Abhay Dnaneshwar Jagtap v. State of Maharashtra

Mr. R K Mendadkar for the Petitioners Mr. C R Sonawane, AGP, for the Respondent Nos.1, 2 and 4. ALOANG WITH WRIT PETITION NO. 5458 OF 2009 Vaishali Mahadev Kolpe versus : Petitioner The Tahasildar & Executive Magistrate Velhe & ors. : Respondents. Mr.Milind Deshmukh for the Petitioner Mr A B Vagyani, AGP, for the Respondent Nos.1 to 3. 3 CORAM : S B MHASE & DATE : R M SAVANT, JJ. 1st September 2009 COMMON P.C.

Rule. Rule with the consent of the parties made returnable forthwith. Heard the learned counsel for the parties.

Leave to amend granted except in Writ Petition No.5836 of

2009. Amendment to be carried out forthwith.

All these petitions are heard and decided together by a common order as they involve common point viz Whether one of the members of the Scrutiny Committee namely Mr A V Hankare, Member and Research Officer, was competent to act as a Member and Research Officer of the said committee. For the sake of convenience the facts in Writ Petition No.5836 of 2009 would be referred to.

It is an admitted fact that Mr.A V Hankare is working as a Junior Administrative Officer with the Scrutiny Committee. The Petitioner in Writ Petition No.5836 of 2009 has raised objection in the following terms :- 4 “(I) That the impugned order passed by the respondent no.2 committee cannot be sustained in law, as the respondent no.2 committee itself was not properly constituted to hear the case of the petitioner. This would be clear from the fact that the hearing was heard on

27.5.2009 by the three members, of which one Shri A.V. Hankare, is not the research officer but he is working as Junior Administrative Officer. This position has been confirmed by the Public Information Officer attached to the respondent no.2 committee to one Shri Sanjay Shankar Pawar. Hereto annexed and marked as Exhibit “F” is the copy of the said communication. Thus, the impugned order is vitiated and therefore, liable to be set aside. (II) That the respondent no.2 committee failed to see that it has been constituted in accordance with section 6(1) of the Caste Certificate Act, 2001. In the said Act, there is no power of delegation”

In response to these grounds, Additional Affidavit- o Mr.Anil D Shejale, Deputy Director, Scheduled Tribe Certificate Scrutiny Committee Pune Region, Pune has been filed by Respondents-State and in Paras 3, 4 and 7 of the said Affidavit it has been averred by the State Government in the following manner :- 5 “Para-3 :- I say that, I am filing the present additional affidavit-in-reply on the basis of the record available in our office. I say that Shri A V Hankare, Jr.Administrative Officer, Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune was assigned additional charge of the post of “Research Officer” because one Shri M A Shaikh, Research Officer was promoted and came to be transferred to the office of the Additional Tribal Commissioner, Thane and therefore, the post of Research Officer of the Committee at Pune, became vacant. Para-4 :- I say that to avoid delay in deciding the cases pending before the Committee the said Shri A V Hankare, Jr.Administrative Officer was directed by the Joint Commissioner, Scheduled Tribe Certificate Scrutiny Committee, Pune i.e. Respondent No.2, to work as a member of the Committee to fulfil the coram of three members of the Committee. The additional charge of the vacant post of Shri M A Shaikh, Research Officer, was handed over to Shri A V Hankare, Jr.Administrative Officer by charge transfer certificate dated 17/11/2007. (Here to annexed and marked as Exhibit-! Is the copy of the charge transfer certificate dated 17/11/2007) of the Committee 6 charge hand over to Shri A V Hankare, Jr.Administrative Officer to work as a member of the Committee at Pune. Para-7 :- I say that Shri A V Hankare is a well experience and having experience of 27 years in the Tribal Development Department and by way of stop-gap arrangement it was expedient and necessary in view of the above said fact that Shri M A Shaikh, Research Officer was promoted and transferred to the office of the Additional Commissioner, Thane and therefore, the said Shri A V Hankare, Jr. Administrative Officer was directed to work as the member of the Committee, Pune for the above said period.

The Committee is required to be constituted as per Section 6 of the Act by issuing notification. According to the learned AGP Shri. Gokhale, the Research Officer was one Shri M A Shaikh, he was promoted, and therefore to complete the coram of the committee Shri A V Hankare was asked to work as a Member and Research Officer in his place by way of stop gap arrangement, and therefore, Shri A V Hankare has participated in the proceedings of the Scrutiny Committee. The Respondents have lost sight of the fact that the Scrutiny Committees were constituted in view of the judgment in the case of Kumari Madhuri Patil 7 v/s Addl. Commissioner, Tribal Department, reported in AIR (1994) 6 SCC 241 and in Para 13 Clause 4 of the said Judgment, the Apex Court has given summary direction to constitute a committee. Para 13 Clause Para 4 of the said Judgment reads thus :- “All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.

What is important to be noted that in case of Scheduled Tribes, the Officer who has intimate knowledge in identifying the tribes, tribal communities, part of or groups of tribes or tribal communities can be appointed as a Research Officer and in the case of Scheduled Caste officer who has intimate knowlege in verification and issuance of the social status certificates is required to be appointed. In the above Petition, 8 we are concerned with Scheduled Tribe because the Petitioner is claiming status as “Thakar” - Scheduled Tribe. Conspicuously it is required to be mentioned that the Affidavit and Additional Affidavit filed by the State Government nowhere mentions that Shri A V Hankare is a person having intimate knowlege in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities so also his educational qualification and his knowledge and expertise in the filed has not been disclosed in the said affidavits.

With the aforesaid directions the above Petitions are disposed of by making the Rule absolute in the above terms.

The Civil Application No.2153 of 2009, which is for amendment, is allowed. The Petitioner/Applicant to carry out the amendment accordingly. The Civil Application No.2153 of 2009 to stand