Raju Ramsing Vasave vs Mahesh Deorao Bhivapurkar & Ors

Respondent No. 1 claims himself to be a member of Schedule Tribe being belonging to "Halba" tribe notified in terms of the Constitution (Scheduled Tribes) Order, 1950. Respondent No. 1 and his family members are highly educated. The caste of his father in the school records was shown as "Koshti" whereas the caste of his uncle was also shown as "Koshti" which was, however, later on corrected as "Halba". One of his cousins Ku. Sandhya Manohar Bhivapurkar, daughter of the uncle of the respondent No. 1, was also granted a certificate as belonging to the "Halba" community.

4. Indisputably, however, the respondent No. 1 also filed a writ petition claiming the said benefit which was marked as W.P. No. 1347 of 1988. The Division Bench of the Bombay High Court following its decision in Milind Sharad Katware (supra) allowed the said writ petition by an order dated 11.08.1988 stating:

6. The case of the respondent No. 1 was referred to the Schedule Tribe Certificate Scrutiny Committee. The Committee held:

7. The matter was thereafter referred to the Caste Scrutiny Committee. However, relying on or on the basis of the decision of the High Court dated 11.08.1988 in Writ Petition No. 1347 of 1988, the Scheduled Tribe Caste Scrutiny Committee, Pune refused to grant a certificate in his favour by an order dated 18.09.1997, stating:

9. Appellant and the respondent No. 1 together with two others were appointed as Field Officers. Whereas the respondent No. 1 was placed at Sl. No. 69 of the Select List, the appellant was placed at Sl. No. 73 thereof. As against the names of the S.T. candidates, however, it was stated:

13.8.1987 by the applicant with respondent No. 4 - employer would be sufficient compliance 1 5 with the Circular issued by respondent No. 4 in order to hold that the applicant belongs to the Scheduled Tribe - Halba by virtue of the verdict of this Court in Writ Petition No. 1347 of 1988 decided on 11.8.1988."

23. Two legal principles which would govern a case of this nature, are:

We are unable to accept the said contention. Apart from the fact that the petition for leave against the order dated 11.08.1988 was dismissed on the ground of delay alone, the appellant herein is affected by the impugned judgment of the High Court dated 26.06.2006. When the order dated 11.08.1988 was passed, the judgment of the Bombay High Court was prevailing. Appellant was not in picture at that point of time.

The Maharashtra Government also enacted the Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000.

We, therefore, reject the said contention.

We do not intend to do so in this case as the respondent No. 1 is in service for a long time and the Bombay High Court allowed the writ petition filed by him way back in 1988.

35. Invoking our jurisdiction under Article 142 of the Constitution of India, keeping in view the long history of the case and its backdrop, we are of the opinion that whereas it would not be proper for us to disturb the very appointment of the appellant but it must be declared that his appointment shall be treated to be that of a general category in the matter of promotion or otherwise. He shall not be eligible to get any benefit as a member of a Scheduled Tribe.

36. For the reasons aforementioned, the appeal is allowed with the aforementioned directions. In the facts and circumstances of the case, there shall be no order as to costs.

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