BALWANT VITHAL JALGAONKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner joined the employment under the State way back in the year 1955 w. e. f. 19. 12. 1955 as a clerk. During his service career, he earned few promotions and on reaching the age of superannuation, he stood retired from service from the post of Section Officer in Social Welfare Department, Mumbai, w. e. f. 28. 2. 1989. The petitioner who is a retired Government servant, was appointed against the post available from open category and not against a post reserved for any backward class, is an admitted position. While entering the service, the petitioner's caste came to be recorded as Koli B. C. (Backward Class ). However, the petitioner had made an application for correction of the said entry in the service book as he wanted the said entry to be changed from Koli (B. C.) to Tokre Koli Scheduled Tribe. On representation made by the petitioner, the said change was permitted to be effected by the higher authorities. It appears that some person using fictitious name as N. G. Wasve, made a complaint that the caste certificate obtained by the petitioner that he belongs to Koli Mahadeo Scheduled tribe is false and by the said complaint, action against the petitioner was sought on the ground that he availed the benefits meant for Scheduled Tribe candidates. It further appears that on receipt of the said complaint, explanation of the petitioner was sought in regard to the change in the entry in the service record so also information was called for as to on what basis the entries in the service record came to be altered. The petitioner was also directed to produce the caste certificate (Tribe Certificate ). The petitioner replied the show cause notice and produced the caste certificate which was forwarded to the Director of Tribal Development and Research Institute, Pune. After scrutiny and verification of the caste claim of the petitioner, the then Scrutiny Committee by its decision dated 15. 10. 1985 rejected the tribe claim of the petitioner to Tokre Koli Scheduled Tribe. What is pertinent to note is that when the Scrutiny Committee rejected the tribe claim of the petitioner on 15. 10. 1985, by then the caste claim of one of the daughters of the petitioner, by name, Nilima, had already undergone the process of verification and scrutiny and her tribe claim to tokre Koli Scheduled Tribe was accepted in an appeal by the Additional commissioner. What is to be seen is that the Tribe claim of Nilima viz. the petitioner's daughter was initially rejected by the Scrutiny Committee and being aggrieved thereby, an appeal was carried by Nilima before the additional Commissioner, Nashik, wherein she succeeded. As such the first order which conclusively adjudicated the social status of one of the family members of the petitioner is an order dated 4. 2. 1988 and the same had gone in favour of the concerned candidate. The legality, validity and propriety of the said order has not been called in question till date by any one before any appropriate forum and as such the same has assumed finality.

(2.) REVERTING back to the sequence of events, after rejection of the claim of the petitioner by the Scrutiny Committee on 15. 10. 19,85, he preferred an appeal before the Additional Divisional Commissioner, Nashik. It appears that in the proceedings before the appellate authority the petitioner produced the Tribe validation order passed by the Additional Divisional Commissioner, Nashik, in favour of his daughter Nilima and as the appellate authority thought that the said document is a crucial document having bearing on the issue of adjudication of the tribe claim of the petitioner, he returned the papers back to the Scrutiny Committee for making de novo enquiry. Perusal of the communication from the appellate authority dated 10. 12. 1985 records a cryptic order which recites that the original papers together with additional evidence which is produced before the appellate authority be despatched to the Scrutiny Committee for fresh decision. It further directs the Committee that if need be, the appellant be offered a fresh hearing in the matter. We read the order of the appellate authority dated 10. 12. 1985 as an order of remand with a direction to hold a de novo enquiry in the matter. After remand, the scrutiny Committee delivered its judgment wherein strangely enough there is no mention whatsoever in regard to the documents which appears to have been produced in the first round of litigation before the appellate authority viz. the caste validation order of the petitioner's daughter namely, Nilima. Perusal of the record clearly reveals that after the remand of the matter to the Scrutiny Committee fact finding was caused to be made by deputing a Sub-Divisional Officer and when the petitioner 2004 (3) Mah L R - 44 came to be interrogated by the Sub Divisional Officer three more documents were tendered by the petitioner and the said three documents were in regard to the caste validation order passed by the Committee or the appellate authority in regard to (i) Shri Rajendra R. Lohare, (ii) Prakash r. Nandanware and (iii) Ramesh D. Baviskar. It is the case of the petitioner that the said three persons are near blood relations of the petitioner and as their tribe claim as belonging to Tokre Koli has been validated, the said documents would be relevant documents to adjudicate the tribe claim of the petitioner. Rajendra Lohare happens to be the husband of the paternal aunt of the petitioner. Prakash Nandanware happens to be the husband of the maternal aunt of the petitioner and Ramesh d. Baviskar happens to be the son of the real sister of the petitioner's father. Perusal of the order passed by the Scrutiny Committee reveals that the said three documents were taken into consideration and after appreciating evidentiary value thereof, the claim of the petitioner was rejected. What is relevant to note, and it is reiterated with the risk of repetition, that the caste validation order passed in favour of Nilima, the daughter of the petitioner, by the appellate authority holding her to be belongings to Tokre Koli, has not been even referred to in the decision/ order passed by the Committee. The petitioner emphatically claims that the said document was very much available on the file of the Scrutiny committee but the Committee failed to consider the same; whereas it is the case of the respondents that the said document was not placed on record of the Scrutiny Committee.

(3.) AGGRIEVED by the decision of the Scrutiny Committee, the present petitioner preferred an appeal before the Additional Commissioner, nashik Division, Nashik and it is the order passed by the appellate authority which is challenged in the instant petition. No doubt, the appellate authority has considered the said material document which according to the petitioner is vital and clinching viz. the caste validation order passed in favour of the petitioner's daughter, Nilima.