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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5905 OF 2006
WITH
CIVIL APPLICATION NO. 9245 OF 2009
SHRIDHAR MORESHWAR THAKUR
VERSUS
STATE OF MAHARASHTRA & OTHERS
...
Shri A.S.Golegaonkar, Advocate for the petitioner,
Shri D.V.Tele, AGP for respondents 1,3,4 & 5,
Shri R.P.Phatke, Advocate for respondent No.2 and
Shri K.C.Sant, Advocate for respondent No.7.
ig ...
CORAM : S.B.DESHMUKH & SHRIHARI P.DAVARE, JJ.
Dated : October 4, 2010
PER COURT :-
1. Heard respective counsel.
2. In the present Writ Petition, while issuing notices on
26.9.2006, this Court (Coram : P.V.Hardas & R.M.Savant, JJ.), had also
granted ad-interim relief in following terms :
“… In the meantime, no adverse action be taken against the
petitioner on the basis of the order / judgment of the
respondent Caste Scrutiny Committee till then. ”
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From time to time, the said petition was heard and ad-
interim relief was continued till today. In the meantime, respondent No.2
was directed to make available the original record for perusal of this
Court.
3. Petitioner had filed Civil Application No.9245 of 2009 with
following prayers :-
” (A) Grant Rule and allow this Civil Application.
(B) To direct the respondent No.6 & 7 i.e. College
authorities and University to declare result of the Petitioner
and final B.A.M.S. of May / June 2009, Examination against
the seat No.65319 and send the petitioner for completion ofinternship programme as well after completion of internship
programme college and authorities and University bedirected to issue B.A.M.S. Degree certificate and internship
completion certificate, pending hearing and final disposal of
this writ petition No.5905 of 2006.
(C) Any other just and equitable relief to which the
Petitioner found entitled be granted.”
Said Civil Application was also heard from time to time.
4. Perusal of the Writ Petition shows that social status claim of
the petitioner that he belongs to Thakur – a Scheduled Tribe was referred
to respondent No.2 committee on 3.12.2001. On 28.5.2003 enquiry was
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conducted. According to the petitioner no steps were taken by the
committee thereafter. The petitioner has further averred that petitioner
was constrained to file Writ Petition No.4699 of 2005 seeking direction
from this Court. This Court, after hearing learned counsel for respective
parties, passed an order on 26.7.2005 directing respondent No.2 to decide
the claim of the petitioner within three months. Petitioner was also
directed to appear before the committee on 18.8.2005. Accordingly, on
the said date, petitioner appeared before the committee. He was
informed that the copy of the vigilance report will be served upon him and
in due course of time he will be called for the personal interview. On
22.5.2006, copy of the vigilance report dated 28.5.2003 was served upon
the petitioner and his reply was sought for.
5. Shri Golegaonkar, learned Advocate submitted that on
5.6.2006, respondent No.2 committee sent a telegram and asked the
petitioner to appear before the committee for interview on 5.6.2006 at
11.00 a.m. According to the petitioner, this telegram was received by
him on 5.6.2006 itself at 3.20 p.m. and therefore, it was humanly
impossible for him to appear before the committee at 11.00 a.m. on that
day. According to the petitioner, on 6.6.2006, at 9.55 a.m., by way of an
abundant precaution, he sent a telegram to respondent No.2, narrating
this fact. At that time the committee was functioning at Nasik. According
to the learned counsel for the petitioner, on 19.6.2006, respondent
committee proceeded ex-parte against the petitioner and decided his
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claim by an ex-parte order. (Emphasis supplied).
6. Shri Golegaonkar, learned Advocate took us through the
various documents placed on record in support of the social status claim
of the petitioner, including the documents relating to petitioner’s great
grand-father, grand-father, cousin grand-father, father and uncle. He
also pointed out the order passed by this Court in Writ Petition No.4699 of
2005 (Exhibit “F”).
7.
From the judgment of the respondent committee, Shri
Golegaonkar, learned Advocate points out the findings of the committee,
which read as; ” … In view of the natural justice, the applicant was sent
a telegram by Scrutiny Committee whereby the applicant was asked to
remain present for personal hearing before the Scrutiny Committee on
5.6.2006. But the applicant did not appear for hearing on notified date.
Hence the Scrutiny Committee had left no alternative than to decide the
tribe claim of the applicant as exparty.”
8. Shri Phatke, learned Standing Counsel for respondent No.2
submits that in case of remand of the matter, time of six months would be
necessary for the committee.
9. Shri Golegaonkar, learned Advocate seeks ad-interim relief,
in view of the prayers made in the Civil Application.
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10. Grant of interim relief is an important aspect. The Supreme
Court so also this Court have set principles for grant of interim relief.
Ordinarily, triple test of prima facie case, balance of convenience and
irreparable loss that would be considered by the Court while granting or
refusing to grant the ad-interim / interim relief. According to learned
counsel Shri Golegaonkar, in the case on hand, hearing of the Writ Petition
can be adjourned by keeping it pending, however, ad-interim relief in
terms of prayer clause (B) needs to be granted in favour of the petitioner
directing respondents 6 and 7 to declare the result of the petitioner of
final B.A.M.S. examination and send the petitioner for completion of
internship, as well, after completion of internship, college and university
authorities need be directed to issue B.A.M.S. degree certificate and
internship completion certificate, pending hearing and final disposal of the
Writ Petition.
11. We have given anxious consideration to the submissions of
learned counsel Shri Golegaonkar. It is apposite at this stage to notice the
judgment of the Honourable Supreme Court in the case of Kalabharati
Advertising Vs. Hemant Vimalnath Narichania [JT 2010 (9) SC 382]. This
book was made available to learned counsel Shri Golegaonkar. He read
the judgment and submitted that the facts in the reported judgment are
different. There, in that case, the petition was withdrawn and in the case
on hand, according to him, the Scrutiny Committee has decided the social
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status claim of the petitioner and this Court has recorded a finding that
the decision of the committee is an ex-parte. In substance, he submitted
that ratio of the judgment is not applicable to the facts of the present
case.
12. We have noticed the facts, which are mentioned in the
reported judgment. There, in that case, a public interest litigation was
filed before this Court at Mumbai. Some interim orders were passed in
that Writ Petition. We have considered the entire judgment and facts
which were before the Honourable Supreme Court in the cited judgment.
In our opinion, the Honourable Supreme Court has considered its earlier
judgments, right from 1952, in the said judgment. These judgments have
been specifically noticed and mentioned in paragraph No.22. We
reproduce the said paragraph No.22 as under :-
” 22. It is a settled legal proposition that the forum of the
writ court cannot be used for the purpose of giving interim
relief as the only and the final relief to any litigant. If the
Court comes to the conclusion that the matter requires
adjudication by some other appropriate forum and relegatesthe said party to that forum, it should not grant any interim
relief in favour of such a litigant for an interregnum period
till the said party approaches the alternative forum and
obtains interim relief. (vide: State of Orissa v. Madan Gopal
Rungta, AIR 1952 SC 12; Amarsarjit Singh v. State of Punjab,
AIR 1962 SC 1305; State of Orissa v. Ram Chandra Dev, AIR
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7AIR 1966 SC 1441; and Premier Automobiles Ltd. v. Kamlakar
Shantaram Wadke & Ors., AIR 1975 SC 2238). ”
13. The social status claim / certificate was the issue, for the
first time, decided by the Honourable Supreme Court in it’s lead judgment
in the case of Madhuri Patil Vs. Additional Commissioner [(1994) 6 SCC
241]. Madhuri Patil was again before the Honourable Supreme Court at
second time. That judgment is reported in (1997) 5 SCC 437. The State of
Maharashtra, in view of the judgment of the Supreme Court in the case of
Madhuri Patil, came with the 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 and Maharashtra
S.T.Certificate Rules, 2003 (“Rules of 2003”). In view of the Rules of 2003,
social status claim by the citizen is being considered. It is not in dispute
that respondent No.2 committee is being established in view of the Rules
of 2003. It is further not in dispute that in the case on hand, social status
claim of the petitioner was referred to the committee on 3.12.2001. From
the date of this reference till the date of scrutiny committee’s judgment,
which is now challenged in this Writ Petition, some developments took
place, as referred to by us in the foregoing paragraphs. Today, after
hearing learned counsel for the parties, we are convinced that the
petitioner was not afforded an opportunity of being heard by respondent
No.2 committee. The date of interview was informed to the petitioner by
a telegram. We have considered the submissions of Shri Golegaonkar,
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learned Advocate in respect of date of receipt of the telegram and his
case that this telegram was received by him after the date and time
scheduled for the interview. The judgment of the committee also refers
that it is an ex-parte judgment. It is for these reasons, we are inclined to
quash and set aside the impugned judgment and order and remand the
matter back to the committee.
14. Now, the submission of Shri Golegaonkar, learned Advocate
for the petitioner that petition can be kept pending and interim relief in
terms of Civil Applications be granted is to be considered by us. According
to the petitioner, by way of ad-interim relief, College and University
needs to be directed for declaration of the result of the petitioner for
B.A.M.S. course. By way of interim relief, petitioner also seeks direction
for entry and completion of internship. It is a matter of common
knowledge that after declaration of result of B.A.M.S. examination, for
which the admission was sought against reservation, further interim relief
for completion of the internship, gives full stop at the graduation level in
favour of the petitioner. Thereafter, the petitioner may seek registration
in accordance with the Maharashtra Medical Practitioners’ Act and may
practice accordingly as a Doctor / Medical Practitioner, at least within the
limits of the State of Maharashtra, in accordance with the provisions of
law. In that contingency, he is bound to serve either with the State
Government or other institutions if appointed and/or he is bound to
practice as a Medical practitioner. After remand of the matter, the
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Committee may decide the issue i.e. social status claim of the petitioner
either way, meaning thereby, either accepting the case of the petitioner
or rejecting the social status claim of the petitioner and thus his degree
certificate and registration as medical practitioner attains the finality.
However, if the social status claim by the petitioner turns out to be
spurious by the committee, the petitioner in all probabilities would
challenge the said order by filing Writ Petition in this Court. If he wants
to pursue further education i.e. post graduation or desires to seek an
employment and feels that rejection of social status claim is a barrier, he
would seek interim relief again before this Court. In our opinion, the
moment this Court is handing down this order and remanding the matter
back to the committee, is loosing the jurisdiction over the issue. In these
facts and circumstances, in our opinion, ratio of the judgment of the
Supreme Court in the case of Kalabharati (supra) squarely applies to the
case on hand. We are not inclined to grant ad-interim relief or interim
relief in the Civil Application for all these reasons.
15. In the result, Writ Petition is partly allowed. Judgment and
order passed by respondent No.2 Committee dated 19.6.2006 stands
quashed and set aside. The matter is remanded back to respondent No.2
Committee to decide the same, after affording an opportunity of being
heard to the petitioner. We direct the petitioner to remain present
before the Committee, now at Nandurbar, on 25.10.2010 at 11.00 am.
The Committee shall decide the claim of the petitioner in accordance with
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law on/or before 27.12.2010. Ad-interim relief, granted by this Court on
26.9.2006 stands vacated.
We make it clear that we have not expressed any opinion on
merits in this Writ Petition.
In view of the order passed in the main Writ Petition, Civil
Application stands rejected.
No order as to costs, both, in Writ Petition so also Civil
Application.
(SHRIHARI P.DAVARE, J.) (S.B.DESHMUKH, J.)
...
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