Mr Mahesh S. Deshmukh, Advocate for petitionerMr Amar v. Lavte, A.G.P. for
Facts
Judgment - WP 13809(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 13809 OF 2021Gorakhnath s/o Baliram Wagwad,Age: 41 years, Occu: Service,R/o. Marwali, Tq. Naigaon (Kh.),District Nanded….PETITIONERVERSUS1)The State of Maharashtra,through Principal Secretary,Tribal Development Department,Mantralaya, Mumbai-322)Schedule Tribe Certificate Scrutiny Committee,Nashik Division, Nashik,through its Member Secretary3)Schedule Tribe Certificate Scrutiny Committee,Aurangabad Division, Aurangabad,through its Member Secretary4)Zilla Parishad, Hingoli,District Hingolithrough its Chief Executive Officer5)Zilla Parishad, Nanded,District Nanded,through its Chief Executive Officer ….RESPONDENTS ….Mr Mahesh S. Deshmukh, Advocate for petitionerMr Amar V. Lavte, A.G.P. for respondent Nos.1 to 3/StateMr Shaikh Parvez, Advocate h/f Mr S. B. Pulkundwar, Advocate for respondent Nos.4 & 5 Judgment - WP 13809(2) CORAM : MANGESH S. PATILAND PRAFULLA S. KHUBALKAR, JJ. DATE : 24th January 2025JUDGMENT (PER : Prafulla S. Khubalkar J.) 1.Heard learned advocates for respective parties. 2.Rule. Rule made returnable forthwith. Heard finally byconsent of the parties.3.Challenge is raised to the order dated 30/05/1998, passedby respondent No.2/ Scheduled Tribe Certificate Scrutiny Committee,Nashik in a proceeding under Section 7 of the Maharashtra ActNo.XXIII of 2001, by which petitioner’s claim for ‘Koli Mahadev’Scheduled Tribe is invalidated.4.By the impugned order, the caste scrutiny committee hasobserved that the petitioner has failed to establish his caste claim onthe basis of documentary evidence as well as on account of failure toprove affinity with ‘Koli Mahadev’ Scheduled Tribes. Although thecommittee has referred to a number of documents submitted by thepetitioner including the documents of pre-independence era, however,
Legal Reasoning
Judgment - WP 13809(6) delayed challenge. As the issue is about his social status, which hasfar-reaching consequences, it will not be in the interest of justice toadopt a hyper technical approach and nonsuit the petitioner on thiscount alone. Our view is fortified by the observations of this court inparagraph No.7 of the judgment dated 04/04/2007 in SudhakarGunarao More (supra), which is reproduced below :-“7. It is true that on earlier occasion, the decision is renderedby the Committee on 16.06.1994, whereas the petitioner hasraised challenge to the said decision in the year 2006. Thereare latches on the part of the petitioner in approaching thisCourt. However, as the petitioner has not taken any benefits inrespect of his tribe claim while prosecuting his studies nor hasclaimed any benefits in respect of employment, it would beappropriate to afford an opportunity to the petitioner toestablish his status claim. As the matter relates to the socialstatus of the petitioner which will have far reachingconsequences and not only the petitioner but the futuregenerations are also likely to be affected because ofdetermination of status claim, we find it appropriate to entertainthe challenge raised by the petitioner, though belatedly, in viewof the peculiar circumstances stated above.” 10.Pertinent to note, challenge to an order of invalidation isnot an adversarial litigation. The issue is about petitioner’s socialstatus, which he is entitled to agitate for the purpose of claimingbenefits. Although the candidate is required to be vigilant in raising Judgment - WP 13809(7) challenge, however, in absence of any prejudice being caused to therespondents, the petitioner cannot be non-suited on account of delayand laches. Allowing a candidate to raise delayed challenge to hisinvalidation will at the most give him an opportunity to establish hissocial status. At the same time, in case, on account of delayedchallenge, any prejudicial situation arises like creation of rights infavour of others by way of employment, election or otherwise, then ofcourse the issue of delay will have to be given due consideration. Inthe instant case, since the petitioner has not claimed any benefit of hiscategory despite order of invalidation of 1998, the challenge raised inthe year 2021 need not be negated on that count. Petitioner hasdemonstrated that although he was not in need of validity certificatefor his employment, however, failure to challenge the order ofinvalidation may attract severe consequences touching the rights of hisfamily members. On careful consideration of the entire issue, we areof the view that, although challenge is raised belatedly, the petitionneeds to be entertained. 11.As regards the reliance placed on validity certificates ofclose relatives of the petitioner, the relationship of the petitioner withNavnath Baliram Wagwad being real brother brother, Madhavi Judgment - WP 13809(8) Gorakhnath Wagwad as daughter and Sujeet Navnath Wagwad asnephew is not disputed. In view of the validity certificates in favour ofthese persons, the petitioner’s reliance on their validities appears to begenuine. 12. Further, the petitioner has adverted our attention to therecent judgment dated 07/07/2023 in Writ Petition No.10954/2022 inthe matter of Madhavi Gorakhnath Wagwad (supra) and submitted thatin view of the validation of claim of his daughter, his claim also needsto be validated. Perusal of the original record in the matter of MadhaviGorakhnath Wagwad, makes it clear that the claim of Madhavi wasdecided by following due procedure, pertinently, on the basis ofvigilance cell report dated 30/06/2021. As laid down in the judgmentof Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs.State of Maharashtra and others, [AIR 2023 Supreme Court1657], the scope of enquiry in case of validities of blood relatives isabout compliance with due procedure and therefore the petitioner isentitled to rely upon and derive benefit of the validity of Madhavi. 13.Thus, considering the validity certificates of petitioner’sclose blood relatives, view of the position of law settled by theauthoritative pronouncement of the Hon’ble Supreme Court in the Judgment - WP 13809(9) matter of Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti(supra) and the judgment of this Court in the matter of Apoorva VinayNichale Vs. Divisional Caste Certificate Scrutiny Committee No.1and others, [2010 (6) Mh. L.J. 401], the petitioner is also entitled tovalidation of his claim. However, since the committee has observedthat certain other documents were not considered while deciding theclaim of Madhavi, the decision to grant validity to Madhavi was madesubject to outcome of decision in the matter of Navnath BaliramWagwad, and therefore, the petitioner’s claim also need to be madeco-terminus with that of Madhavi and Navnath. Therefore, in view ofthe judgment of the Principal Seat in the matter of Shweta BalajiIsankar vs. The State of Maharashtra and others, [2018 SCCOnLine Bom 10363] (Writ Petition No.5611/2018), the claim ofpetitioner needs to be validated making it subject to outcome of thevalidities which the committee has decided to reopen. 14. Hence, we pass the following order:-(a)The writ petition is partly allowed.(b)The impugned order dated 30/05/1998, passed byrespondent No.2/scrutiny committee is quashed and set aside. Judgment - WP 13809(10) (c)Respondent No.2/scrutiny committee is directed toimmediately issue validity certificate to the petitioner of ‘KoliMahadev’ Scheduled Tribe, which shall be co-terminus with thevalidity of Madhavi Gorakhnath Wagwad and Navnath BaliramWagwad.(d)The petitioner shall not claim any equities. 15.Rule is made partly absolute in above terms.(PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.)sjk
Arguments
Judgment - WP 13809(3) it has concluded that those documents cannot be conclusively reliedupon in view of residence of petitioner’s family being not from thescheduled area. 5.Advocate Mahesh Deshmukh learned counsel forpetitioner has vehemently argued that the petitioner’s claim ought tohave been validated in view of the documents of high probative valuerelied upon by him and in view of the validity in favour of his closeblood relatives. He has placed heavy reliance on validity ofpetitioner’s brother Navnath Baliram Wagwad, daughter MadhaviGorakhnath Wagwad and his nephew Sujeet Navnath Wagwad. It issubmitted that the validity was granted to these blood relatives byfollowing the due procedure and in view of validation of their claims,the petitioner’s claim needs to be validated on this sole count. Asregards the affinity test, it is submitted that the inference of therespondent committee is erroneous and is general in nature anddemonstrates erroneous approach. He has relied upon the order dated07/07/2023 in the matter of Madhavi Gorakhnath Wagwad Vs. State ofMaharashtra and others in Writ Petition No.10954/2022, allowingpetition of Madhavi granting her validity. Judgment - WP 13809(4) 6.Advocate Mr Lavte, learned A.G.P. for respondent Nos.1to 3 and learned advocate Mr Shaikh Pirzade for respondent Nos.4 and5 have strongly opposed the petition raising several grounds. Theyhave vehemently submitted that the petition is liable to be dismissedon account of delay and laches since the impugned order dated30/05/1998 is challenged in the year 2021 without any justifiablereason. They have also submitted that the validity in the matter ofNavnath Baliram Wagwad, Madhavi Gorakhnath Wagwad and SujeetNavnath Wagwad cannot be conclusively relied upon since thepetitioner was required to prove his claim independently since burdento prove caste claim lies upon the candidate as per Section 7 of theMaharashtra Act No.XXIII of 2001.7.To overcome of opposition on the point of delay andlaches, learned advocate for the petitioner has relied upon theobservations of this court in the judgment dated 04/04/2007 in WritPetition No.8374/2006 in the matter of Sudhakar Gunarao More Vs.S.T.C.C. Committee, Nashik and others, which was also relied uponjudgment of this court dated 25/11/2010 in Writ Petition No.3457/2010(Suraj Fulchand Balvant Vs. Scheduled Tribe Certificate ScrutinyCommittee, Aurangabad). Judgment - WP 13809(5) 8.During the course of hearing, the original record in thematter of Madhavi Gorakhnath Wagwad and the petitioner were madeavailable for our perusal. We have considered the rival contentionsand perused the records. 9.Before we delve into the merits of the matter, the issue ofdelay and laches needs to be carefully considered. It is undisputed factthat the impugned order is challenged in the year 2021, which is after asubstantially long period. There is delay on the part of the petitioner inapproaching this Court. Petitioner has averred in the petition that hisemployment as Shikshan Sevak was against General (open) categoryseat and since he did not avail of any benefit on the basis of beingmember of scheduled tribe, he had not challenged the impugned orderearlier. True it is, there is substantial delay on the part of petitioner,however, material issue is whether the delay is intentional and further,whether any prejudice is caused to the respondents on account offailure to raise immediate challenge. Issue is with respect to decisionof social status of the petitioner, which is crucial for his entire family.It has also to be noted that after the invalidation of his claim, thepetitioner has not availed any benefit based on his social status andtherefore, no intention can be attributed to him only on account of