1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7740 OF 2008 Shri.Date Tanaji Honaji ) Residing at Kakde Park­B, ) Room No.M/2/9, Tanaji Nagar, ) Chinchvadgaon, Pune 411 033. ).. Petitioner V/s 1.The Secretary, ) State of Maharashtra, Tribal Development ) Department, Mantralaya, Mumbai 400 032. ) 2.The Commissioner, ) Tribal Research & Training Institute, ) 28, Ranibaug, Pune­1. ) 3.The Divisional Commissioner, ) Pune Division, Pune­411 001. ) 4.The Commissioner ) Pimpri Chinchwad Municipal Corporation ) Pune­18. ) 5.The Director, ) Tribal Research & Training Institute ) 28, Ranibaug, Pune­1. ) 6.The Deputyh Director, ) Caste Scrutiny Committee, ) Pune Division, Pune­411001. ) 7.The Deputy Director, ) Caste Scrutiny Committee, ) Nashik Division, Nasik, ) 8.The Tahsildar & Executive Magistrate, ) Rahuri, Dist: Ahmednagar, ) Maharashtra State. ) 9.The Sub­Divisional Officer, ) Shrirampur Sub­Division ) 2 Dist: Ahmednagar, Maharashtra State. ) 10.The Tahsildar & Executive Magistrate, ) Taluka Mawal (Vadgaon), District: Pune ) 11.Prithviraj Vasant Kamble ) Resident of “Shree Harsh” Plot No.128/2, ) Green Park Housing Society, ) Walhekarwadi Road, Bijalinagar, ) Chinchwadgaon, Pune 411033. ).. Respondents Mr.S.D.Thokade for the Petitioner. Mr.V.A.Gangal, Special Counsel with Mrs.M.P.Thakur & Mr.Ashok Gade, AGPs for the State. Mr.Sudhir Prabhu for Respondent No.4. Mr.R.K.Mendadkar for Respondent No.11. WITH WRIT PETITION NO.8696 OF 2009 Prithviraj Vasant Kamble, ) aged 40 years, residing at ) “Shree Harsh”, Plot No.128/2, ) Green Park Housing Society, ) Walhekarwadi Road, Bajali Nagar, ) Chinchwad, Pune­ 411 033. ) .. Petitioner V/s 1.State of Maharashtra, ) through its Secretary, ) Tribal Development Department, ) Mantralaya, Mumbai­32. ) 2.Scheduled Tribe Certificate Scrutiny Committee, ) Pune Division, Pune, through its Member ) Secretary, having its office at 28, Queen’s ) Garden, Pune­ 411 001. ) 3.Tahsildar and Executive Magistrate, ) 3 Wadgaon Maval, Dis;trict: Pune. ) 4.Additional Commissioner, ) for Tribal Development ) Nasik, Dist: Nasik. ) 5.Pimpri Chinchwad Municipal Corporation ) through its Commissioner, Pune­411 018. ) 6.Date Tanaji Honaji, ) residing at Kakade Park B, ) Room No.M/2/9, Tanaji Nagar, ) Chinchvadgaon, Pune­ 411 033. ).. Respondents Mr.R.K.Mendadkar for the Petitioner. Mr.V.A.Gangal, Special Counsel with Mrs.M.P.Thakur & Mr.Ashok Gade AGPs for the State. Mr.Sudhir Prabur for Respondent No.5. Mr.S.D.Thokade for Respondent No.6. CORAM: P. B.MAJMUDAR & R.G.KETKAR, JJ. DATE : 29th April, 2010 JUDGMENT: (Per R.G.Ketkar, J.) 1. By Writ Petition No.7740 of 2008 filed under Article 226 and 227 of the Constitution of India, the petitioner­Date Tanaji Honaji (hereinafter referred to as the Petitioner) inter­aila has prayed for direction to Respondent Nos.1 to 10 to hold fresh inquiry regarding the caste certificates and certificate of validity issued in favour of Respondent No.11 Pritviraj Vasant Kamble (hereinafter referred to as Respondent No.11) and after inquiry if it is found that those 4 certificates were obtained by producing false affidavits, documents and/or mis­representation, suppression of true and correct facts by the Respondent No.11, the said certificates may be cancelled forthwith and the Respondent No.11 may be prosecuted for the same; for direction to the Respondent Nos.1 to 10 to take appropriate action against the persons/officers who have granted these caste certificates, certificate of validity in favour of the Respondent No.11 without following proper procedure and ascertaining the true facts and/or collusively granting the certificates; direction to Respondent No.4­The Municipal Commissioner of the Municipal Corporation of the City of Pimpri Chinchwad (for short P.C.M.C.) to grant promotion to the petitioner as Chief Sanitary Inspector w.e.f. 1998 and also grant all further and consequential benefits and promotions from the said deemed date. 2. By Writ Petition No.8696 of 2009, filed under Article 226 of the Constitution of India by Prithviraj Vasant Kamble (Respondent No.11) has inter­alia prayed for quashing and setting aside the order dated May 22, 1987 passed by Respondent No.2, Scheduled Tribe Certificates Scrutiny Committee, Zonal Division Pune, (hereinafter referred to as the Scrutiny Committee, Pune); for quashing and setting aside Report/order made/passed by added Respondent No.7­ Scheduled Tribes Caste Scrutiny Committee, Thane (hereinafter 5 referred to as the Scrutiny Committee, Thane) on February 1, 2010; for declaration that the certificate of validity dated January 1, 2004 issued by the Committee for Scrutiny and Verification of Tribe Claims, Nashik Division, Nashik (hereinafter referred to as Scrutiny Committee, Nashik), is valid and subsisting. Since both these petitions raise common questions of facts and law, the same are being disposed of by this common judgment. 3. It is the case of the petitioner that he was appointed as fitter operator with the P.C.M.C. on January 23, 1991. He belongs to Scheduled Tribes category. On July 20, 1995 he was promoted as Sanitary Inspector. The Respondent No.11 was appointed as Sanitary Inspector on September 1, 1992 on the basis of his claim that he belongs to Mahadeo Koli, being the Scheduled Tribe. On May 17, 2005 the Respondent No.11 was promoted as Chief Sanitary Inspector. The petitioner claims that bye­passing his claim to the post of Chief Sanitary Inspector, the Respondent No.11 was promoted on the basis of false certificate produced by him claiming to be belonging to Scheduled Tribe category. The Respondent No.11 obtained caste certificate Caste/SR/625/85 dated June 24, 1985 issued by Tahasildar and Executive Magistrate, Vadagaon Maval, District Pune (for short “Tahasildar, Pune”). The Respondent No.11 approached the Scrutiny Committee, Pune for verification of his tribe claim as he 6 intended to prosecute further studies. The Scrutiny Committee, Pune considered the material on record produced by the Respondent No.11 and came to the conclusion that he does not belong to Mahadeo Koli Scheduled Tribe and as such, his claim towards the same was invalidated. It was held that the Respondent No.11 belongs to Koli caste and as such, the original caste certificate dated June 24, 1985 issued by Tahasildar, Pune was cancelled and confiscated. The copy of the order dated May 22, 1987 was forwarded to the Respondent No. 11 for information and necessary action at the following address: “Patryachi Chawl, Marimata Mal, Room No.B­10, Lonawala, 410401 District Pune.” 4. The Respondent No.11 was further informed that as per the instructions contained in G.R.dated March 8, 1985 there is a remedy of appeal, against the decision of the Scrutiny Committee. The candidate aggrieved by the decision of the Scrutiny Committee should submit their appeal to the Appellate Authority viz. Additional Commissioner for Tribal Development, Nashik within 15 days from the date of receipt of the Scrutiny Committee’s decision. A copy of the said order was also forwarded to the Tahasildar, Pune and the Collector & District Magistrate, Pune for information and necessary action. 5. It is the case of the Respondent No.11 that he did not receive the 7 copy of the order dated May 22, 1987 passed by the Scrutiny Committee Pune. He approached Tahasildar, Pune for issuing the caste certificate. Accordingly, on July 14, 1987 Tahasildar, Pune issued caste certificate certifying that the Respondent No.11 belongs to Hindu Mahadeo Koli community. The said certificate was issued on the strength of his School Leaving Certificate issued by V.P.S.High School, Lonawala No.1430 dated January 24, 1967. The Respondent No.11 was appointed as a Sanitary Inspector on September 1, 1992 on the basis of the caste certificate dated July 14, 1987. It is the case of the Respondent No.11 that the second caste certificate dated July 14, 1987 was mis­placed and accordingly he approached the Tahasildar, Pune for issuing the caste certificate. The said authority issued third caste certificate on May 19, 1990. When the post of Chief Sanitary Inspector was to be filled in, it appears that the P.C.M.C. called upon the Respondent No.11 to produce the certificate of validity. The Respondent No.11 approached the Sub­Divisional Officer, Shrirampur Sub­Division, Shrirampur (for short S.D.O. Shrirampur), claiming that he and his family are ordinary residents of village Kolewadi, Tal.Rahuri, District Ahmednagar. The S.D.O. Shrirampur issued caste certificate on November 15, 2003 to the effect that Respondent No.11 belongs to Hindu Mahadeo Koli which is recognized as a Scheduled Tribe under the Constitution (Scheduled 8 Tribes) Order, 1950. On the strength of this caste certificate the Respondent No.11 made application to the Scrutiny Committee, Nashik on December 2, 2003 for verification of his caste claim. The Scrutiny Committee, Nashik upheld his claim by order dated December 12, 2003 and issued certificate of validity on January 1, 2004. On the strength of this certificate of validity dated January 1, 2004, the Respondent No.11 was promoted to the post of Chief Sanitary Inspector on May 17, 2005. It seems that in the meantime, the petitioner had raised objection on February 9, 2004 about the certificate of validity dated January 1, 2004 issued by the Scrutiny Committee, Nashik, followed by notice through Advocate on April 16, 2004. The concerned officer of the P.C.M.C. put up office note in May 2004 for soliciting the orders on the question as to whether the Respondent No.11 should be promoted to the post of Chief Sanitary Inspector without his claim being verified by the Scrutiny Committee, Pune. The office note records that the Respondent No.11 had produced caste certificate dated July 14, 1987 from Tahasildar, Pune and on that basis he was appointed as a Sanitary Inspector on September 1, 1992. If he has produced the caste certificate from Tahasildar, Pune then he must obtain certificate of validity in respect of the said certificate dated July 14, 1987 from the Scrutiny Committee, Pune. Even the caste certificate dated November 15, 9 2003 issued by S.D.O. Shrirampur was in respect of Educational purposes and not for employment purposes. The said certificate was verified by the Scrutiny Committee Nashik. It was therefore submitted that the Respondent No.11 should not be given promotion to the post of Chief Sanitary Inspector unless he gets his claim verified from the Scrutiny Committee, Pune. It however seems that the Respondent No.11 was promoted to the post of Chief Sanitary Inspector on May 17, 2005. The petitioner also relied upon the complaint dated March 1, 2007, made by Ms.Mohini Prithviraj Kamble, wife of the Respondent No.11 to the Director of the Scrutiny Committee, Pune, as also Municipal Commissioner of the P.C.M.C. wherein she set out that the respondent no.11 originally belongs to Mauje Mudhavi, Taluka Mangalvedha, District Solapur and is Hindu Koli by caste. He obtained the certificate by falsely claiming that he belongs to Mahadeo Koli, a Scheduled Tribe. 6. The petition was heard for admission on November 26, 2008 when the Court was pleased to issue notices to the Respondents returnable on December 10, 2008. The Respondent No.11 filed reply dated June 22, 2009 inter­alia challenging the locus of the petitioner to challenge the certificate of validity dated January 1, 2004. It was submitted that the petitioner was promoted to the post of Sanitary Inspector w.e.f.July 20, 1995 whereas the Respondent No.11 was 10 directly appointed to the said post on September 1, 1992. It was therefore submitted that the petitioner is very much junior to the Respondent No.11. He further alleged that the petitioner is cheater and has played fraud upon various sections of the Society. Reference was also made to the charge­sheet dated December 6, 2008 issued by the P.C.M.C. and pendency of the departmental enquiry against the petitioner in terms of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. It was further submitted that his application for verification was referred to the Scrutiny Committee, Pune when he intended to prosecute further studies. However, the Scrutiny Committee, Pune did not inform him any decision taken thereon. It was submitted that the Respondent No.11 did not receive order dated May 22, 1987 alleged to have been passed by the Divisional Commissioner, Pune Division, Pune till date. It was further contended that the Respondent No.11 originally belongs to Ahmednagar District. He made application to the S.D.O. Shrirampur for grant of the caste certificate. The said authority issued caste certificate in the prescribed form after confirming genuineness of his claim and accordingly caste certificate dated November 15, 2003 was issued. After obtaining the said caste certificate, he moved the Scrutiny Committee, Nashik, who, after conducting thorough home and school enquiry and after objective and subjective satisfaction 11 issued certificate of validity dated January 1, 2004. The Respondent No.11 justified not filling the information in Form E about the proceedings before the Scrutiny Committee, Pune on the ground that he was not aware as to what happened before the said Committee. On these among other grounds, he opposed the petition. 7. On behalf of the P.C.M.C., affidavit was made by Balu Genu Pawar, Administrative Officer on June 25, 2009. It was contended that the P.C.M.C., was not aware of any decision dated May 22, 1987 taken by the Scrutiny Committee, Pune. The Respondent No.11 was promoted to the post of Chief Sanitary Inspector on the basis of caste certificate dated November 15, 2003 issued by the S.D.O. Shrirampur and the said certificate was validated by the Scrutiny Committee, Nashik. The certificate of validity was issued by the Scrutiny Committee Nashik on January 1, 2004. It was also submitted that the order dated May 22, 1987 passed by the Scrutiny Committee, Pune and the certificate of validity dated January 1, 2004 issued by Scrutiny Committee, Nashik, both are in existence. In view of this it was submitted that the petition deserves to be dismissed. 8. On behalf of the Scrutiny Committee Nashik, Ms.Jija Sampatrao Sane, Senior Research Officer made an affidavit on June 29, 2009 upon perusing the official record pertaining to the subject matter of the case and on the basis of information derived therefrom. It was 12 submitted that the Respondent No.11 had duly filled in Form E, as also Form F. In clause 20(3) of Form E pertaining to validation or invalidation of claim from the applicants paternal side, the Respondent No.11 did not fill any information. In so far as Form F is concerned, it was submitted that the Respondent No.11 only mentioned the names of the persons whose claims were validated. He however did not disclose that his claim was invalidated by the Scrutiny Committee, Pune. It was further contended that the Respondent No.11 suppressed the fact that he obtained caste certificate from Tahasildar, Pune which was subsequently invalidated by the Scrutiny Committee Pune by order dated May 22, 1987. It was therefore submitted that the Respondent No.11 did not appear before the Scrutiny Committee, Nashik with clean hands. It was also asserted that the Respondent No.11 obtained caste certificate dated November 15, 2003 from the S.D.O. Shrirampur fraudulently and submitted the same before the Scrutiny Committee, Nashik and obtained the certificate of validity fraudulently. She further contended that the Respondent No.11 obtained three caste certificates from the various authorities viz. Caste certificates dated June 24, 1985, July 14, 1987 & May 19, 1990 from the Tahasildar, Pune and from the S.D.O. Shrirampur on November 15, 2003. It was reiterated that the Respondent No.11 obtained the certificate of 13 validity from Scrutiny Committee, Nashik by suppressing the material facts and by practicing fraud and the said certificate of validity deserves to be cancelled and confiscated in the interest of genuine Scheduled Tribes. 9. The matter was thereafter heard before the Division Bench of this Court on July 27, 2009. The Court directed Mr.M.K.More, Research Officer to get the original file of Scrutiny Committee, Nashik and produce it in the Court on Monday­ August 3, 2009. The Court also directed the Member Secretary Mr.D.D.Mayee who had signed the certificate dated January 1, 2004 to remain present in the Court on the said date. The petitioner made affidavit in rejoinder dated July 6, 2009 in reply to the affidavits made by the P.C.M.C., Scrutiny Committee Pune and the Respondent No.11. It was reiterated that the Respondent No.11 has obtained the certificate of validity dated January 1, 2004 fraudulently and that the P.C.M.C. has not taken requisite steps against the Respondent No.11. It was also submitted that the Scrutiny Committee, Nashik did not follow the due process of law while issuing the certificate of validity on January 1, 2004. However, Ms.Sane rightly pointed out that the Respondent No.11 obtained the certificate of validity fraudulently. He therefore prayed that strict action be taken against the Respondent No.11 for fraudulently obtaining the certificate of validity. 14 10.On August 14, 2009 Ms.Surekha Arvind Shewale, Dy.Director (Research) of the Scrutiny Committee, Nashik made an affidavit. It was set out therein that the order dated December 12, 2003 passed by the Scrutiny Committee, Nashik including the original file could not be traced in the office of the Scrutiny Committee, Nashik. It was set out that as per the information furnished by the Respondent No. 11 in clause No.9 (A) of the Form he disclosed that the ordinary residence of his forefathers is Taluka Rahuri, District Ahmednagar. As per the information furnished in the application, it showed affinity with Mahadeo Koli, a Scheduled Tribe. Thus, considering all the facts, the Scrutiny Committee, Nashik passed order on December 12, 2003 validating the caste certificate of the Respondent No.11. The Scrutiny Committee, Nashik was satisfied about the genuineness of the Tribe claim as per Rule 12 of the Maharashtra Scheduled Tribes (Regulations of Issuance and Verification of) Certificate Rules, 2003 (for short the Rules). It was reiterated that the certificate of validity was issued to Respondent No.11 on January 1, 2004 after following the due procedure. It was further submitted that the original record of the certificate of validity dated January 1, 2004 was in the office of the Scrutiny Committee, Nashik for one and half years i.e.till the time the petitioner collected the information under the Right to Information Act from the Scrutiny Committee, Nashik. However, from 15 the record it appeared that the original proceedings were not kept in the file. It was lastly submitted that since the Scrutiny Committee, Nashik is unable to produce the original file as also the order dated December 12, 2003, the Scrutiny Committee, Nashik is ready and willing to re­examine the tribe claim of the Respondent No.11 in accordance with law. 11.Ms.Jija S.Sane, Senior Research Officer, Scrutiny Committee Nashik made an additional affidavit pointing out therein that the Committee issued show cause notice dated August 25, 2009 calling upon the Respondent No.11 to show cause as to why the action of confiscating the certificate of validity should not be taken against him. It was set out that when the case came for hearing on August 23, 2009 the Court directed production of the file. When the Committee took search of the file, it was found that the said file was missing. The search was taken with Caste Scrutiny Committee situate at Nandurbar, and since the file was not available with the Scrutiny Committee, Nashik as also Scrutiny Committee, Nandurbar, complaint was lodged to the Senior Police Inspector Sarkarwada Police Station, Nashik on August 27, 2009. It was submitted that the file is mis­placed or stolen only after June, 2005. 12.The matter was heard before the Division Bench on November 18, 2009 and by order dated December 2, 2009 the Court issued certain 16 directions to which reference will be made at appropriate place. Suffice is it to say that the Court directed the Scrutiny Committee, Thane to adjudicate the show cause notice dated August 25, 2009 issued by the Scrutiny Committee, Nashik to the Respondent No.11 in accordance with law as expeditiously as possible, but at any rate within a period of two months after giving an opportunity to the Respondent No.11 to defend the show cause notice. The Court also recorded that the Respondent No.11 has filed Writ Petition No.8696 of 2009 at the fag end of hearing of Writ Petition No.7740 of 2008 challenging the order dated May 22, 1987 passed by the Scrutiny Committee Pune. By order dated November 17, 2009, the Court directed for clubbing of both the petitions together. 13.Pursuant to the order passed by this Court, the Scrutiny Committee, Thane adjudicated the show cause notice dated August 25, 2009 and submitted report/order dated February 1, 2010. The Respondent No. 11 amended Writ Petition No.8696 of 2009 filed by him and challenged the report/order dated February 1, 2010 of the Scrutiny Committee, Thane. 14.We have heard Mr. S.D.Thokade, learned counsel for the petitioner, Mr. V. A. Gangal, learned Special Counsel for Respondent Nos.1 to 3 and 5 to 10, Mr. Sudhir Prabhu, learned counsel for Respondent No.4 – P.C.M.C. and Mr. R.K.Mendadkar, learned counsel for Respondent 17 No.11 at length. We have also perused the record that was made available to us. 15.Mr.Thokade, learned counsel for the petitioner submitted that the Respondent No.11 had obtained first caste certificate on June 24, 1985 from Tahasildar, Pune on the basis that his ordinary place of residence is in Pune District. He approached the Scrutiny Committee, Pune for verification of his caste claim as he intended to prosecute further studies. The Scrutiny Committee, Pune called upon the father of the Respondent No.11 to produce certain documents to establish affinity to Mahadeo Koli, a Scheduled Tribe. The Respondent No.11 and his father participated before the Scrutiny Committee, Pune and were also heard by the said Committee. By order dated May 22, 1987 the Scrutiny Committee Pune, after considering the material on record, came to the conclusion that the Respondent No.11 belongs to Koli caste and does not belong to Mahadeo Koli, a Scheduled Tribe. The Scrutiny Committee, Pune forwarded the copy of the said order to the Respondent No.11 at the address mentioned in the application. There is presumption of the existence of the fact viz.service of the said order upon the Respondent No.11, regard being had to common course of natural events, human conduct and public and private business in their relation to the facts of the particular case and the Court may presume that the official acts 18 have been regularly performed. The order dated May 22, 1987 passed by the Scrutiny Committee, Pune clearly records that the copy of the said order was forwarded to the Respondent No.11 on the address mentioned by him in his application. There is presumption that the copy of the said order sent by the said Committee was duly served upon the Respondent No.11. The Respondent No.11 has now falsely claimed that he never received the copy of the said order and he was also not aware as to what transpired before the Scrutiny Committee, Pune. He submitted that this is patently false and fraudulent attempt on the part of the Respondent No.11 in denying service of the order dated May 22, 1987 passed by the Scrutiny Committee, Pune. 16.Mr.Thokade, further submitted that assuming for the sake of argument that the Respondent No.11 was not served with the copy of the order dated May 22, 1987 passed by the Scrutiny Committee Pune, the human conduct and common course of natural events would require that the Respondent No.11 would at least make enquiries in the office of the Scrutiny Committee, Pune as regards the verification of his caste claim. However, the affidavit made by Respondent No.11 does not disclose any such attempt having been made by him. He also submitted that the Respondent No.11 again approached the Tahasildar, Pune for obtaining the caste certificate once again on the basis that he is ordinary resident of Pune District. 19 The said authority issued second caste certificate on July 14, 1987. On the strength of this certificate, the Respondent No.11 was appointed as a Sanitary Inspector by the P.C.M.C. on September 1, 1992. The P.C.M.C. ought to have referred the caste claim of the Respondent No.11 to the Scrutiny Committee, Pune at the earliest and at any rate in the year 1998 since the Respondent No.11 got appointment on the basis that he belongs to Scheduled Tribe. However, the P.C.M.C. did not refer the claim of the Respondent No. 11 to the Scrutiny Committee, Pune which reflects sheer callous attitude on the part of the P.C.M.C. . Even the Respondent No.11 did not approach the Scrutiny Committee, Pune for verification of his caste