Case: State Of Maharashtra  Vs. Sanjay K. Nimje

This appeal is directed against a judgment and order dated 19.08.2005 passed by a Division Bench of the High Court of Judicature of Bombay in Writ Petition No. 4158 of 2005 whereby and whereunder the writ petition filed by the respondent herein waswas appointed in the services of the Government of Maharashtra on 29.06.1995. Respondent claimed to be belonging to Halba community, a scheduled tribe. The caste certificate procured by the respondent from the competent officer having been doubted, the matter was referred to the Caste Certificate Scrutiny Committee, Nagpur on 27.08.1999 for verification. The respondent was found to be belonging to Koshti caste which comes within the category of special backward class and not within the scheduled tribequestion as to whether Koshti - Halbas are members of the Scheduled Tribe or not came up for consideration before this Court in State of Maharashtra v. Milind and Others [(2001) 1 SCC 4] , wherein it was held that they wereview of the finding of fact that the respondent herein was not a member of the scheduled tribe but was a Koshti, his caste certificate was invalidated by an order datedwrit petition thereafter was filed by the respondent before the High Court praying inter alia for the followingThat by passing a suitable writ, order or direction in the nature of mandamus or certiorari or any other appropriate writ, order or direction, a quash and set aside the order dated 24.6.2004 passed by the Respondent No. 2 Committee invalidating the tribe claim of Petitioner that he belongs to Halba, Scheduled Tribe.B) It be held and declared that in view of Government Resolutions dated 15.6.1995 and 30.6.2004 the services of Petitioners are liable to be protected thereby issuing such order to the Respondent No. 2 and 3.C) During the pendency of present petition by passing an order ad interim in nature stay the effect, operation and implementation of the order dated 24.6.2004 invalidating tribe claim of Petitioner and/ or in the alternative restrain the Respondents No. 1 and 3 from passing any adverse order consequent upon invalidation of tribe claim of petitioner by Respondent No. 2appears that the respondent accepted the findings of the Caste Scrutiny Committee. However, relying on or on the basis of a purported government resolution dated 15.06.1995 whereby and where under the services of persons who were appointed prior thereto were sought to be protected, the Division Bench of the High Court by reason of the impugned judgment directed that although the respondent was appointed on 29.06.1995, having regard to the fact that he had been selected on 15.06.1995, he was entitled to protection in terms of the said resolutionIn the present case the Petitioner was selected on 15th June, 1995 and got the appointment order on 29th June, 1995. Since Maruti Sandipan Jadhav the Petitioner in Writ Petition No. 422 of 1997, is entitled to get the benefit under the Government Resolution dated 15th June, 1995 the same principle should be applied to the Petitioner in the presentthe result, the petition is allowed. The impugned order of dismissal dated 27th May 2005 is quashed and set aside. The Respondents are directed to reinstate the Petitioner with continuity of service but without back wages and to regularize his service in the light of the Government Resolution dated 15th June, 1995."

Reasoning:
20. In a situation of this nature, whether the court will refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India or not would depend upon the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate v. State of Maharashtra & Ors. [2006 (8) SCALE 503 ].21. From the order of the Caste Scrutiny Committee itself, it is evident that the father of the respondent was shown in the primary school register as belonging to Koshti caste. They were not members of Scheduled Tribe. They were not even Koshti-Halbas. It may be true that an authoritative pronouncement in this behalf came for the first time in Milind (supra), but it is not a case where the respondent pleaded and proved bona fide.22. Respondent was not the member of a tribe. If a person is not a member of a tribe, the question of the said tribe being a scheduled tribe would not arise.23. Thus, it is a clear case where the provisions of the 2000 Act would apply. We see no reason as to why the statutory provisions should not be directed to apply in the instant case. It may be that at one point of time, keeping in view of the stand taken in particular case, some indulgence had been shown. Indulgence might have been shown to the students or who were found to have acted bona fide but the same would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative act.24. Our attention was drawn to an order dated 12th December, 2000 passed in Civil Appeal No. 3375 of 2000, but it does not appear the provisions of the 2000 Act had been brought to the notice of this Court therein. Furthermore, we are not aware as to the fact involved therein and, thus, the same cannot be treated to be a precedent.