1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH WRIT PETITION NO. 4767 OF 2003 Gangadhar s/o. Nandkumar Shirpurkar, aged 30 years, occ. service, R/o. Bhagya Nagar Teacher Colony, Anand Nagar, Parbhani. - - - - - Petitioner versus 1. The State of Maharashtra 2. The SC, VJNT, OBC and Special BC Caste Certificate Scrutiny Committee, Aurangabad Division, Aurangabad. 3. The Mahatma Phule Krishi Vidyapeeth, Rahuri. 4. The Tahsildar and Taluka Executive Magistrate, Partur, district Jalna. 5. Chandrakant Trimbakappa Kolle, age 67 years, occ. agricultural, R/o. Old Ausa Road, Saraswati Colony, Latur. -- - - Respondents Shri S. B. Talekar, Advocate for the petitioner. Shri B. V. Wagh, Asstt. Govt. Pleader for respondent No.1 and 4. Shri B. L. Sagar Killarikar, Advocate for respondent No.2. 2 Shri Pradeep Shahane, Advocate for respondent No.3. Shri S. B. Gastagir, Advocate for respondent No.5. CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. Dated : 24th September 2009 ORAL ORDER [ Per B. R. GAVAI, J. ] : 1. The petitioner has filed present petition challenging the order passed by the respondent No.2 Committee invalidating the claim of the petitioner belonging to `Malajangam' Scheduled Caste. The petitioner also sought a declaration that he belongs to `Mala jangam' Scheduled Caste. The petitioner is working as Senior Research Assistant. Agriculture Research Station, Niphad under the respondent No.3 University. Since the appointment of the petitioner was against the post reserved for Scheduled Caste, his caste claim came to be referred to respondent No.2 Committee for the purpose of verification. Vide Order dated 3-12-1995, respondent No.2 Committee invalidated the claim of the petitioner. The petitioner was, therefore, required to approach this Court by way of Writ Petition No. 891 of 1995. This Court vide order dated 4-9-2003 passed in the said writ petition partly allowed the petition and directed the respondent No.2 Committee to reconsider the 3 claim of the petitioner in the light of certain directions made in the said order. Accordingly, respondent No.2 Committee reconsidered the claim of the petitioner and vide impugned order dated 29-10-2003 reiterated its earlier decision of invalidating the claim. Hence, present petition. 2. Shri Talekar, learned Counsel appearing on behalf of the petitioner, submits that the decision of the Committee is in contravention of the direction of the Apex Court in the case of Kumari Madhuri Patil and another vs. Additional Commissioner, Tribal Development and others reported in A.I.R. 1995 S.C. 94. He submits that the home inquiry as required under the said judgment by Vigilance Cell has not been done in the present case and, therefore, finding of respondent Committee invalidating the claim of the petitioner is not justified in law. He further submits that the observations of the Division Bench in its judgment dated 4-9-2003, in the case of the petitioner in Writ Petition No. 891 of 1995 to the effect that failure to cause a vigilance inquiry by itself would not vitiate its decision are contrary to the judgment of the Apex Court in the case of Kumari Madhuri Patil and, therefore, the same will have to be ignored. Relying on the judgment of the Apex Court in the case of Smt. Kausalya Devi 4 Bogra and others vs. Land Acquisition Officer, Aurangabad and another, (1984) 2 SCC 324, learned Counsel submits that all Courts in India are bound by the judgment of the Apex Court and, therefore, the judgment and order dated 4-9-2003 which is not in consonance with the law laid down in the case of Kumari Madhuri Patil, in so far as direction to conduct the home inquiry, is per incuriam. 3. Shri Killarikar, learned Counsel appearing on behalf of respondent No.2 Committee and Shri Gastagar, learned Counsel for respondent No.5 submit that remand to the Committee was for the limited aspect regarding evidence of one Shri Parsuram Wadikar as well as Kishanrao Wadikar. He submits that in so far as other aspect of the matter is concerned, Division Bench has considered the matter on merits and did not find favour with the contentions raised on behalf of the petitioner. It is, therefore, submitted that, it is not open for the petitioner, now, to contend that the judgment in so far as its observation that "failure to cause a vigilance inquiry by itself has not vitiated its decision" is per incuriam. 4. With the assistance of learned Counsel for the parties, we 5 have perused the old file of the petitioner also. No doubt that in sub paragraph 5 of paragraph 12 of the judgment, in the case of Kumari Madhuri Patil cited supra, Apex Court had directed constitution of vigilance cell which was required to personally verify and collect all the facts regarding social status claimed by the candidate, parents or guardian as the case may be. However, it could be seen that in the present case prior to passing of an earlier order dated 3-2-1995, the then Committee had considered inquiry report received from District Social Welfare Officer, Parbhani. In the report submitted by the District Social Welfare Officer it is stated that from the characteristics and traits as narrated by the parents of the candidate it was found that they were wearing Rudraksha and putting Bhasma on forehead. It is stated that these are characteristics of "Jangam" and Lingayat Sect. Upon consideration of the entire documents submitted by the petitioner, it was found that the petitioner belongs to "Jangam O.B.C." Caste and not "Mala Jangam Scheduled Caste. The Division Bench while considering the correctness of the said order in Writ Petition No. 891 of 1995 had scrutinized the entire material on record. It was found that, on earlier occasion, caste certificate was issued on 20-7-1989 by the Executive Magistrate at Parbhani certifying that petitioner belongs to "Jangam" caste which is recognized as 'O.B.C.'. It was, 6 however, found that subsequently petitioner had obtained Certificate dated 14-7-1992 issued by Executive Magistrate, Partur showing that he belongs to "Mala Jangam Scheduled Caste". It was found that all the documents produced on record by the petitioner were showing caste as "Jangam". In so far as grievance of the petitioner regarding home inquiry by the vigilance cell is concerned, the Division Bench observed thus : "In addition, on the face of the documents submitted by the petitioner himself, failure to cause a vigilance inquiry by itself would not vitiate its decision." 5. Having observed thus, Division Bench found that the petitioner claims to be a close relative of Parsuram Wadikar from the paternal side. The Division Bench found that the genealogy itself was placed on record by the petitioner. It was further found that claim of said Parasuram was allowed and he was held to be belonging "Mala Jangam" tribe. In that view of the matter, the Division Bench, therefore, remanded the matter for limited purpose of recording the evidence of said Shri Parasuram Wadikar and his father Kishanlal Wadikar. It can thus clearly be seen that vide Order dated 4/9/2003, the Division Bench allowed the petition partly and remanded the matter only for the purposes of recording 7 evidence of Parsuram and his father Kishanrao and for scrutinizing as to whether said Parasuram whose claim is validated is really related to the petitioner or not. 6. The Scrutiny Committee, on remand, by order impugned in the present petition, found that the surname of the petitioner was Shirpurkar whereas that of Parsuram was Wadikar. It is found that the petitioner and his predecessor originally hailed from village Roda, taluka Pusad, district Yavatmal. On the contrary, predecessors of Parsuram are permanent residents of Jangamwadi, taluka Kandhar, district Nanded. It was found by the Committee that the claim of the petitioner of being related to Parasuram Wadikar was not substantiated by any material on record and, therefore, held that the petitioner has failed to prove that he belongs to "Mala Jangam" caste. 7. Since the Division Bench of this Court vide Order dated 4-9-2003 has specifically observed that failure to cause a vigilance inquiry by itself would not vitiate the decision of the Committee, we find that it would not be appropriate for us to permit the petitioner to re-open the said issue again. We find that judicial propriety would not permit us to do so. If the petitioner had any grievance with 8 respect to the aforesaid observations and the order passed by the Division Bench dated 4-9-2003, he could have very well challenged the said order. By the said order, Division Bench had remitted the matter to the Committee only for recording evidence of Parsuram and his father Kishanlal Wadikar and deciding the matter afresh in the light of the said evidence. Having accepted that order, we find that it is not open for the petitioner now to say that the matter should be opened in its entirety. 8. No doubt, that all the Courts in this country are bound to follow the law laid down by the Apex Court in view of Article 141 of the Constitution of India, however, in the facts and circumstances of the present case, it would be seen that inquiry by the District Social Welfare Officer was already conducted in the matter. Not only this but the Division Bench vide Order dated 4-9-2003 has itself, upon perusal of entire documentary evidence submitted by the petitioner, found that failure to cause vigilance inquiry by itself would not vitiate the decision of the Committee. 9. In that view of the matter, we are unable to accept contention of the petitioner in this respect. We are, therefore, left with the question as to whether the respondent Committee has rightly 9 decided the matter on remand after considering the evidence of Parsuram and Kishanrao. Upon perusal of the original file and the order impugned, we find that the Committee has given sound and cogent reasons as to why it has not accepted the contention of the petitioner that petitioner is related to said Parsuram whose claim has been validated. We do not find any perversity in the approach adopted by the Committee in arriving at these findings. In that view of the matter, petition is dismissed. 10. At this stage, Shri Talekar requests for continuation of the interim relief which was granted by this Court on 21-11-2003. The said prayer is vehemently opposed by Shri Sagar Killarikar. However, taking into consideration the fact that the interim relief is operating for a considerable length of time, we are inclined to continue the same for a period of ten weeks from today. ( N. D. DESHPANDE, J. ) ( B. R. GAVAI, J. ) pnk/wp476703