1 wp.4139.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4139 OF 2007 Prabhakar s/o Tukaram Shinde, Age: 39 years, Occ: Service, R/o. Kadgaon, Tq. & Dist.Latur. ... PETITIONER VERSUS The State of Maharashtra and others. ... RESPONDENTS ... Advocate for Petitioner : Mr. P.V. Jadhavar. AGP for Respondent No.1 : Mrs. V.A. Shinde. Advocate for Respondent No.2 : Mr. P.S. Patil. ... CORAM : S.S. SHINDE and V.K. JADHAV, JJ. DATE : 29th April, 2014. P.C.: . Heard. 2 This petition takes exception to the impugned decision of the Respondent-Committee dated 20th June, 2007. 3 The learned counsel for the Petitioner submits that, the certificate of validity issued in favour of Suryakant Sitaram Shinde has not been considered by the Respondent / Committee. According to him, it was incumbent upon the Committee to consider the said 2 wp.4139.07 certificate of validity. It is submitted that, though it is mentioned in Petitioner’s own record that, the Petitioner belongs to Hindu Thakar, entry No.44 in the Scheduled Tribe list of 1950 also includes Thakur and therefore, the Respondent / Committee committed an error in not issuing the tribe validity certificate in favour of the Petitioner. 4 The learned counsel appearing for the Petitioner placed reliance in case of Pandurang Rangnath Chavan Vs. The State of Maharashtra & others, reported in [ 1998 (4) Bom.C.R. 462 ] and submits that, the validity certificate of the cousin brother of the Petitioner has not been considered by the Respondent / Committee. 5 The learned counsel appearing for the Respondent / Committee submits that, the caste validity certificate of Suryakant Sitaram Shinde was not submitted before the Respondent / Committee. The learned counsel for the Respondent / Committee submits that, Petitioner’s own record shows that, he is from (Hindu Thakar). Therefore, the Respondent / Committee has rightly negated the claim of the Petitioner. Hence, this Court may not interfere in the impugned decision. 6 We have given anxious consideration to the rival 3 wp.4139.07 submissions, with the able assistance of the learned counsel for the parties, perused the pleadings in the petition, grounds taken therein, annexures thereto and the impugned decision of the Respondent / Committee. Upon careful perusal of the list of documents, which is mentioned in the impugned decision, the certificate of validity of Suryakant Sitaram Shinde is not part of the record before the Respondent / Committee. Apart from that, the Petitioner claims to be belongs to Thakur Schedule Tribe. However, Petitioner’s own record shows that, the Petitioner belongs to (Hindu Thakar). The contention of the learned counsel for the Petitioner that, Thakar is also included in entry No.44 of the list of Scheduled Tribes prepared in the year 1950, cannot be accepted. The Petitioner, with specific contention approached the Committee that, he belongs to Thakur Schedule Tribe. Therefore, there is no merit in the petition. Hence, the petition stands rejected. 7 At this stage, the learned counsel appearing for the Petitioner submits that, the Petitioner is ready to file undertaking within a period of two weeks from today stating therein that, the Petitioner or his progeny will not claim any benefit prescribed for “Thakur Schedule Tribe” henceforth, and therefore, the Petitioner’s 4 wp.4139.07 services may be protected. In case, the Petitioner files the undertaking within a period of two weeks from today stating therein that, the Petitioner or his progeny will not claim benefits prescribed for Thakur Scheduled Tribe henceforth, for all the purposes, the Petitioner’s services shall remain unaffected and protected in view of the judgment of the Supreme Court in the case of Shalini vs. New English High Sch. Assn. & Ors, (Civil Appeal No.10997/2013 decided on 12/12/2013) after considering several earlier judgments of the Supreme Court, in paragraph-5 held thus : "5. It is evident that there is a plethora of precedents on this aspect of the law, and perhaps for this reason Counsel for the parties were remiss in drawing our attention in the present proceedings to the detailed judgment in Kavita Solunke v. State of Maharashtra (2012) 8 SCC 430, in which one of us, Thakur J, had analysed as many as eleven precedents including those discussed above. After reviewing all the judgments it was held, in the facts and circumstances of that case, that since that party had not intentionally or with dishonest intent fabricated particulars of a scheduled 5 wp.4139.07 tribe with a view to obtain an undeserved benefit in the matter of appointment, she was entitled to protection against ouster from service, but no other benefit. In view of the comprehensive yet concise consideration of case law in Solunke, any further analysis would make the present determination avoidably prolix, and therefore our endeavour will be to cull out the principles which would be relevant for deciding suchlike conundrums. These are – (a) If any person has fraudulently claimed to belong to a Scheduled Caste or Scheduled Tribe and has thereby obtained employment, he would be disentitled from continuing in employment. The rigour of this conclusion has been diluted only in instances where the Court is confronted with the case of students who have already completed their studies or are on the verge of doing so, towards whom sympathy is understandably extended; (b) Where there is some confusion concerning the eligibility to the benefits flowing from Scheduled Caste or Scheduled Tribe status, such as issuance of relevant 6 wp.4139.07 certificates to persons claiming to be ‘Koshtis’ or ‘Halba Koshtis’ under the broadband of ‘Halbas’, protection of employment will be available with the rider that these persons will thereafter be adjusted in the general category thereby rendering them ineligible to further benefits in the category of Scheduled Caste or Scheduled Tribe as the case may be; (c) this benefit accrues from the decision of this Court inter alia in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54 which was rendered under Article 142 of the Constitution of India. Realising the likely confusion in the minds of even honest persons the Resolutions/Legislation passed by the State Governments should spare some succour to this section of persons. This can be best illustrated by the fact that it was in Milind that the Constitution Bench clarified that ‘Koshtis’ or ‘Halba-Koshtis’ were not entitled to claim benefits as Scheduled Tribes and it was the ‘Halbas’ alone who were so entitled. A perusal of the judgment in Vilas by Sirpurkar J, as well as Solunke 7 wp.4139.07 makes it clear that this protection is available by virtue of the decisions of this Court; it is not exclusively or necessarily predicated on any Resolution or Legislation of the State Legislature; (d) Where a Resolution or Legislation exists, its raison d’etre is that protection is justified in presenti (embargo on removal from service or from reversion) but not in futuro (embargo on promotions in the category of Scheduled Caste or Scheduled Tribe). " 8 In the light of first principle that, if the candidate is not instrumental in receiving the benefits of tribe claim by fraud or misrepresentation, in that case and if the Petitioner has served for about more than 10 years, the services of the Petitioner deserves to be protected. There is no specific finding recorded by the Respondent / Committee that, the Petitioner by indulging himself in misrepresentation or fraud has manipulated the documents so as to receive the benefits meant for Thakur Schedule Tribe. In that view of the matter, in case such undertaking is filed within two weeks from today, the said undertaking deserves acceptance. The Petitioner’s 8 wp.4139.07 services would remain unaffected including the pensionary benefits. However, the Petitioner or his progeny will not entitle to claim any benefits henceforth, prescribed for Thakur Schedule Tribe. In case, no undertaking is filed within a period of two weeks from today, then the protection granted by this Court, will not be available for the Petitioner and no further time will be extended for filing the undertaking. [ V.K. JADHAV, J. ] [ S.S. SHINDE, J. ] Tupe