1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR.
Writ Petition No.15/2011 Dhanraj Singh Pusam.
-Versus- State of M.P.and otheRs.PRESENT : Hon’ble Shri Justice K.K.Trivedi.
Shri Ajay S.
Raizada , learned counsel for the petitioner.
Shri Puneet Shroti, learned Panel Lawyer for respondents No.1,3,4 and 6.
Shri Kishore Shrivastava, learned Senior counsel assisted by Shri Sanjay Ram Tamrakar, for the respondent No.5.
ORDER
(24.07.2013) 1: This petition under Article 226 of the Constitution of India is said to have been filed for grant of a writ of quo warranto directing removal of respondent No.5 from the post on various allegations.
It is contended by the petitioner that he is a social worker and a member of Gondwana Gantantra Party and an office bearer of the said party being Media Incharge.
The respondent No.5 was born at Gwalior, has obtained his education without claiming any benefit of reservation, took part in the selection for appointment on the post of Assistant Engineer, was appointed as such in General category, but by 2 manipulating the record on the strength of some sort of caste certificate, got the benefit of reservation and accelerated promotion in the service as a result, he got himself appointed by promotion on the post of Chief Engineer in the Water Resources Department.
This being so, various complaints were made, but none of the complaints were looked into.
Ultimately, a Public Interest Litigation was brought before this Court, but the Division Bench of this Court permitted the petitioner to withdraw the said writ petition with liberty to resort to the remedy available under the law.
Since the complaints are not being looked into by the authorities despite approach, this writ petition was required to be filed.
On the basis of these allegations, the petitioner has claimed the following reliefs :- “7-A.
To call for the entire record including the service book from the respondents.B.To direct enquiry by C.B.I.into the misdeeds of Shri Batham.C.To direct the Respondents to take action against Shri Batham by initiating criminal prosecution and also to proceed departmentally against Shri Batham.D.To restrain the Respondent Shri Batham from functioning as Chief Engineer.E.To quash the order dated 21.5.2009.F.To pass any other writ/writs, order/ordeRs.direction/directions, which the Hon'ble Court feels just and proper in the facts and circumstances of the case.G.To award cost of the petition.”
2: Highlighting the allegations made in the petition, it is contended that the well settled law is that ‘Majhi’ is a 3 Scheduled Tribe in certain districts like Datia, Tikamgarh, Chhindwara, Panna, Satna, Rewa, Sidhi and Shahdol, but admittedly the petitioner, who belongs to Gwalior could not be treated as Scheduled Tribe and was not to be given the benefit of reservation.
These facts the petitioner has brought to the notice of this Court while filing the rejoinder to the return filed in the earlier Public Interest Litigation and the Notification issued by the President in this respect, was produced.
The Division Bench decisions have been placed on record to show that the respondent No.5 could not be treated as a Scheduled Tribe person and, therefore, correction in the gradation seniority list with respect to the description of the caste of the respondent No.5 is sought to be challenged.
It is contended that all this was done by the respondents playing hand in gloves with the respondent No.5 to favour him and, as such, the respondent No.5 was liable to be removed from the post.
It is further contended that the general instructions were issued in respect of those employees whose caste certificates were under investigation, therefore, the case of respondent No.5 was to be deferred from consideration for promotion.
However, instead of following the said instructions so issued by the respondents, since accelerated promotions have been granted to the respondent No.5, it is contended that such actions were bad in law and the matter was required to be investigated by the Central Bureau of Investigation and action was required to be taken against the respondent No.5.
3: On being noticed, the respondents have filed their return.
The respondents No.1 to 4 and 6 have opposed the claim made by the petitioner and have contended that right from day one, the respondent No.5 was treated to be a member of Scheduled Tribe and his appointment was made as such.
There were certain errors committed in the gradation seniority list with respect to giving the description of the reservation 4 category of respondent No.5 and when these facts were brought to the notice of the authorities, the same were corrected.
It is contended that the presidential notification of Scheduled Caste and Scheduled Tribe Order as amended by Act of 1976 published on 1st July 1977 in the Gazette described that ‘Majhi’ is the Scheduled Tribe within the whole of the State.
It is not declared to particular district, as has been done in cases of certain other Scheduled Tribes.
Thus, it is contended that if the respondent No.5 was treated to a Scheduled Tribe and was given promotion and a direction was issued for correction in his description in the gradation list, no wrong is committed.
It is, thus, contended that the caste certificate issued in respect of respondent No.5 has not been challenged in any manner.
Had a proper challenge been made, the caste certificate issued in respect of respondent No.5 would have been enquired into.
For any other irregularities, facts were brought to the notice of the respondents and they have enquired into the same.
Nothing wrong was found with respect to working of the respondent No.5 and he has rightly been granted the promotion in accordance to the reservation strictly in accordance to the provisions made in the Rules.
Thus, it is contended that the petition being wholly misconceived deserves to be dismissed.
4: The respondent No.5 has filed a return independently categorically denying all the allegations and stating that the petitioner has no locus to challenge appointment or promotion of the respondent No.5, or to seek any writ of quo warranto against him.
It is categorically contended that in fact a camouflage petition has been filed in the garb of this writ petition for grant of writ of quo warranto otherwise the petitioner has no locus to challenge such promotion of the petitioner.
It is pointed out that in the public interest litigation, these objections were raised and when the same were 5 examined by the Court, the very same petitioner has sought permission to withdraw the writ petition with liberty to raise grievance before the appropriate forum.
It is contended that no such permission to file a writ petition for grant of writ of quo warranto was granted by the Division Bench of this Court and in view of this, the writ petition is not maintainable.
It is reiterated that the respondent No.5 belongs to the reserved community of Scheduled Tribe and he was rightly promoted, giving him the benefit of reservation.
It is further contended that the enquiry with respect to the validity of caste certificate is to be conducted only and only by High Power Screening Committee and this Court or any other investigating agency is not required to make a probe in the said issue.
Nothing has been found, uptill not by the High Power Screening Committee where an enquiry is pending, in respect of certificate of Scheduled Tribe issued in favour of the respondent No.5 and, therefore, such a relief claimed in the writ petition is misconceived.
As far as the maintainability of the petition itself is concerned, it is contended that there is virtually no claim of grant of writ of quo warranto.
All such relief which the petitioner has claimed relates to the conducting of an enquiry with respect to the correctness of the certificate of Tribe issued in favour of the respondent No.5 which is not to be conducted by any other authority except the High Power Screening Committee as per the law laid down by the Apex Court.
Therefore, the entire petition being misconceived, deserves to be dismissed.
5: Heard learned counsel for the parties at length and perused the record.
6: It has to be examined whether this writ petition is maintainable before this Court or not.
Undisputedly, the petitioner has filed a Public Interest Litigation on the very same subject claiming the very same relief.
The order passed 6 in the aforesaid writ petition is placed on record as Annx.P/17.
Copy of the writ petition itself is placed on record as Annx.P/16.
The relief claimed in the said writ petition, if compared, to the relief claimed in the present petition indicate that the reliefs claimed in the present petition barring for the relief 7(E) are verbatim, the same.
Only because some order was passed during pendency of the said writ petition on 21.5.2009, the said order is also included in the present writ petition in the relief clause and its quashment has been sought.
It is also clear from perusal of the order sheets of the aforesaid writ petition as has been placed on record that the said writ petition was entertained, notices were earlier issued to the respondents and they have filed their return.
On 9.8.2010, after hearing learned counsel for the parties at length, the order was passed by the Division Bench in the following manner :- “In this writ petition which has been filed as public interest litigation, grievance of the petitioner is that State Government is giving undue shelter to respondent No.8 and he is continuing as Chief Engineer in Water Resource Department.
It is alleged that respondent No.8 has occupied the post by mis-representation and fraud and cannot be permitted to continue in office.
Learned counsel for the respondents have raised an objection with regard to maintainability of the instant writ petition as public interest litigation.
Learned counsel for the petitioner submitted that he be permitted to withdraw the instant writ petition with liberty to the petitioner to avail such other remedy as may be available to the petitioner in law.
Learned counsel for the petitioner submits that in the facts and circumstances of the case, the appropriate remedy for the petitioner is to seek writ of quo warranto.
In support of his submission, he has placed reliance on the decision of Supreme Court in Gulam Qadir versus Special Tribunal and otheRs.(2002) 1 SCC 33.
As prayed by learned counsel for the petitioner, the petition is dismissed as withdrawn with liberty as aforesaid.” The subsequent part was his submission only with respect to availability of a remedy of a writ of quo warranto, but this liberty was not specifically granted by the Division Bench. That being so, it cannot be said that the liberty was granted to the petitioner to file a writ petition seeking writ of quo warranto. Had it been so, the Division Bench would have said in the order itself while granting liberty to withdraw with permission to avail other remedies, to file a writ petition for grant of writ of quo warranto. That being so, prima facie it is clear that no liberty was granted to the petitioner to file a writ afresh seeking a writ of quo warranto against the respondent No.5. 8: Apart from the aforesaid, as has been contended by the petitioner, the selection of respondent No.5 was done and an order of appointment was issued in his respect where his surname was shown to be ‘Kashyap’. However, such a list produced by the petitioner in the writ petition as Annx.P/4 has been seriously disputed by the respondent No.5 and it has been contended that the right list has not been produced by the petitioner. In fact, in the list, manipulation was done in the description of respondent No.5. Though his surname was shown as ‘Kashyap’, but there were other descriptions such as “ A. Ja. Jaa. & Ae, but these words were deliberately omitted from the list produced by the petitioner with the writ petition. The select list has been obtained under Right to Information Act and has been placed on record as Annx.R5/1 by the respondent No.5. It is the allegation made by the respondent No.5 in the return that a manipulated document was filed by the petitioner to show as if the respondent No.5 was initially 8 selected as a General category candidate and not that of a Scheduled Tribe candidate only with an object to cause prejudice against the respondent No.5. Though detailed return has been filed and served on the petitioner, yet no rejoinder to such an allegation has been filed by the petitioner. These are the specific allegations made in paragraph 5 of the return of respondent No.5 which for the purposes of convenience are reproduced as under :- “The petition deserves to be dismissed on the ground that the petitioner has filed tempered copy of Annexure-P/4. In Annexure P-4, against the name of the answering respondent at Sr.No.69, the caste of the answering respondent has been intentionally suppressed in the photocopy. The answering respondent has obtained copy of Annexure-P/4 under Right to Information Act and from the said copy it is clear that against Sr.No.69 A. Ja. Ja. (ST) was also mentioned which was intentionally tempered in Annexure P-2. Copy of the Annexure P-4 received by the answering respondent under Right to Information is filed herewith as Annexure R-5/1. On this count alone, the present petition deserves to be dismissed with heavy cost.” It is the settled law that if something is alleged by one party and is not replied suitably by other side, the same is deemed to be admitted. This being so, there is no doubt left that the petitioner has tried to mislead this Court by placing reliance on a tampered document. If something is alleged in writing, a specific reply denying such allegation is to be submitted. That being so, it has to be held that document Annx.P/4 was a tampered document. 9: not coming to the fact whether any of the relief claimed by the petitioner will constitute issuance of a writ of quo warranto. The fiRs.relief which the petitioner has claimed is nothing but production of the service record of the respondent 9 No.5. The second relief claimed by the petitioner is direction to the Central Bureau of Investigation to conduct an enquiry with respect to the misdeeds of respondent No.5. The third relief claimed by the petitioner is for seeking a direction to the official respondents to take action against the respondent No.5 by initiating criminal prosecution and also to proceed departmentally against him. The fourth relief is a prohibitary order against the respondent No.5 from functioning as Chief Engineer. The fifth relief is for quashment of the order dated 21.5.2009 and the sixth relief is any other relief, order or direction as this Court feels proper. From these reliefs and in the entire allegations made in the petition, no case is made out to invoke power by this Court, to grant a writ of quo warranto against the respondent No.5. The writ of quo warranto can be issued only if it is found that a person has been appointed on a public post dehors the Rules or in violation of statutory provisions of law, as has been held by the Apex Court in the case of Hari Bansh Lal versus Sahodar Prasad Mehto and others [(2010) 9 SCC 655].Nothing is spelt out as to how the appointment of the respondent No.5 is dehors the Rules or against the statutory provisions of any of the law. In such circumstances, this Court would not exercise its extraordinary power of issuing a writ of quo warranto for removal of the respondent No.5 from the post. 10 : not coming to the question whether any direction could be issued by this Court for conducting any enquiry in the matter of certificate of Tribe issued in respect of petitioner. Much is said by learned counsel for the petitioner and heavy reliance is placed on two decisions of this Court. It is contended that the Division Bench of this Court has taken note of the provisions made in the Scheduled Tribe Order and has passed the detailed order holding inter alia that such persons who have been declared as Tribes and specifically mentioned 10 in the Scheduled Tribe Order issued by the President of India alone are to be treated as Scheduled Tribe within the area notified. However, on complete examination of the law laid down by the Division Bench in Radhaballabh Choudhary versus Union of India and others (1991 MPLJ 264 ., it is clear that the Division Bench was not dealing with whether ‘Majhi’ was the Scheduled Tribe within the whole of the State or not. ‘Majhi’ community was declared to be Scheduled Tribe in the Scheduled Tribe Order 1950 only in few districts of Madhya Pradesh. The case of Radhaballash Choudhary (supra) was considered in the light of the fact that whether any other sub- caste such as Kewat, Mallah, Dheemar, Nishad, Bhoi, Kahar, etc are to be treated as ‘Majhi’ or not. It was categorically held by the Division Bench of this Court that since these sub- castes were not written within the bracket after the Tribe ‘Majhi’ in the Scheduled Tribe Orderr, 1950, they were not to be treated as Scheduled Tribe like ‘Majhi’. The Division Bench was not dealing with the amendment made in the Scheduled Tribe Order 1950. It is seen from the Gazette Notification issued by the respondent-State that an amendment was made in the Scheduled Caste and Scheduled Tribe Order 1950 by passing an Act No.108 of 1976 and the said Act was published in the Gazette. ‘Majhi’ which was earlier treated to be Scheduled Tribe within few districts of the State of Madhya Pradesh was treated as Scheduled Tribe in whole of the State of M.P.as no districts were mentioned against the entry of Tribe ‘Majhi’ made in the amended order. Therefore, to say that respondent No.5, who was belonging to Gwalior district would not be entitled to claim benefit of reservation as Tribe in view of the unamended provisions of Scheduled Tribe Order of 1950, is wholly misconceived. The law as amended in respect of reservation of the caste was to be looked into on the date when the certificate was issued in respect of respondent No.5. Again the law is well settled in this respect. The Apex Court in the case of Ku. Madhuri Patil and another versus Additional Commissioner, Tribal Development & others(AIR 199.SC 94.has categorically prescribed that a Caste or Tribe certificate issued under the aforesaid order has to be examined by a High Power Screening Committee. Only such Committee would be empowered to look into the correctness of the issuance of such a certificate. This Court in the case of Vikas Jagdish Shipuriya and another versus State of Madhya Pradesh [2002 (3) MPLJ 417 .has categorically held that such a power is not available to any authority of the police or even the Court except after the enquiry conducted by the High Power Screening Committee, in terms of the decisions of Apex Court in the case of Ku. Madhuri Patil (supra).It is again to be seen that persons like petitioner cannot be said to have locus standi to call in question the certificate of Tribe issued to the respondent No.5 by way of filing such a writ petition before this Court, as has been held by this Court in the case of Sarvesh Patel versus State of M.P.and others [2012 (1) MPHT 37 .Thus, the stand taken by the petitioner cannot be accepted at all. No employer can take an action of removal of an employee only on the allegation that the certificate of Caste or Tribe issued in his or her favour is invalid. If such an action is taken without getting the Caste or Tribe verified from the Higher Power Screening Committee, again it would be an illegality as it would be in violation of the directives issued by the Apex Court in the case of Ku. Madhuri Patil (supra) as held by this Court in the case of Jitu Prasad versus Industrial Development Bank and another [2013 (1) MPLJ 428 .12 12 : Lastly, it is contended by learned counsel for the petitioner that in view of the law laid down by the Division Bench of this Court in the case of Radhaballabh Choudhary (supra).this Court would have no option but to issue a direction for taking an action against the respondent No.5 as admittedly, the Tribe certificate issued to the respondent No.5 is invalid. It is contended that the law laid down by the Division Bench is binding on this Court and, therefore, such a direction is necessary. The reason has already been assigned as to why the law laid down by the Division Bench of this Court in the case of Radhaballabh Choudhary (supra) would not be attracted in the present case. Here the issue is whether the respondent No.5, who belongs to Gwalior would be a member of ‘Majhi’ Tribe or not. The issue involved in the case of Radhaballabh Choudhary (supra) was whether the other sub- castes are also to be treated as ‘Majhi’ or not. As has been explained herein above, the Scheduled Tribe Order 1950 was amended in the year 1976 and was published in the Gazette in the year 1977. The districts which were earlier mentioned in the Scheduled Tribe Order 1950 have been omitted, therefore, in view of the provisions of Article 342 of the Constitution of India ‘Majhi’ is not declared to be the Scheduled Tribe within the whole of the State. It is trite that the law is to be amended in the same manner as the law is made. The Parliament has passed the Amending Act No.108 of 1976 and the same has been published in the Gazette after the ascent of the President of India. Therefore, the Schedule of Tribes has been amended and certain districts which were earlier mentioned in the entry ‘Majhi’ Tribe have been deleted, meaning thereby not the ‘Majhi’ has become a Scheduled Tribe for whole of the State. This being so, since there is a distinction in the claims made in the petition one which was decided by the Division Bench and one which is being decided by this order, it cannot be said that the law laid down by the Division Bench is violated in a case it 13 is held that ‘Majhi’ is Tribe for whole of the State. In fact, this was never the issue before the Division Bench not it has been dealt with or decided in context of Amending Act. The claim made in this respect by the learned counsel for the petitioner is wholly misconceived. 13 : In view of the discussions made herein above, there is no force in the writ petition, which deserves to be and is hereby dismissed. Normally this Court would not have awarded costs of this litigation, but in view of the finding recorded in para 8 of this order, the petitioner would pay costs of Rs.25,000/- which would be recovered as arrears of land revenue from him and would be credited in the Legal Aid Society of this Court to provide free legal aid to the real poor and needy litigants. (K.K.Trivedi) Judge A.Praj. 14 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR -Versus- . ORDER Post it for /07/2013 (K. K.Trivedi) Judge