Dinanath Bende. Vs. Madhya Pradesh Financial Corp. and ors. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] the appellant- university on march 1, 1996 issued an advertisement for filling up the posts of deputy registrar and assistant registrar by direct recruitment. the minimum qualification prescribed for appointment as assistant registrar was as under:-respondent no.1, who was an employee of the university, made applications both for the posts of deputy registrar and assistant registrar. respondents 4 and 5 were placed in the select list at ranks iv and v respectively. on the basis of the select list, prepared by the selection committee, respondent nos. 4 and 5 were appointed as assistant registrars. 5. the writ petition was opposed by the university. it was, accordingly, submitted that respondent no.1 was ineligible for appointment to the post of assistant.....1- challenging the order-dated 23.4.1999 passed by m.p. financial corporation, cancelling the appointment of the petitioner on the post of deputy manager (finance) and the order annexure p/9 issued by the sub divisional officer, saunsar, district chhindwara, holding that the petitioner belongs to 'koshti' community, which is not a schedule tribe community but falls in the category of other backward caste, petitioner has filed this writ petition.2- petitioner was working as accountant in m.p. agro industries corporation and was posted in chhindwara since 7.11.1986. according to the petitioner, he was appointed in a quota reserved for scheduled tribe candidate on the basis of a certificate issued by tehsildar, saunsar vide annexure p/1 holding that the petitioner belongs to 'halba'.....

Judgment:
1- Challenging the order-dated 23.4.1999 passed by M.P. Financial Corporation, cancelling the appointment of the petitioner on the post of Deputy Manager (Finance) and the order Annexure P/9 issued by the Sub Divisional Officer, Saunsar, District Chhindwara, holding that the petitioner belongs to 'Koshti' community, which is not a Schedule Tribe community but falls in the category of Other Backward Caste, petitioner has filed this writ petition.

2- Petitioner was working as Accountant in M.P. Agro Industries Corporation and was posted in Chhindwara since 7.11.1986. According to the petitioner, he was appointed in a quota reserved for Scheduled Tribe candidate on the basis of a certificate issued by Tehsildar, Saunsar vide Annexure P/1 holding that the petitioner belongs to 'Halba' community, which is a Scheduled Tribe community. Petitioner claims that even in the school leaving certificate Annexure P/2, he is shown to be a member belonging to the Halba community. Respondent No.1 issued an advertisement for filling up various posts in the category of SC/ST and one such post was that of Deputy Manager (Finance). Petitioner being qualified applied for the same and was selected for appointment and the offer of appointment Annexure P/5 was issued to him. However, as the petitioner did not have a properly issued certificate of his caste, he applied to the Collector, Chhindwara for issuance of a caste certificate and sought time from the respondents to join on the post of Deputy Manager. It is the case of the petitioner that there was some controversy with regard to his caste arose and it is claimed that a Division Bench of this Court has already decided the question with regard to 'Halba/Koshti' community being a scheduled tribe community vide Annexure P/6. It is the case of the petitioner that as the caste certificate was not being issued by the competent authority and as he was unable to join on the appointed post, Writ Petition No.5120/98 was filed by the petitioner, which was decided vide order- dated 30.10.98 Annexure P/8, wherein this Court directed the revenue authorities respondents 3 and 4 to conduct an enquiry expeditiously and take action. When nothing was done, petitioner filed Contempt Petition No.60/99 and during the pendency of this contempt petition, order - Annexure P/9 dated 23.4.1999 has been issued by which it is held that petitioner does not belong to 'Halba' community, he belongs to 'Koshti' community, which is not a Scheduled Tribe community, but comes in the category of Other Backward Caste and, therefore, petitioner is before this Court assailing the aforesaid action.

3- Placing reliance on an order passed by a Division Bench of this Court vide Annexure P/6, in Misc. Petition No.1456/1981 (Prabodh v. State of MP and others), petitioner tries to emphasize that 'Halba/Koshti' community is a Scheduled Tribe community and, therefore, the finding recorded by the SDO in Annexure P/9, on 23.4.99, is unsustainable. Learned counsel for the petitioner emphasized that before passing the order Annexure P/9, no proper enquiry was conducted and no opportunity of hearing was granted. It is stated that petitioner belongs to the Scheduled Tribe community and the action taken by the respondents for treating him to be a member belonging to the OBC category is unsustainable and, therefore, the same is illegal. Accordingly, contending that the action of the respondents in ignoring the case of the petitioner and the certificates issued vide Annexures P/1 and P/2 and cancelling his appointment is unsustainable. Challenge is also made to Annexure P/9, by contending that the enquiry is not properly conducted and opportunity of hearing and explanation is not granted to the petitioner.

4- Respondents have filed reply and it is pointed out by them that after orders were passed by this Court, in W.P.No.5120/1998, an enquiry was conducted by the competent authority in which petitioner was directed to participate, but the petitioner did not participate in the enquiry and, therefore, the impugned action is taken. Inviting my attention to a judgment of the Supreme Court in the case of Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar and others, 2008(9) SCC 54; and, a judgment by a Bench of this Court in the case of Domudas s/o Shyamadas Dhakate v. State of MP and others, 2008 (3) MPLJ 654, Shri S.S. Bisen, learned counsel for the State, submits that 'Halba' community comes within the category of Scheduled Tribe community, but the 'Koshti' community is not a Scheduled Tribe community, it comes in the category of OBC, as is held in the aforesaid two judgments and as the finding on enquiry recorded vide Annexure P/9 is to the effect that petitioner does not belong to the 'Halba' community, but is a member of the 'Koshti' community, which comes in the OBC category, it is stated that no case for interference is made out. As far as non-grant of opportunity to the petitioner is concerned, it is argued that inspite of opportunities being granted by the SDO, the petitioner did not appear and, therefore, the action was taken.

5- I have heard learned counsel for the parties and perused the records.

6- As far as the question with regard to a person belonging to the 'Koshti' community being a Scheduled Tribe community is concerned, the same is no more in dispute. Supreme Court, in the case of Raju Ramsing Vasave (supra) and a Bench of this Court, in the case of Domudas (supra), has laid down the principle that even though 'Halba' falls in the Scheduled Tribe category, but 'Koshti' does not fall in the Scheduled Tribe category and comes in the OBC category. That being so, the only question now warranting consideration is as to whether petitioner falls in the category of a person of the caste 'Halba', or he is only 'Koshti' and, therefore, not entitled to the protection available to a SC/ST candidate.

7- Petitioner in support of his contention to show that he belongs to the 'Halba' community has placed reliance on Annexures P/1, P/2 and P/3: certificates allegedly issued by the Tehsildar, the school leaving certificate; and, the certificate of Sant Kabir Halba Samaj Mandal. Annexure P/1 is a certificate issued by the Tehsildar and a perusal of this certificate indicates that it is not issued on the basis of any enquiry conducted by the Tehsildar. It is issued only on the basis of a certificate issued by the MLA of the local area and petitioner's own affidavit. The certificate is not based on any enquiry conducted by the revenue authorities and, therefore, cannot be relied upon for the purpose of determining the caste status of the petitioner. Similarly, Annexure P/2 and P/3 are also based on the statement of the petitioner and cannot be relied upon. When the caste certificate of the petitioner was not being issued and when he was not being granted appointment, in W.P.No.5120/98 filed by the petitioner, on 30.10.98 the order was passed by this Court, which is available as Annexure R/7. A perusal of this order indicates that this Court directed the competent authority to conduct an enquiry within 30 days and to decide the question of caste status of the petitioner. The order Annexure P/9 indicates that in pursuance to the order passed by this Court, in the said writ petition notices were issued to the petitioner, inspite of notice he did not appear and, therefore, the ex-parte proceedings were held and after enquiry from the village, from the revenue authorities and from the competent authorities of the area, finding report Annexure P/9 is issued to the effect that petitioner does not belong to 'Halba' community. Infact, in District Chhindwara 'Halba' community is not found and the finding recorded is that petitioner belongs to 'Koshti' community, which falls in the OBC category and, therefore, petitioner is not a Scheduled Tribe member. The aforesaid finding recorded vide Annexure P/9 is a finding of fact based on proper enquiry and inspite of notice when petitioner did not appear, the authorities have proceeded for deciding the issue in accordance to the directions issued by this Court. Petitioner except for contending that the order Annexure P/9 is issued without hearing the petitioner, is unable to demonstrate before this Court as to what is the illegality committed and how he claims to be a person belonging to the 'Halba' community. No evidence or material is adduced by the petitioner except the certificate Annexure P/1, to substantiate this contention.

8- In view of the above, once on an appropriate enquiry conducted by a competent authority the question is decided, and when opportunity was granted to the petitioner and when he failed to avail of the same, now this Court does not deem it appropriate to enter into the controversy afresh. Petitioner having failed to avail of the opportunity granted to him cannot now assail the order and finding recorded by the SDO, as contained in Annexure P/9.

9- The post in question was reserved for Scheduled Tribe category and as the petitioner is not a member of the Scheduled Tribe community, respondents have not committed any error in rejecting the claim of the petitioner.

10- Accordingly, finding no case for interference on the grounds raised, the petition is dismissed.