1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1609 OF 2010 (Rajeshwar S. Dhakate vs. State of Maharashtra & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI & A.P. BHANGALE, JJ. DECEMBER 07, 2011. Heard Shri Madkholkar learned counsel for the petitioner, Smt. Dangre, learned Additional GP for respondents No. 1, 2, 3 & 5 and Shri Sambre, learned counsel for respondent No. 4. The petitioner, a candidate belonging to Scheduled Tribe – Halba, has assailed the order of Scrutiny Committee, invalidating his caste claim passed on 22.03.2010. He is in service of Respondent No. 2 and by interim orders, this Court has protected him. Shri Madkholkar, learned counsel contends that the Scrutiny Committee has to apply its mind at two stages. First, it has to consider documents which are submitted by the petitioner and if it is satisfied that further enquiry is required, then only matter can be sent to Vigilance Cell authorities. He has contended that here there is no such exercise. Without prejudice, he points out that the Research Officer did not accompany Vigilance Cell Officer for field enquiry and only Police 2 Officer visited the office of the petitioner and then the shop of brother of the petitioner. The native place of the petitioner was not visited and no statement of elderly members in the family have been recorded. He is relying upon the judgment of the Hon'ble Apex Court in the case of Anand vs. Committee for Scrutiny and Verification of Tribe Claims, reported at 2011 (6) Mh. L.J. 919, to point out the nature of enquiry envisaged by Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance & Verification of) Caste Certificates Act, (hereinafter referred to as Act No. 23 of 2001). He has also invited our attention to objection dated 20.07.2009 filed before the Scrutiny Committee after receipt of Police Vigilance Cell Report. The learned counsel further states that when action of invalidation of caste claim and further action in terms of Section 11(2) of Act No. 23 of 2001 has been ordered by the Committee, the same could not have been undertaken without show cause notice and an opportunity to the petitioner. His contention is, said action needs to be treated as independent and separate action unconnected with the enquiry into validity. It is pointed out that the petitioner has joined the service in 1993 and as per policy decision of State Government, as his recruitment is prior to 15.06.1995, the same has been protected. He further points out that 3 here the petitioner has been promoted later on vide order dated 20.12.1997 and that is being treated as fresh employment and, therefore, benefit of protection as envisaged by said policy decision is being denied to the petitioner. He is relying upon several judgments of the Hon'ble Apex Court in this respect to urge that grant of such protection is essential. Mrs. Dangre, learned Additional GP for respondents No. 1, 2, 3 & 5 and Shri Sambre, learned counsel for respondent No. 4 are supporting the impugned order. They contend that appropriate enquiry has been conducted. The learned Additional GP points out that by order dated 20.12.1997, the petitioner has been selected and directly appointed against a reserved category post, as such, his earlier service cannot be looked into. Shri Sambre, learned counsel states that on 21.08.2009, the Scrutiny Committee has looked into the caste claim and has recorded its reasons for forwarding the papers to Police Vigilance Cell authorities. He contends that the Research Officer is not required to accompany Vigilance Cell for field enquiry anywhere. It is further pointed out that the petitioner was given proper opportunity and the petitioner has failed to substantiate his caste claim. Reliance is being placed upon the Division Bench judgment delivered by this Court on 11.11.2011 in the case of Ajaykumar Yadaorao Nikhar vs. State of Maharashtra & Ors., (Writ Petition 4 No. 5377 of 2004). After hearing respective counsel, we find that insofar as claim for protection is concerned, Full Bench of this Court in the case of Ganesh Rambhau Khalale vs. State of Maharashtra (FB), reported at AIR 2009 Bom. 122, has held that such protection granted by the Hon'ble Apex Court is under Article 142 of the Constitution of India. It is, therefore, apparent that the arguments of Shri Madkholkar, learned counsel about such protection cannot be looked into by this Court. The papers also show that on 21.08.2009, the documents submitted by the petitioner were looked into and as Committee was not satisfied, the papers were forwarded to Vigilance Cell authorities. The enquiry made by the Vigilance Cell authorities is not in dispute. Report of Vigilance Cell was received by the petitioner and he has objected to it on 20.07.2009. It was open to the petitioner to lead appropriate evidence and to examine elders in his family to point out the correct position about customs, traits. The petitioner has not taken advantage of that opportunity. The Scrutiny Committee has relied upon a 1947 document in relation to father of the petitioner which shows his caste to be Koshti. The objection by the petitioner before the Scrutiny committee does not make any reference to this document and there is no explanation about it. The judgment of the Hon'ble Apex Court in the case of Anand vs. Committee for Scrutiny and 5 Verification of Tribe Claims, (supra) emphasises the necessity of affinity test. The petitioner before us has not cared to bring on record the requisite material. In this situation, we find that the issue is squarely covered by the judgment delivered by us on 11.11.2011 in the case of Ajay Yadaorao Nikhar vs. State of Maharashtra & Ors. (supra). The insistence upon a show cause notice before proceeding under Section 11(2) of Act No. 23 of 2001 is not supported by any legal provision or precedence. The perusal of Act No. 23 of 2001 reveals that Committee has to take that decision during verification exercise itself. Hence, we do not find any merit in this petition. Writ Petition is accordingly dismissed. However, there shall be no order as to costs. Shri Madkholkar, learned counsel for the petitioner, at this stage seeks continuation of interim order for a period of eight weeks. The respective counsel are strongly opposing the request. However, looking to the nature of controversy, the interim orders already operating are continued for a period of eight weeks more from today and the same shall cease to operate automatically thereafter. JUDGE JUDGE *GS.