WP No. 846/09 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 846 OF 2009 Deepak s/o. Balasaheb Kurhade, Age 50 yrs., Occu. Social work, At present Member of Shrirampur Municipal Council, Education Board, Shrirampur,Dist. Ahmednagar. R/o. Ward No. 7, Suryanagar, Tq. Shrirampur, Dist. Ahmednagar. ....Petitioner. Versus 1. The State of Maharashtra, Through its Secretary, Tribal Development Department, Mantralaya, Mumbai. 2. Divisional Caste Verification Committee, Nashik No. 1 Nashik Division Nashik Through its Member Secretary. 3. Chief Officer, Municipal Council, Shrirampur, Tq. Shrirampur, Dist. Ahmednagar. 4. District Collector, Ahmednagar, Dist. Ahmednagar. ....Respondents. Mr. N.B. Khandare, Mr. Sandeep Deshmukh & Mr. A.M. Karad, Advocates for petitioner. Mr. K.G. Patil, A.G.P. for State. Mr. V.S. Bedre, Advocate for respondent No. 3. WP No. 846/09 2 CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Reserved on : 12th September 2011. Pronounced on : 16th September, 2011. ORDER : [ PER T. V. NALAWADE, J. ] 1. The petition is filed under Articles 226 and 227 of Constitution of India to challenge the order made by the Caste Scrutiny Committee of Nashik Division. The Committee has rejected the claim of the petitioner that he belongs to "Wadar" community, a Scheduled Caste. The Committee has further declared that the petitioner is not entitled to take any benefit as a member of Scheduled Caste. 2. It is the case of the petitioner that his parents were resident of Bhalki which is now part of Karnataka State. It is contended that Bhalki was part of a Bombay State prior to reorganaziation of the States which took place in or about 1962. He has contended that his father has obtained the caste certificate dated 30.11.1993 from Tahsildar Bhalki and on that basis, caste certificate is issued to the petitioner by Sub Divisional Officer, Shrirampur, Dist. Ahmednagar, Maharashtra State on 22.2.2003. The petitioner is Member of Shrirampur Municipal Council and he is also elected as a Member of Education Board of Municipality from reserved category, Scheduled Caste category. WP No. 846/09 3 As he contested the election from reserved category, his caste certificate came to be referred to the Scrutiny Committee and the Scrutiny Committee has rejected the claim. The Committee has observed that the petitioner is migrant to Maharashtra and so he is not entitled to the benefits of Scheduled Caste. 3. In the petition both the sides are heard. It was submitted for the petitioner that as his parents were resident of Bhalki on the date of Presidential Order and even prior to that date and as Bhalki was part of Bombay State, he cannot be treated as a migrant. It was submitted that the caste certificate was issued to him in Maharashtra State on the basis of Government Resolution of Maharashtra State, dated 1.8.1965 and so he is entitled to get benefit available to persons of Scheduled caste. It was submitted that in Karnataka State "Wadar" caste is included in Presidential Order as a Scheduled Caste and so he is entitled to get validity certificate. It was also submitted that the Caste Scrutiny Committee ought to have held detailed inquiry as expected under the Rules and at the outset, his claim cannot be rejected by observing that he is migrant. 4. The State and Caste Scrutiny Committee opposed the claim of the petitioner. Some reported cases were cited. The case WP No. 846/09 4 reported as 2010 (2) Bom. C. R. 497 [Shweta Santalal Lal Vs. State of Maharashtra and Ors.] decided on 3.3.2010 shows that following question was referred to the Full Bench of this Court. "Whether a person who was not ordinarily resident as on the date of the relevant Presidential Notification in the area that now constitutes the State of Maharashtra will be entitled to the benefit of reservation in the State." The Full Bench has answered this question as follows :- "In case of a migrant belonging to a Scheduled Caste, not ordinarily resident as on 10.3.1950 in the area that now constitutes the State of Maharashtra and in a case of S.T., considering Rule 5, on 6.9.1950, would not be entitled to benefits of reservation as S.C./S.T. in the State of Maharashtra. They and their progeny will continue to get the benefit of reservation in the State of origin. Reference answered accordingly." 5. The Full Bench has relied on two landmark decisions of the Constitution Bench of Apex Court like (1990) 3 S.C.C. 130 [ Mari Chandrasshekhar Rao Vs. Dean, G.S. Medical College ] and Action Committee's case reported as (1994) 5 WP No. 846/09 5 S.C.C. 244 [ State of Maharashtra Vs. Union of India ]. For giving the aforesaid findings, the Apex Court has relied and referred to the following observations of the Apex Court from Action Committee's case. In Action Committee's case the Apex Court has discussed various relevant notifications and correspondence of the State. The relevant correspondence dated 12.2.1981 is as under :- "it is further clarified that in order to become eligible for being treated to be a member of Scheduled caste/Tribe in relation to the State of Maharashtra a person should be a permanent resident of the State of Maharashtra before 10.3.1950 and 6.9.1950, respectively, the dates of the notifications of the respective Presidential Orders of 1950 scheduling the castes/tribes in relation to the State of Maharashtra. Since there was no State of Maharashtra in 1950, it would be reasonable to understand it to mean the geographical area now forming part of the State of Maharashtra." 6. In Action Committee's case the answer given by Dr. Ambedkar to a question asked for similar problem is also considered. Dr. Ambedkar had expressed that a member of Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the previleges that he is entitled to when he is residing in a scheduled area or WP No. 846/09 6 tribal area. The challenge to this proposition in the light of Articles 14 and 15 of the Constitution is considered by the Apex Court in both the cases cited supra. Implications of Articles 341 and 342 of Constitution are considered and the Apex Court has laid down that a migrant cannot carry the benefits of his status (SC/ST) from his original State to other State. 7. Admittedly, Bhalki is not part of the State of Maharashtra now. So even if the case of the petitioner that in the past Bhalki was part of the Bombay State, is accepted as it is, that will not help the petitioner for getting any relief. 8. The Full Bench has also considered the Rule 5 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of Certificate) Rules 2003 and the following portion is quoted in the decision by Full Bench :- "5. Grant of Scheduled Tribe Certificate to migrated persons. (1) Migration from other States to Maharashtra State :- (a) ..... (b) ..... (c) A Scheduled Tribe Certificate holder who has migrated to Maharashtra from the State of his origin for the purpose of seeking education, WP No. 846/09 7 employment etc., will be deemed to be a Scheduled Tribe of the State of his origin and will be entitled to derive benefits from the state of his origin and not from the state of Maharashtra. Explanation.- For the purpose of sub-rule (1), "Migrant from other State" means.- (i) a person who has migrated to Maharashtra State from any other State/Union Territory on or after the First Presidential Order i.e. 6th September 1950; (emphasis supplied). (ii) a person whose tribe is scheduled as a Scheduled Tribe in his original State, but not in Maharashtra State and the person whose tribe is scheduled as Scheduled Tribe in Maharashtra State as well as in his original State having his ordinary residence on the date of the notification of Presidential Order scheduling his tribe has been in the State/Union Territory other than Maharashtra would both be treated as migrants." On the basis of this Rule, the Full Bench has held that both the classes of migrants mentioned in the Rule will be treated as belonging to Scheduled Tribe in the State of their origin and will be entitled to derive benefits in the State of their origin and not WP No. 846/09 8 from the State of Maharashtra. In view of the Rule, it is observed that the cut off date is 6th September 1950 for Scheduled Tribes and the cut off date is 10th March 1950 for Scheduled Castes. The facts of the case show that even in 1993 the parents of the petitioner could obtain caste certificate from Bhalki, Karnataka State and so inference is easy that the petitioner came to Maharashtra after the cut off date. In view of the facts of the case and the aforesaid position of law, the petitioner needs to be treated as migrant and so there was no need to make further enquiry. 9. The record produced by the petitioner shows that "Wadar" caste is treated as equivalent to Schedule Caste "Bhovi" in Karnataka State. The Presidential Order shows that this caste is not included in the Constitution (Scheduled Castes) Order, 1950 issued for Maharashtra State. The caste certificate issued in Maharashtra State to the petitioner shows that it was issued on the basis of caste certificate issued in Karnataka State. It also shows that it is to the effect that the petitioner is of "Wadar" caste which is Scheduled Caste for the State of Karnataka. In view of this circumstance, there cannot be verification of such certificate in the State of Maharashtra where the Committee is constituted under the Rules framed by Maharashtra State. WP No. 846/09 9 10. The Full Bench has referred one more landmark case of Apex Court viz. (2001) 1 S.C.C. 4 [ State of Maharashtra Vs. Milind & Ors.]. This is in relation to powers of Courts with regard to present problem. The observations from this reported case are quoted by Full Bench and they are as under :- "15..... Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, subcaste; a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said article, it is expressly stated that the said Orders cannot be amended or varied except by law made by Parliament." As "Wadar" caste is not included in Presidential Order issued for Maharashtra State as Scheduled Caste, the Court cannot discuss more and particularly about the entitlement of the petitioner in this regard. 11. Some more reported cases were cited for the petitioner like 2007 (6) Bom. C. R. 332 [ Sheetal Manikrao Dupare Vs. State of Maharashtra & Ors. ] and 2006 (Supp.) Bom. C. R. 797 [ Santosh Singwa Padoti Vs. Caste Scrutiny WP No. 846/09 10 Committee & Anr. ]. A copy of judgment delivered by this Court (Principal Seat) in Writ Petition No. 2736/1998 [Ku. Rachna d/o. Shasikant Champaneri Vs. The State of Maharashtra & Ors.] is also produced. This petition came to be decided on 18th June 1998. At paragraph No. 24 the Full Bench has disapproved and overruled the view taken by this Court in aforesaid two reported cases and it is further made clear that other judgments not brought before the Full Bench in this regard are also overruled. In view of this position, there is no need to discuss the cases cited for the petitioner. 12. We place reliance on a judgment reported in 2007 (3) Bom. C.R. 555 [Nanda Yadavrao Shankhpale & Ors. Vs. State of Maharashtra & Ors.]. 13. In view of the aforesaid position of law and the facts of the case, no inference is warranted in the order made by the Caste Scrutiny Committee. So the petition stands dismissed. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/wp846.09