1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR WRIT PETITION NO.4088 OF 2009 (Prashant J. Sirsikar ..vs. State of Maharashtra and others) ------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Shri N. Phadnis, Counsel for the petitioner, Shri S.M. Puranik, Counsel for respondent No.2, Shri V.G. Wankhede, Counsel for respondent No.3. CORAM:- D.B. BHOSALE AND P. B. VARALE, JJ. DATED :- 01 st JULY, 2010 1. Heard learned Counsel for the parties. 2. By this writ petition, the petitioner is seeking declaration that the re-verification process initiated by respondent No.2-Caste Scrutiny Committee in respect of the petitioner's caste claim is wholly without jurisdiction and contrary to law and deserves to be quashed and set aside. There is no dispute that respondent No.3-Employer has forwarded the petitioner's application for issuance of validity certificate to the Caste Scrutiny Committee at the request of the petitioner made by his letter dated 06-02-2009 (Annexure-E). 3. The petitioner is seeking the relief as aforementioned on the basis of the order dated 25-11-1981 passed by the Assistant Secretary to the Government of Maharashtra, 2 Social Welfare and Sports Department. By this order, according to the petitioner, his caste claim had been verified and validated by the Assistant Secretary and in view thereof, his caste certificate cannot be forwarded for re-verification to the Caste Scrutiny Committee. He submitted that the certificate issued by the Assistant Secretary is valid and binding. In support of this contention, he placed heavy reliance on the judgment of this Court in Raju s/o Pundlikrao Burde .vs. Establishment Officer (III-B) Maharashtra State Electricity Board, Mumbai and another, 2003(4) Mh.L.J. 780. We have perused the said judgment and more particularly paragraph 9 thereof. It would be advantageous to reproduce the relevant observations in paragraph 9 of the judgment for better appreciation of the contentions urged by learned Counsel for the petitioner. “9. ….........We have perused the scheme of the Act. The preamble reveals that the said Act is made for the purpose of providing a mechanism for regulation of issuance of verification of caste certificate to the person belonging to Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category and for matters connected therewith or incidental thereto. 3 Prior to the coming in force of the Act No. XXIII of 2001, the subject of caste verification viz. issuance of caste certificate and their scrutiny was regulated by the scheme framed by the Apex Court in Madhuri Patil's case. Prior thereto, in the State of Maharashtra, Government had issued executive instructions and the issuance of caste certificate and its verification was regulated under the Government Resolutions by the Competent Authorities constituted under the said Government Resolution. It is an admitted position that the scheme in regard to issuance of caste certificates and their verification in the year 1982, was that there was a two tier system made to adjudicate the caste claim. In the first instance, it was the Director of Social Welfare, Pune who was to consider the caste claim and pass an appropriate order and the said order was subject to an appeal before the Divisional Commissioner. A full proof enquiry was contemplated under the Government Resolution, pursuant to which orders were passed by the authorities. The said orders were binding on the parties. Needless to mention that the orders passed by the authorities dealing with caste claim were quasi- judicial orders passed on the basis of evidence and material on record.” (emphasis supplied) 4 4. From bare perusal of the observations made in the Raju's case (Supra), it is clear that there was a two tier system made to adjudicate the caste claim. In the first instance, it was the Director of Social Welfare, Pune, who was to consider the caste claim and pass an appropriate order and the said order was subject to an appeal before the Divisional Commissioner. The order on which the petitioner relies upon in the present petition is passed by the Assistant Secretary and not by the Divisional Commissioner. 5. Learned counsel for the petitioner, therefore, submits that at the relevant time the powers were conferred on the Assistant Secretary, Government of Maharashtra to decide the appeals against the order of the Director of Social Welfare vide Government Resolution dated 24-02-1981. We have perused the said G.R. There is yet another Government Resolution dated 09-11-1981 and by that Resolution the Government had again conferred the power to hear appeals to the respective Divisional Commissioners, preferred by the aggrieved candidates against the decision of the Committee. In view of this Government Resolution, in our opinion, it was necessary for the Government to forward/transfer the petitioner's appeal to the Divisional Commissioner for its decision. 5 6. The Assistant Secretary, however, proceeded to decide the appeal by order dated 25-11-1981 i.e. after the G.R. dated 09-11-1981, which reads thus; “Shri Prashant J. Sirsikar has preferred an appeal against the order of the Director of Social Welfare, Pune rejecting his claim for the reserved seats for Scheduled Tribes. Under Government letter No. CBC- 1680/65396/(499)/D-V, dated 24th February, 1981 a committee of (1) Director of Social Welfare, Pune (2) Deputy Director of Social Welfare, Pune and (3) Director, Tribal Research and Training Institute, Pune, was set up to verify the Caste Certificates of the students who seek admission in the Medical and Engineering Colleges against the reserved seats. The above referred Committee has enquired into the Caste of Shri Prashant J. Sirsikar and has come to the conclusion that he does not belong to Scheduled Tribes and therefore on behalf of the committee the D.S.W., M.S. Pune has asked the Principal, College of Engineering, Amraoti not to admit Shri Prashant J. Sirsikar against the reserved Seat for Scheduled tribes. Against the above decision the applicant has preferred an appeal to Government. Government has considered the evidence produced by the applicant and has accepted 6 his contention that he belongs to Halba community which is included in the list of scheduled Tribes in the State of Maharashtra. The order issued by the Director of Social Welfare, Maharashtra State, Pune, is therefore, set aside and appeal is granted.” 7. Learned counsel for the petitioner submits that the Government Resolution dated 9th November, 1981, conferring the power to hear and decide the appeals again on the Divisional Commissioner, had a prospective effect and since the petitioner's appeal was filed before issuance of the said G.R., it was rightly decided by the Assistant Secretary vide order dated 25-11-1981. In our opinion, the submissions advanced by the learned counsel for the petitioner are devoid of any merits. On bare perusal of the Government Resolution dated 09-11-1981, it is clear that all the appeals, which were pending before the State Government were directed to be decided by the Divisional Commissioners for the reasons stated therein. The relevant paragraphs in the Government Resolution dated 09-11-1981 reads thus: “It is the experience of Government that the above procedure is quite expensive to the candidates coming from all over the State. Secondly, there is no machinery at Mantralaya 7 lever to verify the validity of the caste certificates issued by Executive Magistrates. Thirdly, the Executive Magistrates who are competent to issue the caste certificates are under the administrative control of the Divisional Commissioners. It is, therefore, felt expedient that the Divisional Commissioners should decide the appeals against the decision of the Committee mentioned in paragraph 1 above. Government is therefore pleased to direct that henceforth the respective Divisional Commissioners should decide the appeals preferred by the aggrieved candidates against the decision of the above committee. The Divisional Commissioners should decide the appeals of such candidates who are ordinary residents of their jurisdiction. As Government attaches utmost importance to safeguard the interests of the backward classes, it is further decided that Commissioners should not delegate this power to any other subordinate officer.” 8. We find no merits in the submissions advanced by the learned counsel for the petitioner, hence, the Writ Petition is dismissed. JUDGE JUDGE pma 8