1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 3765 OF 2006 1 Maruti s/o Madhabvrao Vithabone, age 40 years, occ. Service, [Serving as a Driver in MSRTC, Latur Division, Latur ], r/o Limbala, PO Sindkhed, Tq. Nilanga, Dist. Latur ...Petitioner VERSUS 1 The State of Maharashtra, through the Secretary Transport Department, Mantralaya, Mumbai – 32, 2 The Scheduled Tribe Caste Certificate Verification Committee, through its Chairman/Director, Aurangabad Division, Aurangabad, 3 The Taluka Executive Magistrate, Udgir, District Osmanabad, 4 The Collector, Collectorate, Osmanabad, 5 The Divisional Controller, Maharashtra State Road Transport Corporation, Latur Division, Latur. ...Respondents ..... Shri S.C.Yalamwar, advocate holding for Shri A.S.Golegaonkar, advocate for the petitioner 2 Shri R.P.Phatake, A.G.P. for respondent nos. 1 to 4 Smt. R.D.Reddy, advocate for respondent no.5. ..... CORAM : S.B.DESHMUKH AND SHRIHARI P. DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 27.9.2010 DATE OF PRONOUNCING THE JUDGMENT : 29.9.2010 J U D G M E N T : (Per Shrihari P. Davare, J.) 1 Rule. Rule made returnable forthwith. With the consent of learned respective counsel for the parties, the petition is taken up for final hearing at the stage of admission. 2 By the present petition, filed under Article 226 of the Constitution of India, the petitioner prayed that the decision dated 31.12.2005 of respondent no. 2 Committee be quashed and set aside and it be declared that the petitioner belongs to Mahadeo Koli Scheduled Tribe, and also prayed that the matter be remanded back to respondent no.2 Committee, with direction to decide the caste claim of the petitioner as per the guidelines laid down by Hon'ble 3 Apex Court in the matter of Kumari Madhuri Patil and another vs Addl. Commissioner, Tribal Development and others, reported at AIR 1995 SC 94, and further prayed that respondent no.2 Committee be restrained from taking any adverse action, like termination of services/initiation of departmental inquiry, etc. against the petitioner, in pursuance of the decision dated 31.12.2005 of respondent no.2 Committee, and to allow the petitioner to work as a Driver. Accordingly, after filing the present petition, interim relief was granted in favour of the petitioner that no adverse action of termination be taken against him on the basis of the order of the Scrutiny Committee invalidating the tribe claim of the petitioner on 17.10.2006. 3 The petitioner claims to belong to Mahadeo Koli Scheduled Tribe community. Respondent no.1 is the State of Maharashtra; whereas respondent no.2 is the Scrutiny Committee and respondent no.3 is the Taluka Executive Magistrate, Udgir, District Osmanabad, who issued caste certificate in favour of the petitioner; whereas respondent no.4 is the Collector, District Osmanabad and respondent no.5 is the authority under whose supervision the petitioner works as a Driver. 4 4 It is the contention of the petitioner that he belongs to Mahadeo Koli Scheduled Tribe and entry to that effect is taken in his School Leaving Certificate and the said School Leaving Certificate is produced at Exh. 'A' (Page 30). It is also the contention of the petitioner that the Sarpanch of the village issued certificate to the effect that the petitioner belongs to Mahadeo Koli Scheduled Tribe, as well as the competent authority has also issued the caste certificate on 16.2.1982 in favour of the petitioner that he belongs to Mahadeo Koli Scheduled Tribe, which is produced at Exh. 'B' (Page 31). 5 It is further the contention of the petitioner that after following due procedure, he was selected as Driver by respondent no.5 in the year 1994, and by letter dated 24.2.1995, he was asked to submit his caste certificate for referring his caste claim to respondent no.2 Committee, and accordingly, he produced the same. Thereafter, in the month of April/May, 1995, his caste certificate was referred to respondent no.2 Committee and on 30.8.1995, the petitioner came to be appointed as a Driver purely on temporary basis and his appointment was on daily wages. The said appointment order is annexed at Exh. 'F' (Page 37). 5 6 The petitioner submits that although his caste claim was referred to respondent no.2 Committee in April/May, 1995 for verification purpose, respondent no.2 Committee did nothing till the year 2000. In the year 2000, Vigilance Cell inquiry was conducted through Police Inspector Mr. D.J.Sonar, who submitted his report on 17.7.2000. However, no inquiry through Research Officer was conducted, as well as Research Officer did not assess information so compiled by Police Inspector of Vigilance Cell. 7 The petitioner further submits that during the years 2000 to 2005, respondent no.2 Committee did nothing, and suddenly the petitioner was called on 29.9.2005 for personal hearing before respondent no.2 Committee by notice dated 19.9.2005. However, the petitioner could not remain present before respondent no.2 Committee due to his illness. Thereupon, respondent no.2 Committee proceeded ex-parte on the basis of the documents before the said Committee and passed ex-parte order on 31.12.2005, thereby invalidating the petitioner's caste claim as belonging to Koli Mahadeo Scheduled Tribe. Being aggrieved and dissatisfied by the said ex-parte order, the petitioner has challenged the impugned ex- parte order in the present petition. 6 8 The respondents opposed the present petition vehemently, and more particularly, respondent no.3 filed the affidavit in reply, which was sworn in by Ramesh Kishanrao Jadhav, Divisional Controller, M.S.R.T.C., Latur, and thereby denied the averments and contentions raised by the petitioner unless admitted specifically. It is stated in the said affidavit that the petitioner is still in service. It is also stated that the petitioner had submitted two certificates issued by Police Patil, Nimbala, Taluka Nilanga and Sarpanch, Grampanchayat, Taluka Nimbala dated 7.12.1993 and 8.12.1993, respectively, certifying that the petitioner belongs to Koli Mahadeo caste, but said documents are Xerox copies. It is also submitted that the caste certificate of the petitioner was submitted to the Caste Verification Committee, Latur on 24.4.1995 for verification purpose, however, as yet no decision of respondent no.2 Committee regarding the caste claim of the petitioner has been submitted to the office of the respondent. Accordingly, respondent no.5 submitted that the petition be decided in accordance with law considering the said affidavit in reply. 9 Perused the original record of respondent no.2 Committee regarding verification of caste claim of the petitioner by respondent no.2 Committee, as well as heard learned respective counsel for the 7 parties. 10 At the out set, main grievance of the petitioner is that although his caste claim was referred for verification in the month of April/May, 1995 to respondent no.2 Committee, nothing was done till the year 2000 and in the year 2005 Vigilance Cell inquiry was conducted through Police Inspector, who submitted his report on 17.7.2000 and further thereafter nothing was done by respondent no. 2 Committee till the year 2005, and suddenly, the petitioner received notice dated 19.9.2005 from respondent no.2 Committee calling upon him to remain present before respondent no.2 Committee on 29.9.2005, but the petitioner could not remain present before respondent no.2 Committee on account of his illness. The said fact was not considered by respondent no.2 Committee and respondent no.2 Committee proceeded ex-parte on the basis of documents before it and passed the impugned order dated 31.12.2005, thereby rejecting the petitioner's caste claim as belonging to Koli Mahadeo Scheduled Tribe without giving any opportunity and audience to the petitioner. 11 Hence, we are of the considered view that opportunity is required to be given to the petitioner to put forth his case before 8 respondent no.2 Committee in respect of his caste claim, since the impugned order dated 31.12.2005 came to be passed by respondent no.2 Committee ex-parte, as the petitioner could not remain present before it on the date of hearing i.e. on 29.9.2005 due to his illness, as contended by the petitioner, and therefore, we are of the view that this is a fit case to exercise extra ordinary writ jurisdiction to remand back the matter to respondent no.2 Committee, with directions to the said Committee to give reasonable opportunity of hearing and audience to the petitioner in respect of his caste claim, and thereafter to pass the order on its own merits in accordance with law within the reasonable period, and to communicate the same to the petitioner and accordingly, the impugned order dated 31.12.2005 deserves to be quashed and set aside, to subserve the interest of justice. 12 In the result, the present petition is allowed partly in terms of prayer clauses 'B' and 'C' and the impugned order dated 31.12.2005 passed by respondent no.2 Committee stands quashed and set aside and the matter is remanded back to respondent no.2 Committee, and the petitioner is directed to remain present before respondent no. 2 Committee on 25.10.2010 at 11.00 a.m., with directions to the said Committee to give reasonable opportunity of hearing and 9 audience to the petitioner in respect of his caste claim and to pass suitable order on its own merits in accordance with law and to communicate the same to the petitioner in writing within the period of three months from 25.10.2010. However, if the petitioner does not remain present before respondent no.2 Committee on the afore said date and does not cooperate to respondent no.2 Committee in the hearing, respondent no.2 Committee shall be at liberty to proceed further and to pass order on the basis of documents and papers before it, in accordance with law and to communicate the same to the petitioner within the period as afore stated. 13 Rule is made absolute in the afore said terms. (SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)