Dhammanand vs Divisional Caste Certificate Scrutiny

S.B. Shukre, J

Rule. Rule made returnable forthwith and heard by consent of the parties.

By this petition, the petitioner has sought quashing and setting aside of the order dated 17/7/2013 passed by respondent No.1 invalidating his caste claim and also direction to respondent No.1 to issue caste validity certificate to the petitioner with further direction to respondent No.2 to protect his service.

The petitioner was appointed to Class -IV post on 17/4/1997 by respondent No.2 on the compassionate ground. The appointment order did not reflect that the petitioner was appointed against a reserved category. However, the petitioner submitted all the relevant documents in the office of respondent No.2 at the time of his appointment including a caste certificate issued by the competent Authority, the Executive Magistrate, Nagpur dated 07/7/1993 showing him as belonging to "Mahar" caste.

The caste claim of the petitioner was referred by respondent No.2 to respondent No.1 in the year 2008 and in the meanwhile the petitioner had also submitted all the relevant documents available with him, which showed that his as well as his father''s caste was "Mahar". These documents were forwarded to respondent No.1. The petitioner also submitted additional documents showing caste of his father as "Mahar" before respondent No.1. However, respondent No.1 found that the petitioner did not submit any documents showing his caste as "Mahar" from the State of Maharashtra. Therefore, respondent No.1 called upon the petitioner to submit his explanation in writing.

In his written statement, the petitioner submitted that his father Maniram Mahadeo Jambhulkar was studying in Government Primary School at Rangari Thoka, tahsil Sounsar, district Chhindwara from the year 1948 to 1953 and that after having passed 4th standard examination in the year 1953, his father migrated to Nagpur and in the year 1954 he was appointed to serve in the Health Department at Nagpur. The petitioner submitted before the Committee that although his father was migrant and belonging to "Mahar" caste recognised in the State of Maharashtra, he himself was not a migrant having been born and brought up in Nagpur, within the State of Maharashtra. He submitted that since his father belonged to "Mahar" caste, a caste recognised as Scheduled Caste in the States of Madhya Pradesh and Maharashtra, his caste claim as belonging to "Mahar" should also be recognised and duly validated.

However, respondent No.1 rejected the said contentions reasoning that no documents have been produced before it by the petitioner showing his caste of "Mahar" as from the State of Maharashtra and accordingly invalidated the caste claim of the petitioner by its order passed on 17/7/2013. Being aggrieved by the said order, the petitioner has preferred the present petition.

Shri Narnaware, learned Counsel for the petitioner has submitted that district of Chhindwara and part of district of Nagpur were the parts of the province C.P. and Berar when Scheduled Caste and Scheduled Tribes Order, 1950 was issued. He submits, it was only after the reorganisation of the States that some parts of the province of C. P. and Berar went to the newly formed State of Maharashtra and some parts merged with the State of Madhya Pradesh. He further states that even after the reorganisation of the States, "Mahar" caste continued to be recognised as scheduled caste in the State of Madhya Pradesh as well as State of Maharashtra and, therefore, the case of the petitioner would be squarely covered by the decision of the Hon''ble Apex Court in the case of Sudhakar Vithal Kumbhare Vs. State of Maharashtra and Others, and decision of this Court in the case of Bharat Vs. Divisional Caste Certificate Scrutiny Committee No. 3 and Another,

Shri Ghodeswar, learned Assistant Government Pleader for the respondents has submitted that the petitioner has failed to prove that his forefathers were permanent residents of State of Maharashtra since prior to 1950 and therefore, the petitioner would not be entitled to avail the benefits as Scheduled Caste candidate.

In view of the rival contentions, the question that arises for determination in this case is;

Whether respondent No.1 -Committee was right in invalidating the caste claim of the petitioner only on the ground that the petitioner, whose forefathers were not residents of the State of Maharashtra, failed to produce any evidence showing that he belonged to "Mahar" Scheduled Caste from the State of Maharashtra?

A similar question in relation to "Halba/Halbi" - Scheduled Tribe, originally from Chhindwara region fell for consideration of the Hon''ble Apex Court in the case of Sudhakar Vithal Kumbhare (cited supra) and while determining it, the Hon''ble Apex Court has observed that where any particular area of the country is required to be given protection is a matter which requires detailed investigation having regard to the fact that both Pandhurna in district Chhindwara and the part of the area of Chandrapur district (State of Maharashtra) at one point of time belonged to the same region and under the Constitution (Scheduled Tribes) Order, 1950 as it originally stood, the tribe "Halba" or "Halbi" of that region, may be given the same protection. The Hon''ble Apex Court also held that in a case of this nature, the degree of disadvantages of various elements, which constitute the input for recognition as a Scheduled Tribe, may not be totally different. It would be convenient to reproduce the relevant observations of the Hon''ble Apex Court appearing in paragraph No.5 as under:

"But the question which arises for consideration herein appears to have not been raised in any other case. It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered disadvantages and been denied facilities for development and growth in several States. They require protective preferences, facilities and benefits inter alia in the form of reservation, as to enable them to compete on equal terms with the more advantaged and developed sections of the community. The question is as to whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in Chhindwara region, a part of which, on State''s reorganization, has come to the State of Maharashtra, was entitled to the benefit of reservation. It is one thing to say that the expression "in relation to that State" occurring in Article 342 of the Constitution of India should be given an effective or proper meaning so as to exclude the possibility that a tribe which has been included as a Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in another State whose Governor has not been consulted; but it is another thing to say that when an area is dominated by members of the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the States. In other words, the question that is required to be posed and answered would be as to whether the members of a Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of the States Reorganisation Act. With a view to find out as to whether any particular area of the country was required to be given protection is a matter which requires detailed investigation having regard to the fact that both Pandhurna in the district of Chhindwara and a part of the area of Chandrapur at one point of time belonged to the same region and under the Constitution (Scheduled Tribes) Order, 1950 as it originally stood the tribe Halba/Halbi of that region may be given the same protection. In a case of this nature the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganisation might have agreed for inclusion of the said tribe Halba/Halbi as a Scheduled tribe in the State of Maharashtra having regard to the said fact in mind."

It would be clear from the above observations that members of the Scheduled Caste or Scheduled Tribe from one geographical region can continue to get benefits of their tribe even after bifurcation of that region owing to formation of new State on linguistics basis whereby one part falls in one State and the other goes in another State, if the caste or tribe is recognised as Scheduled Caste or Scheduled Tribe in both the States, having regard to suffering of the same disadvantages and disabilities by members of such Scheduled Caste or Scheduled Tribe as earlier.

In the instant case, it is not in dispute that Maniram, father of the petitioner was earlier permanent resident of Sounsar, district Chhindwara and in the year 1954 he shifted to Nagpur. Chhindwara and Nagpur constituted the same region earlier and were part of a province then known as Central Province and Berar. It was only in the year 1960 that some parts of the earlier province of C. P and Berar became parts of newly formed State of Maharashtra and some parts thereof went to the new State of Madhya Pradesh. Chhindwara district became part of the State of Madhya Pradesh and Nagpur district became a constituent of the State of Maharashtra. Maniram, father of the petitioner was undisputedly "Mahar" by caste, recognised as Scheduled Caste in both the States and, therefore, by following the law laid down by the Hon''ble Apex Court in the case of Sudhakar Vithal Kumbhare (cited supra), it cannot be said that only because the father of the petitioner originally came from Chhindwara district, which now falls in the State of Madhya Pradesh, the petitioner cannot be given benefit of his claim as belonging to "Mahar" caste, which is also recognised to be the Scheduled Caste in the State of Maharashtra.

Similar question fell for consideration of this Court in the case of Bharat (cited supra) and holding that the persons whose caste/tribe is recognised in both the States are entitled for the benefits of reservation, this Court, in paragraph No.10, observed as under:

"In our view, earlier Chhindwara where the ancestors of the petitioner had been permanently residing and Nagpur where the petitioner and his family are now permanently residing, had been parts of the C.P, and Berar before reorganization of the States. After reorganisation of the States, Chhindwara became part of the Madhya Pradesh State and Nagpur became part of the Maharashtra State. These peculiar facts are considered by the Apex Court in the case of Sudhakar Vithal Kumbhare (cited supra) and it is held that such persons whose Caste/Tribe is recognized in both the States, are entitled for the benefits of reservation. We are of the opinion that in view of the peculiar acts of the present case, as in the case of Sudhakar Vithal Kumbhare (cited supra), the petitioner will be entitled for the benefits as a Scheduled Caste candidate as it is not dispute that "Mahar" has been recognized as Scheduled Caste in the Madhya Pradesh State and it is recognized as Scheduled Caste in the Maharashtra State also."

Facts of this case are identical with the facts of the case of Bharat (supra) and in view of the view taken therein and the law laid down in the case of Sudhakar (supra), we are of the opinion that the petitioner is entitled to receive the benefits of his claim as belonging to "Mahar" - Scheduled Caste in the State of Maharashtra. The question is answered accordingly. The petition thus deserves to be allowed.

Writ petition is allowed.

Rule is made absolute in terms of prayer clause (1). It is held that the petitioner belongs to "Mahar" - Scheduled Caste and is entitled to the benefits of the Scheduled Caste.

No order as to costs.