Yadvendra Gokulprasad Gupta and another vs State of Maharashtra and others

H.H. Kantharia, J.—Since the point of law involved in these writ petitions is the same, they are heard together and are being disposed of by this common judgment.

By these writ petitions under Article 226 of the Constitution of India the petitioners seek a declaration that the caste certificates issued in their favour are not accurate as the said certificates provide that the petitioners are not entitled to any concessions /facilities of any nature whatsoever extended to the Scheduled Castes/Scheduled Tribes etc. by the Government of Maharashtra.

The first petitioner, Yadvendra Gokulprasad, Gupta, in writ petition No. 2238 of 1987 is the son of petitioner No. 2 therein. They belong to ''Kori'' caste which is notified as Scheduled Caste both in Uttar Pradesh and Maharashtra under the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. The second petitioner hailed from Uttar Pradesh (Mathura) but since August 25, 1967 he has been continuously residing in Maharashtra and has made Maharashtra as his permanent place of abode and has given up the domicile of the place of his birth. He was granted domicile certificate dated December 7, 1985 by the Additional Chief Metropolitan Magistrate, Borivli, Bombay. The first petitioner was born in Mathura (Uttar Pradesh) on February 17, 1969 but within a few weeks of his birth was brought to Bombay and was educated here as, his father the second petitioner. has been all throughout employed in Bombay and was residing in Bombay.

In order to seek admission to the Engineering Course of studies against a seat reserved for the Scheduled Caste, after completion of the XII standard examination, the first petitioner, through his father, applied for verification of his caste to the Director of Social Welfare, an authority for verification of caste-claim, on or about May 21,1987. Among other documents, he enclosed the caste certificate dated May 20, 1987 issued by the Tahsildar and Executive Magistrate, Borivli certifying that he belongs to ''Kori'' caste and a certificate issued by the Collector of Bombay that he was residing in Bombay for the last fifteen years. However, the caste verification committee rejected the caste-claim of the first* petitioner by an order dated June 16, 1987 taking a view that the competent authority viz. the Executive Magistrate. Borivli erred in issuing the caste certificate in his favour. In doing so. the caste verification committee relied upon a Circular No. CBC-1684-CON. 592 (1999)/BCW-5 dated February 19. 1986 issued by the Government of India and held that the first petitioner was not eligible to get any concession granted to the members of the Scheduled Castes in the State of Maharashtra as he was not a permanent resident of Maharashtra. Feeling aggrieved, the first petitioner, through his father, filed an appeal before the Additional Commissioner. Konkan Division. Bombay who rejected the appeal by his order dated July 7, 1987. The Additional "Commissioner referred to and relied upon another set of instructions issued by the Ministry of Home Affairs. Government of India, dated March 22, 1977. Hence, the petitioners filed the writ petition and prayed that the orders dated June 16. 1987 passed by the Director of Social Welfare and dated July 7, 1987 passed by the Divisional Commissioner be quashed and set aside.

At the time of admission of the "writ petition, the Principal of Victoria Jubilee Technical Institute, Matunga. Bombay was directed by this Court to consider the claim of the first petitioner for admission to the first year of Bachelor of Engineering in accordance with merits against one of the seats reserved for students belonging to the Scheduled Caste as and by way of interim relief and accordingly the first petitioner was admitted and that is how he is prosecuting his studies.

The petitioner, Rakeshkumar Gupta, in writ petition No. 2333 of 1988 is the real brother of the first petitioner Yadvendra Gupta in writ petition No. 2238 of 1987 and is the son of the second petitioner in the said writ petition. He was born on February 6, 1972 at Borivli in Bombay. He was granted domicile certificate by the Additional Chief Metropolitan Magistrate, Borivli, Bombay on June 27, 1988. After passing his X standard examination in the year 1988. he applied for admission to XI standard (First Year Junior College) for the Science stream in Mithibai College of Arts arid Chauhan Institute of Science. Vile Parle against a seat reserved for the Scheduled Caste. He was granted admission by the College provisionally on condition that he produces a caste certificate that he belongs to Scheduled Caste. He obtained a caste certificate dated July 11, 1988 from the Executive Magistrate. Borivli that he belongs to ''Kori'' caste which is included in the list of the Scheduled Caste but the Executive Magistrate put an endorsement in the said certificate that the holder thereof Was not entitled to any concessions/facilities extended to the Scheduled Castes by the Government of Maharashtra. Feeling aggrieved by such remarks in his caste certificate, this petitioner also filed the writ petition. At the time of admission of his writ petition, interim relief in terms of prayer clause (e) was granted and the Principal of Mithibai College of Arts and Chauhan Institute of Science was directed to continue the admission of the petitioner against a reserved seat for Scheduled Caste and that is how he is also continuing his studies.

The petitioner, Sandip Umanglal Bhagat, in writ petition No. 1813 of 1989 was born at Borivli in Bombay on September 9, 1971. He was also educated in Bombay. His father hailed from village Taropa in Nandod taluka of Bharuch district which earlier formed part of the then Bombay State and now situate in Gujarat State. He came to Bombay sometime prior to October. 1960 and took up employment in Western Railway from October 1960, Presently, he is working at Churchgate. The Additional Chief Metropotian Magistrate. Borivli issued a certificate in favour of the petitioner that he was born in Bombay on September 9, 1971 and was domiciled in the State of Maharashtra. The Sub-Divisional Executive Magistrate. Bombay Suburban District. Bombay issued a caste certificate in his favour that he belongs to ''Bhil'' Tribe which is recognised as Scheduled Tribe under the Constitution (Scheduled Tribes) Order, 1950 and the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 but endorsed the said certificate stating that the petitioner was not entitled to any concessions/facilities extended to the Scheduled Tribes by the Government of Maharashtra.

After passing the S.S.C. Examination in March, 1986, the petitioner made an application to the Victoria Jubilee Technical Institute, Matunga. Bombay for one of the courses in Mechanical Engineering but his application for the admission was rejected as he did not have a caste certificate. Thereafter, he passed XII standard examination in March, 1989 and applied to the V.J.T.I. for admission to the First Year Degree Course in Engineering Technology in one of the seats reserved for the Scheduled Tribes. The said Institute, however, refused to accept his application unless it was accompanied by a valid caste certificate duly verified by the Director of Social Welfare. According to the petitioner, in view of the fact that the Sub-Divisional Executive Magistrate had issued the caste certificate dated August 31, 1987 denying him the concessions/facilities extended to the members of the Scheduled Tribes, the Director of Social Welfare would not issue a caste validity certificate in his favour and. therefore, he filed the writ petition and impugned the caste certificate dated August 31, 1987 to the extent of the endorsement therein that he would not be entitled to any concessions/facilities extended to the Scheduled Tribes by the Government of Maharashtra. At the time of admission, of his writ petition, the petitioner was granted interim relief and that is how he is prosecuting his studies in Electronic Engineering at the Victoria Jubilee Technical Institute.

The petitioner. Hitesh Khushalbhai Patel. in writ petition No. 1973 of 1989. is domiciled in the State of Maharashtra and belongs to ''Dhodia'' tribe which, is recognised as Scheduled Tribe in relation to the State of Maharashtra. His father. Khushalbhai Patel, belonged to village Nani Vahid. Tatuka, Dharampur. in Valsad District which originally formed part of the then Bombay State and now situate in the State of Gujarat. He came to Bombay somewhere in May 1960 and took up employment in Western Railway as Traveling Ticket Inspector on May 31, 1960 and is in continuous service thereafter, presently posted at Churchgate. The petitioner was born at Malad in Bombay on January 1. 1970. He took his entire education in Bombay and qualified for the H.S.C Examination in March. 1989. He was issued a domicile certificate by the Additional Chief Metropolitan Magistrate on June 30. 1989. He was granted a caste certificate on July 27, 1988 by the Sub-Divisional Executive Magistrate. Bombay Suburban District. Bombay certifying that he belongs to "Dhodia'' tribe which is recognised as Scheduled Tribe under the Constitution (Scheduled Tribes) Order, 1950 and the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 but with an endorsement that he was not entitled to any concessions/facilities extended to the Scheduled Tribes by the Government of Maharashtra.

The petitioner thereafter forwarded his application to the Dean. Grant Medical College, Bombay, for admission to the first year M.B.B.S. Course for the year 1989-90 in one of the seats reserved for the Scheduled Tribes. He was. however, informed that his application would not be considered in view of the endorsement in his caste certificate that he was not entitled to any concessions/facilities extended to the Scheduled Tribes by the Government of Maharashtra. Feeling aggrieved, her filed the writ petition. At the time of admission of his writ petition, interim relief was granted in his favour directing the Dean of the Grant Medical College to accept his application for admission to the first year M.B.B.S. Course for the year 1989-90 and grant him provisional admission in one of the seats reserved for the Scheduled Tribes. That is how he is continuing his medical education at the Grant Medical College.

Now. the only point that arises for my consideration in all the petitions is. whether the caste certificate issuing authorities and/or the authorities verifying the same can put endorsement in the caste certificates that the holders thereof will not be entitled to any concessions/facilities extended to the members of Scheduled Castes/Scheduled Tribes etc. by the Government of Maharashtra and thus disentitle them to such concessions/facilities merely because they or their fathers originally belonged to some other State. This is no longer res integra. Admittedly, the authorities issuing caste certificates and those verifying the same have been relying upon certain circulars issued by the Government of India on the basis of which the Government of Maharashtra have issued certain circulars. It is not necessary to go into the details of those circulars because they were the subject matter of dispute and discussion on a number of occasions and the point has been finally decided by this Court.

Thus, a Division Bench of this Court (Kanade and Deshpande, JJ.) in the case of Bhimji Eknath Kawle vs. State of Maharashtra, in Writ Petition No. 1572 of 1980. decided on February X 1982. had held that in the matter of employment the petitioner therein who previously belonged to Bidar in the State of Karnataka but had been ordinarily residing in the State of Maharashtra be considered as member of the Scheduled Caste in. this State in view of the fact that the community to which he belonged was specified as Scheduled Caste in this State also.

In the case of Rajesh Khushalbhai Patel vs. The State of Maharashtra and others, in Writ Petition No. 2499 of 1983, a question similar to one raised before me now was raised before Pendse, J. In that case, the community to which the petitioner belonged was specified as Scheduled Caste both in the State of Maharashtra and in the State of Gujarat from where the petitioner had migrated. Pendse, J. held that it was difficult to understand on what basis the Director of Social Welfare. Maharashtra had come to a conclusion that the petitioner was a permanent resident of Gujarat and hot of Maharashtra. In the said case, the record unmistakably showed that the petitioner was born and educated in Bombay and resided in Bombay all along with his parents. Pendse. J. pointed out that the fact that the petitioner''s father hailed from a village in the State of Gujarat was not a ground to suggest that the petitioner was a permanent resident of Gujarat. Pendse. J. accordingly directed the Director of Social Welfare to act in accordance with the judgment of this Court.

Daud. J. in case of Rajesh Arjunbhai Patel Vs. State of Maharashtra and others, was of the opinion that the instructions which have come up for consideration relating to migrants from one State to another were arbitrary and discriminatory. After finding upon the facts that the petitioner therein at least since 1969-70 was permanently residing within the State of Maharashtra. Daud, J. held that, therefore, the test of class and territory having been fulfilled, the petitioner was entitled to enjoy the benefits of status as a Scheduled Caste within the State of Maharashtra. Daud. J. pointed out that under the guise of Government Resolution, the Government was not entitled to give their own construction as regards the list of Scheduled Tribes and Scheduled Castes since the power was given only to the Parliament to amend the Constitution (Scheduled Castes and Scheduled Tribes) Orders, 1950, Daud, J. also observed that the Government Resolution made artificial distinction between migrants prior to 6th September, 1950 and those subsequent to that date and that it was incomprehensible why the cut-off date should be the 6th September. 1950 for the progeny of migrants to the State. Daud. J. declared the instructions 17(a), (b)(ii) and (c) of Exhibit ''S'' of the said petition (which are the same instructions on which the authorities issuing caste certificates and verifying the same relied in the present cases) to be violative of Articles 342, 14. 16 and 19 of the Constitution and. therefore, unconstitutional and void.

In the Full Bench decision of this Court in M.S. Nalathi d/o P, Swamimurthi vs. The Commissioner, Nagpur Division and others. 1988 Mh.L.J. 1041 it was observed that "the rationale behind such identifying castes or tribes as Scheduled Castes or Scheduled Tribes is their socio-economic and educational backwardness in a particular State or Union Territory. Therefore, the benefits of constitutional protection for castes and tribes which are to be deemed as Scheduled Castes and Scheduled Tribes are to be given in relation to that State or Union Territory in which the particular caste or tribe suffers from these disabilities and need protection."

Recently a Division Bench of this Court (C. Mokerjee., C.J. and Sharad Manohar, J.) in the case of Kannaya Devjibhai Borisa vs. The State of Maharashtra and others, 1990 (l) Bom.C.R. 546 held that it is not permissible to deprive the member of the backward community residing in Maharashtra of the benefits merely because the family originally hails from, outside Maharashtra. The Division Bench further held that if the animus of intention is clear to reside in Maharashtra then the facility available to backward classes in Maharashtra must be made available to such community.

And relying upon the abovesaid Division Bench judgment Pendse. J. made the rule absolute in Writ Petition No. 1963 of 1990 at the admission stage itself, by an order dated July 2, 1990. The petitioner''s father in the case before Pendse, J. was employed in Western Railway in the office of the Deputy Chief Electrical Engineer from June 4. 1969. The petitioner therein though was born in Uttar Pradesh is residing in Bombay and has his education in Bombay all along. His father belongs to ''Kori'' community which is included in the list of the Scheduled Castes. The petitioner who was desirous of seeking admission to medical college had applied for a caste certificate to the Executive Magistrate. Andheri. The certificate was issued but with an endorsement that the holder of the same will not be entitled to any facility available to the backward class residing in the State of Maharashtra. Holding that it was not in dispute that the petitioner was brought up and educated in Bombay and that the petitioner''s father is in service in Bombay and his animus or intention was to live in Bombay Pendse, J. made the rule absolute directing the deletion of the endorsement that the holder of the certificate was not entitled to any concessional facility of any nature whatsoever extended to backward class by the Government of Maharashtra, as ''Kori'' caste was included in the list of the Scheduled Castes in the State of Maharashtra also.

Admittedly, in writ petition No. 2238 of 1987 and writ petition No. 2333 of 1988 the petitioners are the members of ''Kori'' caste which is included in the list of the Scheduled Castes not only in the State of Uttar Pradesh but also in the State of Maharashtra. The facts therein disclose that although the petitioner in writ petition No. 2238 of 1987 was born in Uttar Pradesh he was brought up and educated1 in Bombay and the petitioner in writ petition No. 2333 of 1988 was born, brought up and educated in Bombay. Their father has been continuously residing in Bombay from 1967 and is employed in Central Railway. It is. therefore, clear that the animus or intention of the petitioners was to live in Bombay, Hence, both the petitioners are entitled to the benefits and facilities and/or concessions granted to the Scheduled Caste persons by the State of Maharashtra. That being so. it was wrong on the part of the authorities issuing the castes certificates and verifying the same to have refused the constitutional concessions granted to the petitioners on a false notion and mistaken belief that they were not entitled to such concessions because their father hailed from the State of Uttar Pradesh. The petitioner in writ petition No. 2238 of 1987 has undergone the test of getting his caste verified from the caste verification committee and also filing an appeal before the Additional Commissioner of Konkan Division unsuccessfully. Under the circumstances, there is no need for his brother Rakeshkumar Gupta, the petitioner in writ petition No. 2333 of 1988 to undergo the same formalities of approaching the caste verification committee and the appellate authority. Hence, so far as these two petitioners are concerned, a direction will have to be issued to the respondents that their caste certificates shall stand rectified by deletion of the endorsements therein that they are not entitled to any concessions/facilities extended to the Scheduled Castes by the Government of Maharashtra. The Principal of Victoria Jubilee Technical Institute, Matunga. Bombay and the Principal of Mithibai College of Arts and Chauhan Institute of Science, Vile Parle, Bombay are directed that they shall allow the petitioners to continue their education in their respective institutions on the basis that they belong to ''Kori'' caste which is included in the list of the Scheduled Castes.

So far as Writ Petition No. 1813 of 1989 is concerned, as stated above, the record clearly shows that the petitioner''s father although originally belonged to a place which was a part of the then Bombay State and now situate in the State of Gujarat had come to Bombay in October. 1960 and thereafter has been continuously staying in Bombay and working in Western Railway. The petitioner was born, brought up and educated in Bombay. He belongs to ''Bhil'' tribe which is included in the list of the Scheduled Tribes under the Constitution (Scheduled Tribes) Orders. 1950 and the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 both in Gujarat and in Maharashtra. There was, therefore, no reason for the Sub-Divisional Executive Magistrate, Bombay Suburban District, to have put an endorsement in his caste certificate (Exhibit ''E'' to the petition) that he was not entitled to any concessions /facilities extended to the Scheduled Tribes by the Government of Maharashtra. The said endorsement shall, therefore, stand deleted and the caste certificate issued in his favour to that extent shall stand modified. However, the said caste certificate, without the impugned endorsement therein, will have to be subjected to verification by the caste verification committee because this caste has not been subjected to such a scrutiny. The petitioner will have to undergo that procedure. Since the petitioner is prosecuting his studies in Victoria Jubilee Technical Institute, Matunga. Bombay on the basis of the interim relief granted to him by this Court, it is very necessary that the caste verification committee should scrutinize his caste claim as early as possible because he has to submit the caste certificate duly scrutinised by the said Committee to the College authorities. The caste verification /scrutiny committee. Maharashtra State, Pune to whom the petitioner will approach within one month from today for getting his caste verified, shall dispose, of his application within a period of two months thereafter. The petitioner is prosecuting his studies in Victoria Jubilee Technical Institute. Matunga, Bombay. The Principal of the said Institute is hereby directed to allow him to continue his education on the basis that he belongs to "Bhil" tribe which is included in the list of the Scheduled Tribes.

The petitioner in writ petition No, 1973 of 1989 admittedly belongs to ''Dhodia'' tribe which is included in the list of the Scheduled Tribes under the Constitution (Scheduled Tribes) Orders, 1950 and the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act. 1976 both in Gujarat and in Maharashtra. The petitioner''s father had come to Bombay from Gujarat in the year 1960 and has been continuously working in Western Railway thereafter. The petitioner was born, brought up and educated in Bombay. Therefore, in his case also the Sub-Divisional Executive Magistrate. Bombay Suburban District. Bombay, erred in putting in endorsement in his caste certificate that he will not be entitled to any concessions /facilities extended to Scheduled Tribes by the Government of Maharashtra. The said endorsement from his caste certificate dated July 22. 1988 (Exhibit ''H'' to his petition) shall stand deleted and the caste certificate to that extent shall stand modified. Admittedly, he also has not undergone the procedure of his caste being verified by the caste verification committee. He will have to do that. The petitioner, therefore, shall approach the caste scrutiny/verification committee, Maharashtra State, Pune for getting his caste claim verified within a period of one month from today. The said Committee, on receipt of the application of the petitioner, shall scrutinise the caste claim within a period of two months thereafter. The petitioner is prosecuting his medical studies in the Grant Medical College under the order of interim relief granted by this Court. Therefore, the Dean of the Grant Medical College is directed to allow him to continue his education on the basis that he belongs to ''Dhodia'' tribe which is included in the list of the Scheduled Tribes.

. Before parting with the judgment it may be noted here that while deciding writ petition No. 2830 of 1989 along with several other writ petitions (reported in Kannaya Devjibhai Borisa and etc. Vs. State of Maharashtra and others, ), by a judgment and order dated September 28. J989, the Hon''ble the Chief Justice speaking on behalf of the Division Bench had ruled "Accordingly we declare that the instructions regarding the grant of caste certificate with impugned endorsement to those who have migrated and have already become permanent residents in the State Were invalid and unforcible in law. The said endorsements pursuant to the said instructions contained in the caste certificates granted to these petitioners were void ab initio and are quashed. By relying upon these impugned endorsements in the caste certificates, the respondents acted illegally in rejecting the petitioner''s claims for benefits given to members of Scheduled Castes in Maharashtra State. Since their castes are specified as Scheduled Castes in relation to Maharashtra and at present they have permanent residences in this State the petitioners ought to be considered as Scheduled Caste candidates. Because of the said impugned instructions, the Scrutiny Committee, in case of those petitioners who were seeking admission to the educational/professional institutes, had illegally refused to treat them as belonging to Scheduled Castes. Their claims ought to be considered afresh. We also make it clear that in the case of those petitioners whose certificates are yet to be processed, the Scrutiny Committee is commanded not to give effect to the endorsements in their caste certificates made according to impugned instructions regarding the migrants to this State after the date of the notification and/or Government Order." But despite the law thus laid down by this Court it is really unfortunate that the authorities issuing the caste certificates and verifying the same are indulging in the same practice of relying upon the said illegal instructions and putting endorsements in the caste certificates that the so-called migrated persons will not be entitled to any concessions available to the members of the Scheduled Castes and the Scheduled Tribes by the State of Maharashtra. These acts on the part of the authorities issuing the caste certificates and verifying the same are in blatant violation of the directions given by this Court and will thus amount to Contempt of Court. These officials of the State Government are oblivious of the social philosophy of the Constitution of India whose core and conscience is to ensure justice - social, economic and political to the people of this vast and great country among whom millions and millions are the Scheduled Castes and Scheduled Tribes who are the legitimate beneficiaries of an elaborate system of ''compensatory discrimination which gives them special and preferential treatment, among other things, in the field of education so. that they may meaningfully participate in the mainstream of national life as was pointed out by this Court in Devidas Baburao Hajare and Another Vs. State of Maharashtra and Others, . They should bear in mind that Article 15(4) of the Constitution lays down that nothing shall prevent the State from making any special provisions for the advancement of any socially and educationally Backward Classes or the Scheduled Castes and Scheduled Tribes and Article 46 provides that the State shall promote with special care the educational and economic interests of the weaker section of the people and, in particular, of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation for which the Presidential Orders of 1950 were made under Articles 341 and 342 of the Constitution specifying certain castes and tribes as Scheduled Castes and Scheduled Tribes. I, therefore, feel constrained to declare that such endorsements made in any caste certificate after the said judgment of the Division Bench delivered by the Hon''ble the Chief Justice on September 28, 1989 shall stand deleted by this order. In other words, whenever the authorities issuing caste certificates in the State of Maharashtra have put the impugned endorsements in the caste certificates after September 28, 1989 in cases of those persons similarly situated tike the present petitioners shall have no legal force and those certificates shall be considered as valid caste certificates as if the said endorsements that the holders of those caste certificates will not be entitled to the benefits /facilities /concessions granted to the members of the Scheduled Castes and Scheduled Tribes by the State of Maharashtra do not exist. The officials in-charge of scrutinising the caste are directed not to invalidate the caste claims on the basis of such endorsements. It is further directed that the officials in-charge of scrutinising the castes shall scrutinise the same in reasonably good time and in any case they shall take care to see that the candidates are not prevented from seeking admissions to the educational institutions on account of delay in scrutinizing the castes. These directions are issued in public interest, in consultation with advocates of all sides, as despite the law laid down by this Court, as stated above, the students belonging to the Scheduled Castes and Scheduled Tribes are put to lot of hardship and harassment on account of issuance of such faulty caste certificates and they are forced to seek remedy in this Court by filing writ petitions. One should not forget that all, and especially the Scheduled Castes/Tribes people, cannot afford the luxury of Court litigation which is quite costly. Let us not deny them justice which is enshrined in and guaranteed by the Constitution of our country.

In the result, the petitions succeed and the same are allowed. Rule in each of the petition is made absolute in the terms aforesaid but with no order as to costs.