2012(1) ALL MR 175
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B.P. DHARMADHIKARI AND A.P. BHANGALE, JJ.
Niranjan Laxminarayan Yeddeloo Vs. The State Of Maharashtra & Ors.
Misc. Civil Application (Review) No. 678 of 2009,Writ Petition No. 1505 of 2006
18th August, 2011
Petitioner Counsel: Shri A.S. KILOR
Respondent Counsel: Shri ANOOP PARIHAR, Mrs. S.W. DESHPANDE, Shri A.D. MOHGAONKAR
Maharashtra Scheduled Castes, 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), Ss.6, 8 - Caste Claim - Application for - If Telegu happens to be only a language and not a caste, the scrutiny committee, held, could not have treated it as a caste. (Para 11)
Anil Ramdas Mede Vs. State of Maharashtra & Ors., 2004(4) ALL MR 639=Writ Petition No. 5090 of 2003, Dt.26.08.2004 [Para 1,3,5]
Ajay Ramdas Mede Vs. State of Maharashtra & Ors., Writ Petition No. 2290 of 2007, Dt.24.10.2008 [Para 3,5]
Mohit Suresh Mede & Anr. Vs. State of Maharashtra & Ors., Writ Petition No. 3417 of 2008, Dt.08.09.2009 [Para 3,5]
B.P. DHARMADHIKARI, J. :- The applicant/ petitioner employee of Respondent No. 3 has sought review of the judgment dated 09.04.2009 passed by this Court in Writ Petition No. 1505 of 2006. The Hon'ble Apex Court permitted its filing when said judgment was questioned in Special Leave Petition (Civil) 11159 of 2009 and on 12.05.2009 it has requested this Court to have a fresh look as the judgment earlier delivered by this Court in the case of Anil Ramdas Mede vs. State of Maharashtra & Ors. (Writ Petition No. 5090 of 2003 decided on 26.08.2004 : [2004(4) ALL MR 639]) holding Telugu to be a language and not a caste was not considered and there was no finding in that connection in the impugned judgment. Reference to documents is as per their serial number in order of Scrutiny Committee.
2. We have heard Shri Kilor, learned counsel for the applicant/ petitioner, Shri Parihar, learned AGP for respondent No. 1, Mrs. Deshpande, learned counsel for respondent No. 2 and Shri Mohgaonkar, learned counsel for respondent No. 3 in this background.
3. Shri Kilor, learned counsel has pointed out judgment in Writ Petition No. 5090 of 2003 dated 26.08.2004 : [2004(4) ALL MR 639] (Anil Ramdas Mede vs. State of Maharashtra & Ors.), particularly para 7 therein to show a finding that Telugu has been found to be an official language under Schedule VIII of the Constitution of India and not a caste. He further states that same view has been followed in Writ Petition No. 2290 of 2007 decided on 24.10.2008 (Ajay Ramdas Mede vs. State of Maharashtra & Ors.) and later on in Writ Petition No. 3417 of 2008 decided on 08.09.2009 (Mohit Suresh Mede & Anr. vs. State of Maharashtra & Ors.). His contention is only because Telugu has been shown as caste in documents at Sr. Nos. 4 & 5 filed by applicant / petitioner before Scrutiny Committee, the documents at Sr. Nos. 2, 3, 7 & 9 which recorded the caste of the petitioner and his relatives as Mannewar could not have been overlooked. His other contention is, these documents at Sr. Nos. 2, 3, 7 & 9 needed independent and impartial consideration and as that has not been done, there is failure to exercise jurisdiction. Our attention has been invited to representation dated 21.03.2005 submitted by the petitioner to Scrutiny Committee in this respect to show that the view of Division Bench in the case of Anil Ramdas Mede vs. State of Maharashtra & Ors. has been expressly pressed into service and it has also been pointed out that Telugu is an official language. That view does not find consideration in the impugned order of Scrutiny Committee.
4. His other contention is, when two earlier Division Benches of this Court had taken a view that Telugu was not a caste but a language, the Division Bench in its order dated 09.04.2009 (under review) could not have held that Caste Scrutiny Committee was bound by mention of caste in documents and it was not open to it to find out whether Telugu is a caste or language. He, therefore, states that the matter needs to be sent back to Scrutiny Committee for considering independently the documents at Sr. Nos. 2, 3, 7 & 9 filed by the petitioner before it.
5. Mrs. Deshpande, learned counsel for respondent No. 2 states that the basic judgment which holds that Telugu is not a caste delivered in Writ Petition No. 5090 of 2003 [2004(4) ALL MR 639] on 26.08.2004, does not really adjudicate that issue. Her contention is, there the counsel appearing for Scrutiny Committee conceded to the position that Telugu was a language mentioned in Schedule VIII of the Constitution of India and because of this concession, inference that Telugu is not a caste has been drawn. She further points out that said judgment has then been followed in Writ Petition No. 2290 of 2007 and thereafter in Writ Petition No. 3417 of 2008. Our attention has been invited to reply filed to this review application on affidavit by the Member Secretary of Scrutiny Committee to urge that Telugu is also a caste and it finds mention in Census of India in 1921 and also in Census of H.E.H. Nizam's Domain 1921. It is further pleaded that "Telaga" is also a caste well known in that region and it has 5.2% of population in Andhra Pradesh. Mrs. Deshpande, learned counsel, therefore, states that there has to be an adjudication in this respect and contention of Shri Kilor, learned counsel that documents showing caste of father of the petitioner as Telugu could have been ignored is, therefore, misconceived.
6. Shri Parihar, learned AGP supports the argument of Mrs. Deshpande, learned counsel. Shri Mohgaonkar, learned counsel states that Respondent No. 3 is bound by due adjudication at the hands of Respondent No. 2.
7. We have perused the orders dated 09.04.2009 passed in Writ Petition No. 1505 of 2006 of which review is sought. In the light of observations of the Hon'ble Apex Court in Special Leave Petition No. 11159 of 2009 mentioned supra, it is apparent that the question raised has not been gone into in appropriate details in that order. When earlier two Division Bench judgments treated Telugu as a language and did not accept it as a caste, it is apparent that in view of these judgments of High Court, it was not open to the Scrutiny Committee to hold Telugu as a caste. The judgments of this Court may have been incorrect but till they hold the field, Scrutiny Committee was duty bound to implement the same. The finding recorded by this Court in the order dated 09.04.2009 that Scrutiny Committee had no jurisdiction to adjudicate whether Telugu was name of language or caste are, therefore, unsustainable. That finding was already recorded by the Division Benches and it was binding on the Scrutiny Committee. The Division Bench, therefore, ought to have proceeded to find out whether those judgments of Division Benches needed adherence in facts before it. It is obvious that a case for review is, therefore, made out.
8. The reply affidavit filed by Member Secretary of Respondent No. 2 - Scrutiny Committee shows existence of Telugu as a caste as a matter of fact. The existence is shown since 1921 in two Censuses i.e. one by then Government of India and other by Government of Nizam. The MemberSecretary has also pointed out that a caste "Telaga" also exists with 5.2% population in Andhra Pradesh.
9. The situation needs to be viewed in the light of this material. The judgment delivered first in point of time i.e. 26.08.2004 particularly para 7 therein reveals that the Division Bench then was of the view that it has to first see whether Telugu is caste at all. The Committee through its counsel then conceded that there is/ was no such caste and Telugu is only an official language mentioned in Schedule VIII of the Constitution of India. In view of this, the Division Bench could not sustain the impugned order of Scrutiny Committee. This order has then been followed by subsequent two Division Benches as already noted above. The facts clearly show that attention of said Division Bench which delivered the judgment on 26.08.2004 was not invited to and could not be invited to existence of Telugu caste itself. It is obvious that Census of India 1921 or then Census of H.E.H. Nizam's Domain 1921 were, therefore, then not pressed into service. In the absence of this material and because of the concession given, a finding has been recorded which at least at this stage does not prima facie appear to be correct. However, the learned counsel for review applicant/ petitioner has rightly pointed out that this material was never used by Scrutiny Committee in his case. We find substance in this contention.
10. The review applicant has on 21.03.2005 made a representation and expressly pointed out judgment of Division Bench of this Court dated 26.08.2004. Thus, he has raised an issue and contended that Telugu is not a caste but an official language. It was open to Respondent No. 2 - Committee to look into it. On the contrary, in this situation, it was obligatory for Respondent No. 2 - Committee to record a finding on that stand. Unfortunately, Respondent No. 2 - Committee has not looked into that contention and hence its order impugned in writ petition and passed on 07.11.2005 does not make any reference to this judgment. It is also clear that position disclosed by Member - Secretary in affidavit filed in reply to review application is, therefore, also not looked into by Scrutiny Committee while passing that order.
11. If Telugu happens to be only a language and not a caste, the Scrutiny Committee could not have treated it as a caste and then an independent exercise to find out whether other documents submitted by the petitioner to substantiate his caste claim deserved importance was necessary. The Scrutiny Committee has not followed this course of action but contrary to the judgment of the High Court, it treated Telugu as caste, having found material against the petitioner, it did not look into any other material to ascertain his caste claim. In this situation, the said order dated 07.11.2005 is unsustainable, it is quashed and set aside. The proceedings for caste verification of claim of the applicant/ petitioner are restored back to Respondent No. 2 - Scrutiny Committee for taking fresh decision in accordance with law. The contention of the petitioner that Telugu is only a language and not a caste is kept open for its due consideration by Scrutiny Committee. If the Scrutiny Committee wants to rely upon two 1921 Censuses (supra) then Scrutiny Committee shall make available the material to the applicant/ petitioner and after giving him necessary opportunity proceed further to record appropriate finding. The other documents submitted by the petitioner to substantiate his caste claim as belonging to Mannewar - Scheduled Tribe shall be independently evaluated by the Scrutiny Committee.
12. The petitioner is directed to appear before the Scrutiny Committee on 19th September 2011 and to abide by its further instructions in the matter. The Scrutiny Committee shall attempt to complete the process of adjudication in accordance with the provisions of Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance & Verification of) Caste Certificates Act, (Act No. 23 of 2001) as early as possible and in any case by 28th February 2012. Review Application is thus allowed. Rule is made absolute accordingly. However, there shall be no order as to costs.