Raju v. Establishment Officer (Iii-B)

A.P Deshpande, J.:— Rule. Rule made returnable forthwith by consent of parties.

2. Heard Shri N.C Phadnis, learned counsel for the petitioner and Shri R.K Deshpande, learned counsel for the respondents.

3. The petitioner is in the employment of Maharashtra State Electricity Board. The petitioner joined as a Junior Engineer with MSEB on 10-2-1986, as a candidate belonging to Scheduled Tribe category. The petitioner had sought the said appointment on the basis of a caste certificate issued by the Executive Magistrate, which was validated by the appellate authority viz. Divisional Commissioner, Nagpur Division, Nagpur in Appeal No. 26 of 1982, vide order dated 31st May, 1982. It is not in dispute that when the petitioner's caste certificate was referred for verification and scrutiny to the Director of Social Welfare, Maharashtra State, Pune, the same was rejected by the said authority which is corresponding to the caste scrutiny committee. Then, in the year 1981–82, an order in regard to verification of caste claim passed by the Director of Social Welfare, Pune was subject to an appellate remedy before the Divisional Commissioner. In the present case, as stated hereinabove, though the first authority rejected the caste claim made by the petitioner, the same was granted by the appellate authority.

4. The petitioner continued to be in employment of MSEB and has derived all the benefits in regard to reservation which are made available to scheduled tribe category candidate. By passage of time, the petitioner came to be promoted from the post of Junior Engineer to that of Assistant Engineer and, thereafter, to the post of Deputy Executive Engineer. Lastly, the petitioner, being desirous of competing in the process of selection for appointment of Executive Engineer from Scheduled Tribe category, submitted the validated caste certificate and claimed that he be considered as a candidate from scheduled tribe category. MSEB refused the request made by the petitioner and insisted upon a fresh caste certificate, so also fresh caste validity certificate to be issued at the hands of the caste scrutiny committee under the new Act viz. 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 (Maharashtra Act No. XXIII of 2001).

5. It is also not in dispute that though the petitioner was selected for being appointed in the post of Executive Engineer, he has not been issued an appointment order but on the contrary, a communication which is challenged in the present writ petition, came to be issued by the Establishment Officer, dated 4th June, 2003. It is stated in the said letter that a caste validity certificate has to be produced, which is issued by the caste scrutiny committee, before the claim of the petitioner can be considered from Scheduled Tribe Category. It was then conveyed to the petitioner to submit the caste validity certificate issued by the caste scrutiny committee within a period of ten days from the date of receipt of the said letter, failing which the selection to the post of Executive Engineer from S.T category will be treated as cancelled. The petitioner has not submitted any caste validity certificate issued by the caste scrutiny committee and as such the effect of the impugned order dated 4th of June, 2003 is cancellation of the petitioner's selection.

6. Shri N.C Phadnis, learned counsel appearing on behalf of the petitioner, submitted that as his tribe claim was once adjudicated upon by the then competent authority in the year 1982, it is not expected either under the provision of 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. (Maharashtra Act No. XXIII of 2001) or under any other law to again approach the competent committee and/or the scrutiny committee under the new Act for obtaining a fresh caste certificate and/or caste validity certificate. Learned counsel appearing on behalf of the petitioner submits that all acts done by competent authorities and scrutiny committees prior to the coming into force of the said Act are saved and as such it is not obligatory on the part of any person claiming social status to obtain the said certificate again. In his submission such an interpretation as is sought to be placed by the respondent employer would be ridiculous. All acts performed by validly constituted competent authorities and other authorities in regard to caste verification need to be protected and it is so protected by an express provision made in the definition of competent authority contained in section 2(b) of the Act. Section 2(b) reads thus:

(b) “Competent Authority” means a officer or authority authorised by the Government, by notification in the Official Gazette, to issue a Caste Certificate, for such area or for such purposes as may be specified in the said notification and shall include all the Competent Authorities already designated by the Government before the coming into force of this Act, having jurisdiction over the area or place to which the applicant originally belongs, unless specified otherwise;”

Perusal of the definition of Competent Authority reveals that a Competent Authority means an Officer or authority authorised by the Government, by notification in the Official Gazette, to issue a Caste Certificate and shall include all the Competent Authorities already designated by the Government before the coming into force of this Act, having jurisdiction over territory concern. The earlier Competent Authorities which were brought into existence validly are saved. The normal rule in regard to interpretation of a provision dealing with saving of the acts done and performed by the Authorities which were validly constituted would apply.

7. On the other hand, per contra, the learned counsel Shri R.K Deshpande, appearing on behalf of the respondents submits that reading of section 4, subsection (2) of the Act, invalidates all the caste certificates issued by the Competent Authorities, if the said authorities did not happen to be the Competent Authority just preceding the point of time when the Act came into force. To put it in other words, Shri R.K Deshpande, submits that though an Executive Magistrate was a Competent Authority in the year 1982 to issue a caste certificate, still Executive Magistrate was not Competent Authority to issue caste certificate on the date on which the Act came into force and as such he submits that the caste certificate issued by Executive Magistrate in the year 1982 stands invalidated by express provision contained in section 4, sub-section (2) of the Act. He then submits that the same analogy need to be applied in regard to caste validity certificate as well. It is submitted by the learned counsel appearing on behalf of the respondents that in the year 1982 under the then prevailing rules, the appellate authority was the Divisional Commissioner, who has validated the tribe claim of the petitioner and as the said authority was not the scrutiny committee, all acts done and orders passed by the Divisional Commissioner or by the Director of Social Welfare, Pune would stand invalidated and lastly Shri R.K Deshpande, submits that as the petitioner is competing for a post, which is a selection post, this would be a fresh appointment, pursuant to an advertisement and as such the insistence on the part of the employer to have a fresh caste certificate and a fresh caste validity certificate at the hands of the competent authority and scrutiny committee, as envisaged under the new Act No. XXIII of 2001, cannot be faulted.

8. Before we proceed to adjudicate the issue involved in the instant petition, it is necessary to have a retrospect in regard to the changes made by the Government from time to time in the constitution of the competent authorities and the scrutiny committees. Prior to 3-6-1996 the caste certificates were being issued by Taluka Executive Magistrate. From 3-6-1996, the caste certificates are being issued by Sub-Divisional Officer. After the change was effected from 3-6-1996, the Government by its Circular dated 13th September, 1996, clarified that all caste certificates issued prior to 3-6-1996 by the Taluka Executive Magistrate are to be accepted as valid. The said decision of the Government is duly authenticated and issued in the name of the Governor of the State. Suffice it to emphasis that the caste certificate issued by the Taluka Executive Magistrate are saved.

9. We have perused the scheme of the Act. The preamble reveals that the said Act is made for the purpose of providing a mechanism for regulation of issuance of verification of caste certificate to the person belonging to Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category and for matters connected therewith or incidental thereto. Prior to the coming in force of the Act No. XXIII of 2001, the subject of caste verification viz. issuance of caste certificate and their scrutiny was regulated by the scheme framed by the Apex Court in Madhuri Patil's case. Prior thereto, in the State of Maharashtra, Government had issued executive instructions and the issuance of caste certificate and its verification was regulated under the Government Resolutions by the Competent Authorities constituted under the said Government Resolution. It is an admitted position that the scheme in regard to issuance of caste certificates and their verification in the year 1982, was that there was a two tier system made to adjudicate the caste claim. In the first instance, it was the Director of Social Welfare, Pune who was to consider the caste claim and pass an appropriate order and the said order was subject to an appeal before the Divisional Commissioner. A full proof enquiry was contemplated under the Government Resolution, pursuant to which orders were passed by the authorities. The said orders were binding on the parties. Needless to mention that the orders passed by the authorities dealing with caste claim were quasi-judicial orders passed on the basis of evidence and material on record. People from the reserve category have sought employment and other benefits over years till a better mechanism was devised and put into effect in form of a scheme laid down in Madhuri Patil's case. The present Act is a step forward. Having regard to the scheme of the Act and reading of section 4, sub-section (2), in the light of the said scheme, we are of the view that the said provision does not invalidate the caste certificates issued by the Competent Officer and/or an Authority, who was then competent to issue such a certificate. We do not find any deviation in the basic idea of issuance of caste certificate and their scrutiny at the hands of the caste scrutiny committee. Right since beginning the system has been that an authority after making a prima facie enquiry used to issue a caste certificate and, thereafter, the said caste certificate was sent for its verification and scrutiny to a responsible officer or authority, who was expected to make an independent enquiry and pronounce the caste status. Similar is the position which is reflected on reading of section 4, sub-section (2). A caste certificate is to be issued by competent authority and the caste certificate so issued is valid subject to verification and grant of validity certificate by the caste scrutiny committee. What has happened by passage of time is that one authority is replaced by other and one scrutiny committee is replaced by another scrutiny committee. To hold that the caste certificate issued or the decision rendered by the authorities, who were then competent, stands invalidated, would lead to absurdity besides multiplicity of litigation. Issues once concluded cannot be allowed to be reopened, otherwise the same would lead to unrest and turmoil. State of calm and repose would be replaced by uncertainty. All the reserve category candidates who have obtained caste certificates and caste validity certificates over years, from the Competent Authorities then validity constituted, would be subjected to a de novo enquiries which could terminate in issuing conflicting and inconsistent orders.

10. It is unthinkable that legislative intent in enacting section 4 sub-section (2) was to invalidate all the caste certificates issued prior in point of time and to further invalidate, as contended by Shri R.K Deshpande, all the orders passed by the Competent Officers, Authorities or Committees. While interpreting a provision, legislature is presumed to be just and fair. A just and fair conjoint reading of section 4 sub-section (2) and the definition of caste certificate and Competent Authority contained in section 2(a) and (b) provides for saving of the caste certificates issued prior to the coming in force of the Act by officers or authorities, then competent to so issue the same and similar would be the case in regard to caste validity certificates issued by the officer, authorities or the committees, then validly constituted. In this view of the matter, we reject the submission of Shri R.K Deshpande, learned counsel appearing on behalf of the respondents, that the caste certificate obtained by the petitioner and the caste validity certificate issued in his favour by the competent authority in the year 1982 does not hold good after the Act comes into force. On the contrary, we hold that the caste certificate and the caste validity certificate issued by the Director of Social Welfare Officer, Pune and the Divisional Commissioner holds good for all purpose and for all time to come. This bring us to the last submission canvassed by the counsel for the respondent, the submission being that selection to the post of Executive Engineer being a fresh appointment, a fresh caste certificate under the new Act, so also a fresh validity certificate can be insisted upon.

11. A person may seek number of fresh appointments with different employers but to expect a candidate from reserve category to produce a fresh caste certificate or validity certificate would be ridiculous and absurd. In this view of the matter, the last contention is also rejected.

12. Our view in regard to the main submission is fortified by two unreported judgments rendered by the Division Benches of this Court. The first one is dated 13th February, 1998 in Writ Petition No. 6375 of 1997, Coram; Ashok A. Desai and T.K Chandra Shekhara Das, JJ. and other judgment is dated 11th November, 1998 in Writ Petition No. 1216 of 1985, Coram: N.J Pandya and A.B Palkar, JJ. In the first case the claim of the petitioner that he belongs to Scheduled Tribes was invalidated by the scrutiny committee and hence a petition was filed. It was submitted that the Tribe claim of the real brother of the petitioner was adjudicated by the appellate authority, the Additional Commissioner, and the decision of the appellate authority in support of the claim of the petitioner was rejected by the Committee. In that context, the Division Bench held that the decision of the appellate authority was conclusive and binding on the authorities. In other words, what is held is that a decision rendered by the competent authorities earlier in point of time cannot be overlooked by the succeeding scrutiny committee and the same is binding. Similar is the position in regard to the judgment delivered by Justice N.J Pandya, wherein it is held that the caste validity certificate issued by Additional Commissioner, who was at the relevant point of time, a competent Appellate Officer to scrutinise the caste claim, is valid and binding, as it had power to decide the appeal and such a decision could only be set aside by an Authority or Court having jurisdiction to do so. What emerges from the decisions in the said two cases is that the scrutiny committee functioning under the Act, cannot sit in appeal over the decision of Additional Commissioner, who was a Competent Authority and equivalent to the caste scrutiny committee to determine the caste status. Perusal of the provision of the Act in no way suggests that the caste scrutiny committee has power, authority and jurisdiction to sit in appeal over the decision of the Additional Commissioner and in this view of the matter, the decision given by the Additional Commissioner prior to the constitution of scrutiny committees would bind the scrutiny committees.

13. In the result, the writ petition is allowed. The impugned order dated 4th June, 2003 issued by the Establishment Officer of MSEB is quashed and set aside. We direct the respondents to consider the caste certificate and the caste validity certificate possessed by the petitioner, as good and valid, and to act on the same. We further direct the respondents to issue appointment order appointing the petitioner as Executive Engineer. Rule is made absolute in terms of prayer clause (A). There shall be no order as to costs.

Writ petition allowed.