areas now included in the new State of Bombay under the notification of 1956, would make it very clear that District Amravati was now included within the territory of new State of Maharashtra.

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The legal implications and consequences flowing from such alterations

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were that Amravati no longer formed part of the State of Madhya Pradesh, after 1956 notification and the tribes of areas of Amravati District who were earlier declared Scheduled Tribe in relation to State of Madhya Pradesh under Presidential Notification dated 06-09-1950, ceased to be so upon such alteration, obviously because Amravati District was excluded from the territorial area of State of Madhya Pradesh and brought within the territory of State of Bombay. Thus, after 1956, even if it is assumed that the father of the petitioner was Halba tribe and native/originally resident of Village Sendurjanaghat, Tehsil Varud, District Amravati, neither father of the petitioner nor the petitioner could claim the status of Scheduled Tribe (Halba) in relation to the then State of Madhya Pradesh. Yet, certificate of Halba tribe was issued in favour of the petitioner by the Nayab Tahsildar, Rajnandgaon in the year 1992, on which, the petitioner derived the benefits and secured appointment as Assistant Fisheries Officer in the Department of Fisheries in the then State of Madhya Pradesh and continued in service.

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As held by the Supreme Court in the case of Milind (supra) , while examining the correctness and validity of the order passed by the State Level Caste Scrutiny Committee, the High Court exercises supervisory jurisdiction under Article 227 of the Constitution of India on the basis of undisputed facts brought by the parties and legal position as well as constitutional provisions adumbrated as above. Upon analysis of facts and constitutional provisions, I do not find that there was any illegality or perversity committed by the State Level Caste Scrutiny Committee in coming to the conclusion on finding of fact that the petitioner was native of some other State and therefore, she is not entitled to benefit of caste status as Scheduled Tribe (Halba) in the State of Madhya Pradesh or in the State of Chhattisgarh.

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Though, learned counsel for the petitioner laid great emphasis on the fact

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that eversince her childhood, the petitioner was born and brought up in the the State of Madhya Pradesh (now Chhattisgarh), therefore, she can claim the status of Scheduled Tribe (Halba), this Court is unable to accept the submission because the benefit of caste status have to be granted in relation to the State and not universally all over the country, in view of the constitutional provisions contained under Article 341 & 342 of Constitution of India. At this juncture, I may profitably refer to what has been held by the Supreme Court in constitution bench judgment in Marri Chandra Shekhar Rao vs. Dean, Seth G. S. Medical College and Others, (1990) 3 SCC 130, wherein it was authoritatively declared as below:-

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“It is, however, necessary to give proper meaning to the expressions 'for the purposes of this Constitution' and 'in relation to that State' appearing in Articles 341 and 342 of the Constitution. The High Court of Gujarat has taken the view in two decisions, namely, Kum. Manju Singh v. The Dean, B.J. Medical College, AIR 1986 Gujarat 175 and Ghanshyam Kisan Borikar v.L.D. Engineering College, AIR 1987 Gujarat 83 to which our attention was drawn, that the phrase 'for the purposes of this Constitution' cannot be and should not be made subservient to the phrase 'in relation to that State' and therefore, it was held in those two decisions that in consequence the classification made by one State placing a particular caste or tribe in the category of Scheduled Castes or Scheduled Tribes would entitle a member of that caste or tribe to all the benefits, privileges and protections under the Constitution of India. A similar view has been taken by the Karnataka High Court in the case of M. Muni Reddy v. Karnataka Public Service Commission & Ors., [1981] Lab. I.C. 1345. On the other hand, the Orissa High Court in the case of K. Appa Rao v. Director of Posts & Telegraphs, Orissa & Ors., AIR 1969 Orissa 220 and the full Bench of the Bombay High Court in M.S. Malathi v. The Com- missioner, Nagpur Division & Ors., AIR 1989 Bombay 138 have taken the view that in view of the expression 'in relation to that State' occurring in Articles 341 and 342, the bene- fit of the status of Scheduled Castes or Scheduled Tribes would be

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available only in the State in respect of which the Caste or Tribe is so specified. A similar view has been taken by the Punjab & Haryana High Court in the case of V.B. Singh v. State of Punjab, ILR 1976 1 Punjab & Haryana 769.”

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The aforesaid settled legal position clearly answers the petitioner's argument that by virtue of her birth and bringing up in the State of Chhattisgarh, she is entitled to claim the status of Halba Tribe in the State of Chhattisgarh, even though, she was native/originally belonged to Amravati District, which now falls within the territory of State of Maharashtra.

¶182

Learned counsel for the petitioner at the last submits that the claim of status of Halba Tribe by the petitioner was not a fraudulent act, but it is bonafide assumption of status. The petitioner was duly issued caste certificate, on the strength of which, she secured employment as reserved category candidate and has been in the service for the last 22 years. If at this stage, denial of caste status, affects her service, it will be a case of serious hardship to the petitioner and her entire family, therefore, the petitioner may be allowed to continue in her service with a clear direction that henceforth, the petitioner may not claim any such benefits.

¶183

Sympathy apart, this Court is unable to provide any protection under the law to the petitioner, in view of what has been declared by the Supreme Court in the case of Jagdish Balaram Bahira (supra). Conclusion drawn by the Supreme Court in para 57 of the aforesaid judgment, are as below:-

¶184

I. Conclusion

¶185

For these reasons, we hold and declare that

¶186

(i) The directions which were issued by the Constitution Bench of this Court in paragraph 38 of the decision in Milind were in pursuance of the powers vested in this Court under Article 142 of the Constitution;

¶187

(ii) Since the decision of this Court in Madhuri Patil which was rendered on 2 September 1994, the regime which held the field in pursuance of those directions envisaged a detailed procedure for (a) the issuance of caste

¶188

¶189

certificates; (b) scrutiny and verification of caste and tribe claims by Scrutiny Committees to be constituted by the State Government; (c) the procedure for the conduct of investigation into the authenticity of the claim; (d) Cancellation and confiscation of the caste certificate where the claim is found to be false or not genuine; (e) Withdrawal of benefits in terms of the termination of an appointment, cancellation of an admission to an educational institution or disqualification from an electoral office obtained on the basis that the candidate belongs to a reserved category; and (f) Prosecution for a criminal offence;

¶190

(iii) The decisions of this Court in R. Vishwanatha Pillai and in Dattatray which were rendered by benches of three Judges laid down the principle of law that where a benefit is secured by an individual – such as an appointment to a post or admission to an educational institution – on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est.

¶191

(iv) The exception to the above doctrine was in those cases where this Court exercised its power under Article 142 of the Constitution to render complete justice;

¶192

(v) By Maharashtra Act XXIII of 2001 there is a legislative codification of the broad principles enunciated in Madhuri Patil. The legislation provides a statutory framework for regulating the issuance of caste certificates (Section 4); constitution of Scrutiny Committees for verification of claims (Section 6); submission of applications for verification of caste certificates (Section 6(2) and 6(3); cancellation of caste certificates (Section 7); burden of proof (Section 8); withdrawal of benefits obtained upon the invalidation of the claim (Section 10); and initiation of prosecution (Section 11), amongst other things;

¶193

(vi) The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect of caste certificates issued prior to and subsequent to the enforcement of the Act on 18 October 2001. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual to belong to a reserved caste, tribe or class is yet to be verified by the Scrutiny Committee;

¶194

(vii) Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;

¶195

(viii) The decisions in Kavita Solunke and Shalini of two learned Judges are overruled. Shalini in so far as it stipulates a requirement of a dishonest intent for the application of the provision of Section 10 is, with respect, erroneous and does not reflect the correct position in law;

¶196

(ix) Mens rea is an ingredient of the penal provisions contained in Section 11. Section 11 is prospective and would apply in those situations where the act constituting the offence has taken place after the date of its enforcement;

¶197

(x) The judgment of the Full Bench of the Bombay High Court in Arun Sonone is manifestly erroneous and is overruled; and

¶198

(xi) Though the power of the Supreme Court under Article 142 of the Constitution is a constitutional power vested in the court for rendering complete justice and is a power which is couched in wide terms, the exercise

¶199

¶200

of the jurisdiction must have due regard to legislative mandate, where a law such as Maharashtra Act XXIII of 2001 holds the field.”

¶201

In view of the aforesaid declaration, which is binding on this Court, no protection order can be issued in favour of the petitioner, once caste status of the petitioner is invalidated by the order of the State Level Caste Scrutiny Committee.

¶202

In so far as challenge to the order dated 12-09-2006 passed by the Sub Divisional Officer, assailed in WP No.5671 of 2006 is concerned, I have to hold that the Sub Divisional Officer did not have any jurisdiction to decide the caste status of the petitioner and the said order is void ab initio yet no relief can be granted in view of the fact that later on, State Level Caste Scrutiny Committee has held that the caste certificate of the petitioner is not valid.

¶203

In the result, both the petitions (WPS No.6006 of 2007 & WP No.5671 of 2006) are dismissed.

¶204

SD/( Manindra Mohan Shrivastava ) Judge

¶205

Tumane

¶206

Smt. Pushpalata Dekate v. Union of India

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Smt. Pushpalata Dekate v. Union of India

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