1 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 11678 OF 2010 *** Virsang S/o Mahaling Swami, Age: 46 years, Occu.: Service as Junior Engineer, Maharashtra State Road Transport Corporation Division, Beed, R/o: C/o Ashirwad Building, Vishal Nagar, Barshi Road, Latur, Dist.: Latur. ... PETITIONER. VERSUS 1. The State of Maharashtra Through its Secretary, Social Justice Department, Mantralaya, Mumbai-32. 2. The Scheduled Castes, Vimukta Jatis, Nomadic Tribes, Other Backward Class & Special Backward Class Divisional Caste Certificate Scrutiny Committee, Committee No.2, Aurangabad ` Division, Latur, Dist. Latur, Through its Member Secretary. 3. Maharashtra State Road Transport Corporation, Central Office, Maharashtra Vahatuk Bhavan, Dr. Anandrao Nair Marg, Mumbai - 400 008, through its Dy. General Manager (P&IR). 4. The Divisional Controller, Maharashtra State Road Transport Corporation Division Beed, Dist. : Beed. 2 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ 5. The Divisional Controller, Maharashtra State Road Transport Corporation Division, Beed, Dist. Beed. ... RESPONDENTS *** Mr. P. G. Rodge, Advocate i/b Mr. P. G. Gunale, Advocate for the Petitioner. Mrs. A. V. Gondhalekar, A.G.P. for Respondent Nos.1 and 2. Mr. B. B. Yange, Advocate for Respondent Nos.3 to 5. *** CORAM: D. B. BHOSALE AND S. B. DESHMUKH,JJ. DATED:- 8th JUNE, 2011. JUDGMENT [PER DESHMUKH, J.]: 1. Heard learned counsel for parties. 2. Rule, made returnable forthwith and heard finally by consent of the parties through their learned counsel. 3. The petitioner challenges the judgment and order passed by Respondent No.2 Scheduled Castes, Vimukta Jatis, Nomadic Tribes, Other Bakcward Class & Special Backward Class Divisional Caste Certificate Scrutiny Committee, Committee No.2, Aurangabad Division, Latur, District Latur (the Respondent No.2 Committee, for short). This order is passed on 9th December, 2010. 3 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ 4. The petitioner claims to belong to "Bedajangam" Scheduled Caste. The petitioner claims that he had applied to Tahsildar and Taluka Executive Magistrate, Degloor District Nanded for grant of caste certificate. According to the Petitioner, caste certificate that petitioner belongs to Bedajangam Scheduled Caste was issued in his favour by Tahsildar and Taluka Executive Magistrate on 6th April, 1993. Petitioner states that he has acquired Diploma in Civil Engineering somewhere in the month of May, 1987. He was appointed by Respondent No.4 to the post of "Building Inspector" after following due procedure. His appointment was against reserved post i.e. scheduled caste. This appointment was issued in favour of the petitioner somewhere on 5th October, 1989. Exhibit-F (page 35) is the copy of the appointment order. Petitioner was confirmed, on the post of Junior Engineer (C) on 6th January, 1998. Thus, petitioner's initial appointment with Respondent No.4 has been against Scheduled Caste reservation and his promotion is also again on his alleged status of person belonging to scheduled caste i.e. Bedanangam. 4 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ 5. The petitioner claims that his grand-father viz. Vishwanath Virsang Swami was resident of village Naai Chakur, Taluka Omerga, district Osmanabad. Consequently, Petitioner claims that he is resident of same village Naai Chakur, Taluka Omerga, district Osmanabad. According to the petitioner, caste of his grand-father Vishwanath Virsang has been recorded as Bedajangam in old revenue record of 1951 and 1954. He further states that his grand-father and ancestors in fact were residing at village Takali Jahagir, Taluka Degloor, district Nanded in the year 1357 Fasli (1947 A.D.). They shifted from village Takali Jahagir Tq. Degloor Dist. Nanded to village Naai Chakur, Taluka Omerga, district Osmanabad somwhere in 1947. The petitioner's contention is that when his grand- father was residing at Takali Jahagir Tal. Degloor, district Nanded, was prosecuted for a criminal case and charge sheet was submitted to learned Judicial Magistrate First Class, Gulbarga (C.C. No.423 of 1957 Fasli / 1947 A.D.). In the charge sheet of criminal case caste of the grand father of the petitioner was shown as Bedajangam. 6. The Respondent NO.4 indsputedly directed the 5 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ Petitioner to submit proposal for verification of his social status claim with all documents somewhere in the year 2009. IN view of this direction, Petitioner submitted a proposal on 27th March, 2009 with documents. This proposal received from the Petitioner for verification of his social status was referred by Respondent no.4 to Respondent No.2 Committee on 31st March, 2009. 7. The Respondent No.2 Committee, on receipt of the proposal from Respondent No.4, regarding verification of social status claimed by the petitioner, issued notice of personal hearing to the petitioner. The Respondent No.2 Committee directed the school and home inquiry through vigilance cell. The petitioner participated in the inquiry, submitted various documents to the officers of the vigilance cell. His stand was that his grand father Vishwanath Virsang Swami was resident of village Naai Chakur, Taluka Omerga District Osmanabad and his caste has been recorded in Revenue Record as Bedajangam. He also emphatically submitted that C.C. NO.423 of 1957 Fasli (1947 A.D.) was pending in the Court of learned Judicial Magistrate, First Class. In that 6 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ criminal case, caste of the grand father of the petitioner was shown as Bedajangam. The petitioner also submitted some record in relation to his social status claimed. According to him, there the caste of the petitioner was recorded as Bedajangam in primary school record. In paragraph 3 of the judgment Respondent No.2 committee observed that entry in the school record of the Petitioner makes mention of his caste as "Hindu Bedajangam". This entry committee found to be suspicious. Apart from this, in our opinion, petitioner took admission in first standard, in this primary school, on 1st August, 1971. This is recent document, could not be accepted. We are in agreement with the committee's observations regarding this entry. There is no dispute amongst the parties that after completion of Vigilance Cell inquiry, report came to be submitted on 7th June, 2010 to the Respondent No.2 Committee. The copy of the report has been furnished to the Petitioner. Said copy is also on record. The vigilance cell inquiry report shows that ancestors or grandfather of the petitioner were not originally residents of village Naai Chakur, Taluka Omerga, district Osmanabad or Takali 7 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ Jahagir, Taluka Degloor, district Nanded. The vigilance cell officials found that family of the petitioner i.e. grandfather of the petitioner was originally resident of village Mankhed, Taluka Ahmedpur, district Latur. The Vigilance Cell report, therefore, turns down the contention of the petitioner that ancestors or grandfather of the petitioner were resident of village Naar Chakur, Taluka Omerga, District Osmanabad or of village Takali Jahagir, Taluka Degloor District Nanded. This finding of the Vigilance Cell officials was based on the oral and documentary evidence which they could collect during the course of the inquiry. 8. The petitioner does not dispute that copy of the vigilance cell report was furnished to him. The petitioner in response to the show cause notice submitted his reply on the findings of vigilance cell report to the Respondent No.2 Committee. 9. The petitioner, seriously disputed said report. The petitioner contended that old Revnue Record of 1951 and 1955 shows that grand father Vishwanath Virsang Swami was resident of village Naai Chakur, Taluka Omerga, District Osmanabad. 8 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ According to him, caste of his grand father has been recorded as Bedajangam in chargesheet of the criminal case C.C.No.423 of 1957 Fasli (1947 A.D.) filed in the Court of learned Judicial Magistrate, First Class, Gulbarga. 10. Learned counsel for the petitioner contends that the judgment of the Respondent No.2 committee is per-se illegal. He took us to the observations made by the Respondent No.2 committee in para 3 of the judgment. According to him, the document at Serial No.3 issued by the Tahsildar, Omerga is a copy of the census register of 1951. This document shows name Vishwanath Wirsing i.e. grandfather of the present petitioner, Trivenibai Vishwanath, Mahaling Vishwanath, Kusumbai Vishwanath etc. In the remarks column of this document, entry as Bedajangam appears. According to learned counsel, this document, therefore, establishes that the caste of grandfather of the petitioner is mentioned in this document as Bedajangam. It appears that the Committee did not accept the argument of the petitioner based on this document. At the close of para 3 Respondent no.2 committee came to a conclusion that column Nos.1 and 2 of this document 9 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ of census of 1951, were for recording some special remarks. This document shows that there ware no instructions to record caste of the person in this column. Despite this fact, the caste as Bedajangam has been mentioned. The Respondent No.2 Committee thus did not accept this document showing caste of grandfather of the petitioner as Bedajangam Scheduled Caste. 11. Learned counsel for the Respondent no.2 Committee made available original record maintained by the Respondent no.2 Committee. This copy of the census of 1951 is available for perusal to the learned counsel for the Petitioner. We ourselves have carefully considered this document i.e. copy of the extract of census register, 1951. It is at page No.44 in the file. This copy appears to have been issued by the Tahsildar, Omerga. There are about 16 columns in this extract. In column NO.4 names of five persons viz. (1) Prayagbai (not readable), (2) Trivanbai W/o Vishwanath, (3) Vishwanath S/o Virsang, (4) Mahaling S/o Vishwanath and (5) Kusum D/o Vishwanath are mentioned. Column No.5 reads as "relation with manager of the family". That column is blank, meaning thereby 10 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ relation of these five persons inter-se has not been mentioned. Thereafter, column No.6 pertains to gender as to whether the person is male or female. Column No.7 is relevant which titles as religion. Religion of any of the five persons is not mentioned in this column. Thereafter comes column No.8 which titles as special class. In this column No.8, we find only one entry against the name of grandfather of the petitioner as Bedajangam. So far other persons are concerned, some numerical numbers are mentioned. Suffice to notice that Bedajangam is the entry mentioned only against the name of Vishwanath Virsaqng. The petitioner claims that name of the person in this document which is mentioned as Vishwanath Virsang is name of his grandfather. Learned counsel for the Respondent No.2 committee strongly opposed this submission. He submitted that Surname Swami as claimed by the present petitioner is not mentioned in this document. Sofaras name of the person mentioned in this document contains only first name Vishwanath, second name or father's name Virsang. The surname is conspicuously absent. According to the learned counsel for the Respondent No.2 11 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ Committee this document cannot be said to be in relation to grandfather of the present petitioner. 12. We have considered the submissions of learned counsel. We have also taken into account finding recorded in para 3 of the judgment regarding this document, by the respondent No.2 committee. It is not possible for us to agree with the submission of the learned counsel for the petitioner that name mentioned in this document i.e. Vishwanath Virsang with caste as Bedajangam is a name of the grandfather of the present petitioner. 13. Learned counsel for the Petitioner thereafter contended before us that old revenue record of 1954-55 is placed on record. It is 7/12 extract. With the assistance of learned counsel present before the Court, we have seen original Khastra Patrak from the file maintained by the Respondent No.2 Committee. This Khasra Patrak is for the year 1954-55. This Khasra Patrak shows the name of village Chakur, Taluka Omerga, district Osmanabad. Agricultural land appears to be survey No.201. We have seen other details of this document Khastra Patrak. Learned counsel for the Petitioner took us to the endorsement in column No.15 of this extract. 12 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ It appears that in other rights column endorsement reads as "protected tenant Vishwanath and Virsing" ( ििशदनाथिििरििंग) Bedajangam. We have been taken to the finding of the Respondent No.2 Committee in paragraph 4 of the judgment. The committee observed that this Khasra Patrak though pertains to agricultural land survey No.434, register maintained by the competent authority shows the name of Harnabai at serial No.409 and there the entry in the name of Vishwanth S/o Virsang Swami does not appear. It has further observed that petitioner's place of residence is Ahmedpur. However, he has obtained this document to suit his purpose. Since this document is maintained by the Revenue Authorities this remark column contains some remark regarding status of the person as tenant. Learned counsel for the Petitioner emphasises on the endorsement as "protected tenant Vishwanath Virsang Bedajangam". The learned counsel for the Respondent No.2 Committee strongly contended that this document also does not show surname of the person as Swami or any other surname. According to him, similarity of two names i.e. first name Vishwamanath and 13 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ father's name Virsang, is not sufficient to come to a conclusion that this document pertains to grandfather of the present petitioner and status of the grandfather of the petitioner is shown as Bedajangam. 14. Learned counsel for the Respondent No.2 Committee in support of his submission invites our attention to the copy of the document maintained by the Respondent No.2 Committee in its file. This document dhows the name of the father of the petitioner as Mahaling Vishwanath Swami. Caste of this person in this document is mentioned "Jangam" and not as "Bedajangam". Place of resident of father of the petitioner, in column No.3 of this document is shown as Makhed, Taluka Ahmedpur, district Latur. Column Nos.5 of this document is important, which records date of birth of christan era as nearly as possible. There, date of birth of father of the petitioner is mentioned as "3.10.1941." It appears that father of the present petitioner had taken primary education in this school. Most important to notice is a fact that caste of the father of the petitioner viz. Mahaling Vishwanath Swami is mentioned in this document in 14 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ column No.2 is "Jangam" only and not "Bedajangam". The Respondent No.2 committee has justifiably noticed difference of caste "Jangam" which is not scheduled caste and Bedajangam which is recognised as scheduled caste. Learned counsel for the Respondent, therefore, submitted that caste of the father of the petitioner was shown as Jangam and not as Bedajangam as claimed by the petitioner. According to learned counsel for the Respondent No. 2 Committee caste flows from the father. We have also made available this document for inspection to the learned counsel for the petitioner. 15. Learned counsel for the petitioner would submit that copy of the extract of Criminal Case No.423 of 1957 Fasli (1947 A.D.) i.e. charge sheet submitted to the learned Judicial Magistrate, First Class, Gulbarga shows caste of the grandfather of the petitioner as Bedajangam. Copy of said document is at page No.17 of the original file. We have seen this document. It appears that the copy is at page No.18 of the original papers maintained by the Committee. However, said document is in Urdu script. We find that translated copy in vernacular is on record, page 17. In this copy, at 15 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ serial No.3 name is mentioned as "Vishwanath S/o Virsang Swami Bedajangam" resident of Takali, Taluka Degloor, district Nanded. The counsel for the Petitioner submitted that this document clearly shows the name of the grandfather of the petitioner that his surname as Swami and caste as Bedajangam Scheduled Caste. He, therefore, heavily relies on this copy of the document. Per-contra, learned counsel for the Respondent No.2 Committee took us to paragraph 6 of the judgment. In this paragraph 6, the Committee recorded a finding regarding this document. It appears that vigilance cell officer, in the course of verification, found that original document of this chargesheet of criminal case No. 423 of 1957 Fasli (1947 A.D.) was not available in the Court of learned Judicial Magistrate, First Class, Gulbarga. He, therefore, could not verify whether copy made available by the petitioner in Urdu script and translated copy in vernacular was correct. The Respondent No.2 committee, therefore, justifiably did not accept this copy as correct copy of the document allegedly copy of the charge sheet submitted to the learned Judicial Magistrate, First Class, Gulbarga wherein name of grandfather 16 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ of the petitioner was mentioned with surname Swami and caste as Bedajangam. Further original place of residence of grandfather of the petitioner cannot be confirmed based on this document. In other words, there is discrepancy. For these reasons, the Respondent No.2 Committee had rejected this document. 16. We have considered entire material which is brought on record by the petitioner in support of his social status claim. We have also taken into account report of the vigilance cell of the Respondent No.2 Committee. It appears that the officials concerned have recorded statements of various persons from village Takali Jahagir, Taluka Degloor, district Nanded. They found that Virsang Mahaling Swami, Mahaling Vishwanath Swami or Vishwanath Virsang Swamy were not residents of said village. A statement is made that such family was never residing at village Takali Jahagir earlier and now also. This report further shows that vigilance cell officers have also visited village Mankhed, Taluka Ahmedpur, district Latur because of the information supplied by the Petitioner. There also they have made inquiry however could not found 17 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ ancestor's house or agricultural land of petitioner in the name of the family of the petitioner. They came across an elderly lady Laxmibai, mother of the petitioner. They recorded her statement. They also found that grandfather of the petitioner was residing at that village Mankhed, was cultivating the agricultural lands and has died. They further came to know on inquiry that grandfather of the petitioner had taken birth in that village and was having only son Mahaling, father of the present petitioner. The vigilance cell officers also found that ancestors of the present petitioner were educated and having sound financial position. Vishwanath i.e. grandfather of the present petitioner was also running private school in the village. Most important is that in the inquiry they found that ancestors of the present petitioner never performed last rites of scheduled caste person neither performed spiritual ceremonies. For this purpose, they have recorded statements of persons belonging to Scheduled Caste. 17. We have given due consideration to the submissions of learned counsel for the parties. We have also considered the entire documentary 18 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ evidence available on record. Judicial review by this Court under Article 226 of the Constitution has its own limitations. It is settled law that this Court is neither exercising revisional or appellate jurisdiction in relation to judgment of the Respondent No.2 committee. We do not find any material on record showing ethnic linkage of the petitioner to Bedajangam Scheduled Caste. We have considered copy of Exhibit-I affidavit of one Mr. Udhav S/o Narayan Gaikwad, resident of Mankhed, Taluka Ahmedpur. In our opinion, this affidavit sworn in by this person on 9th March, 2009 cannot be accepted against the material collected by the vigilance cell officers during enquiry regarding affinity test. 18. In our opinion, there is no perversity in the judgment of the Respondent No.2 Committee. Petition filed by the petitioner is devoid of substance. Writ petition is dismissed. Interim order, if any, stands vacated. [S. B. DESHMUKH, J.] [D. B. BHOSALE, J.] Dated:08/06/2011. ans/11678 19 WRIT PETITION NO.: 11678 OF 2010 Virsang S/o Mahaling Swami V/s The State of Maharashtra and others ____________________________________________________________________________ WRIT PETITION NO.: 11678 OF 2010 Date of decision: 8th JUNE, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE D. B. BHOSALE THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE