Sau Kusum Vs. State of
Maharashtra & Ors. [2008] INSC 2185 (16 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7313 OF 2008 [Arising
out of SLP (Civil) No. 25151 of 2005] Sau Kusum ...Appellant Versus State of
Maharashtra & Ors. ...Respondents
S.B. SINHA, J :
1.
Leave
granted.
2.
Appellant
claims to be belonging to the carpenter caste. According to her, she hails from
the Vidarbha area which is the border area of the State of Madhya Pradesh and
Maharashtra. Carpenters in the State of Madhya Pradesh are known as `Badhai',
whereas in the State of Maharashtra, they 2 are known as `Sutar'. Their
occupation is said to be the same. According to appellant, in both the States,
people belonging to the said caste are entitled to be considered as Other
Backward Class (OBC).
3.
It
is not known when the family of the appellant migrated from the State of Madhya
Pradesh to the State of Maharashtra. Inter alia on the premise that she belongs
to OBC, she contested an election for a Member of Panchayat in Village
Chincholi. The post of Sarpanch was reserved for the OBC category candidates.
She was elected in the said category. An application, however, was filed before
the Caste Scrutiny Committee by respondent No. 4 contending that she does not
belong to the OBC category and, therefore, could not have been elected.
4.
The
Caste Scrutiny Committee relying on or on the basis of a purported circular
letter issued by the State of Maharashtra dated 21.08.1996 refused to go into
the said question holding that the appellant is not the daughter of Gulabrao
Deulkar but was the daughter of Marotrao Chindhuji Shingnapure. Marotrao
Chindhuji Shingnapure was a resident of Madhya Pradesh and as such she is not a
resident of Maharashtra prior to 1967. It was, therefore, held:
3 "As per the
directions given in Govt. Circular dated 21st August 1996, those candidates who
are not residents of Maharashtra, the caste claim should not be verified.
Therefore, Smt. Kusum Akotkar is not the resident of Maharashtra prior to 1967;
her caste claim cannot be verified. Hence this decision. The candidate has
submitted the documents in respect of her residence are doubtful. Therefore the
Committee has decided not to verify her caste claim."
5.
Aggrieved
by and dissatisfied therewith, she filed a writ petition before the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur. By an interim order dated
1.04.2005, a Division Bench of the said Court, directed:
"The petitioner
has impugned the order dated 29- 12-2004 passed by respondent No. 2 - Social
Welfare Department, which held that as the petitioner was born on 21-7-1962 in
Chhindwara District and being not a resident of Maharashtra prior to 1967, the
caste claim could not be verified.
In the course of
hearing, we are of the opinion that respondent No. 2, rather than refusing to
examine the caste claim of the petitioner on the ground that she was not the
resident of Maharashtra prior to 1967, should scrutinize the caste claim of the
petitioner and give its finding.
In so far as the
issue of the petitioner being a 4 resident of Maharashtra prior to 1967 or not
is concerned, the same can thereafter be considered by this Court.
We, therefore, direct
the petitioner to appear before respondent No. 2 on 25-4-2005 at 11 a.m. and
extend all possible co-operation to respondent No. 2 in getting her caste claim
examined. Respondent No. 2 to take a decision in the matter within a period of
six weeks.
The petition be
listed before this Court for further orders on 20-6-2005."
6.
Pursuant
thereto or in furtherance of the said direction, the Caste Scrutiny Committee
considered the matter afresh. By an order dated 5.07.2005, it was held:
"The school
certificate of Smt. Kusum Vithalrao Akotkar (Miss Kusum Gulabrao Deulkar) as
well as the certificate of Sarpanch, Gram Panchayat, Jam, Dist. Chhindwara
(Madhya Pradesh) shows that the caste of Shri Marotrao Chindhbaji Singnapure is
Badhai (in Maharashtra, Sutar);
hence the Committee
maintains its decision dt. 29.12.2004 and further holds that the caste of Smt.
Kusum Vithalrao Akotkar is Sutar."
7.
The
said order of the Caste Scrutiny Committee was placed before the High Court,
and by reason of the impugned judgment the writ petition was dismissed,
opining:
"We have considered
the contentions canvassed by the respective counsel. In the instant case, there
is no reason for us to disbelieve the evidence collected by the Vigilance Cell,
which is an independent agency meant for the purposes of collecting the
documentary as well as other evidence in order to find out whether the person
really belongs to caste which he or she claims, as well as the place from where
such person belongs."
8.
Before
the Division Bench, reference was made to a decision of this Court in Union of
India and others v. Dudh Nath Prasad [AIR 2000 SC 525 : (2000) 2 SCC 20], which
according to the Division Bench was of no assistance to the appellant in view
of the peculiar facts obtaining therein.
9.
Dr.
Rajeev B. Masodkar, learned counsel appearing on behalf of the appellant, would
submit that the High Court committed a serious error insofar as it failed to
take into consideration that even the Caste Scrutiny Committee opined that the
appellant is a `Sutar', which comes within the 6 purview of the OBC in the
State of Maharashtra and, thus, the said decision could not have been set aside
by the High Court and that too in the writ petition filed by the appellant.
The learned counsel
would contend in that view of the matter the High Court must be held to have committed
a serious error in refusing to follow the decision of this Court in Dudh Nath
Prasad (supra), wherein this Court held:
"17. The word
"reside" came to be considered by this Court in Jagir Kaur v. Jaswant
Singh 1 in the context of the jurisdiction of the Magistrate under Section 488
of the Code of Criminal Procedure, 1898, for entertaining the petition of a
wife for maintenance. After considering the meaning of the word
"reside" in Oxford Dictionary, which we have already set out above,
the Court observed as under:
"The said
meaning, therefore, takes in both a permanent dwelling as well as a temporary
living in a place. It is, therefore, capable of different meanings, including
domicile in the strictest and the most technical sense and a temporary residence.
Whichever meaning is given to it, one thing is obvious and it is that it does
not include a casual stay in, or a flying visit to, a particular place. In
short, the meaning of the word would, in the ultimate analysis, depend upon the
context and the purpose of a particular statute. In this case the context and
purpose of the present statute certainly do not compel the importation of the
concept of domicile in its technical sense." (emphasis supplied) 7 ***
*** ***
29. We have already
explained the meanings of the words "ordinarily resident" and have
found that notwithstanding that the parents of the respondent lived at one time
in a village in District Siwan in the State of Bihar and that they owned some
property there also, they had shifted to the State of West Bengal long ago and
had been living there since then. For all intents and purposes, therefore, they
shall be treated to be "ordinarily residing" in the State of West
Bengal. For the State of West Bengal, the President, in exercise of his powers
under Article 341(1) read with Article 366(24) had already declared the
"Nuniya" caste as a Scheduled Caste and, therefore, the respondent
was rightly treated to be a Scheduled Caste candidate and was rightly appointed
against a reserved vacancy, after being declared successful at the examination
held by UPSC for the Indian Administrative and Allied Services in 1966."
It was urged that
even if appellant is said to have migrated from Chhindwara to Nagpur as was
contended by the complainant having regard to the fact that a part of that area
was transferred to the State of Maharashtra upon reorganization, the principles
laid down by this Court in Sudhakar Vithal Kumbhare v. State of Maharashtra and
Others [(2004) 9 SCC 481] should have been applied.
10.
In
Sudhakar Vithal (supra), this Court took into consideration the peculiar
situation obtaining that the border areas of a State where a part of the
territory is transferred and a part of the territory remained may be inhabited
by the people of same group having same traits and culture, holding:
"5. But the
question which arises for consideration herein appears to have not been raised
in any other case. It is not in dispute that the Scheduled Castes and Scheduled
Tribes have suffered disadvantages and been denied facilities for development
and growth in several States.
They require
protective preferences, facilities and benefits inter alia in the form of
reservation, so as to enable them to compete on equal terms with the more
advantaged and developed sections of the community. The question is as to
whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands
recognized both in the State of Madhya Pradesh as well as in the State of
Maharashtra having their origin in Chhindwara region, a part of which, on
States' reorganisation, has come to the State of Maharashtra, was entitled to
the benefit of reservation. It is one thing to say that the expression "in
relation to that State"
occurring in Article
342 of the Constitution of India should be given an effective or proper meaning
so as to exclude the possibility that a tribe which has been included as a
Scheduled Tribe in one State after consultation with the Governor for the
purpose of the Constitution may not get the same benefit in another State whose
Governor has not been consulted; but it is another thing to say that when an
area is dominated by members of the same tribe belonging to the same region
which has been bifurcated, the members 9 would not continue to get the same
benefit when the said tribe is recognized in both the States. In other words,
the question that is required to be posed and answered would be as to whether
the members of a Scheduled Tribe belonging to one region would continue to get
the same benefits despite bifurcation thereof in terms of the States
Reorganisation Act. With a view to find out as to whether any particular area
of the country was required to be given protection is a matter which requires
detailed investigation having regard to the fact that both Pandhurna in the
district of Chhindwara and a part of the area of Chandrapur at one point of
time belonged to the same region and under the Constitution (Scheduled Tribes)
Order, 1950 as it originally stood the tribe Halba/Halbi of that region may be
given the same protection. In a case of this nature the degree of disadvantages
of various elements which constitute the input for specification may not be
totally different and the State of Maharashtra even after reorganisation might
have agreed for inclusion of the said tribe Halba/Halbi as a Scheduled tribe in
the State of Maharashtra having regard to the said fact in mind.
7. In view of fact
that the appellant's case was not referred to the appropriate Committee, the
judgment and order under challenge deserves to be set aside. It will be open to
the Maharashtra State Electricity Board to refer the matter to the Scrutiny
Committee for verifying the eligibility of the appellant. We direct that the
appellant shall be reinstated forthwith as Assistant Engineer and shall continue
to hold the said post till the matter is decided by the Committee. The appeal
is allowed on the aforementioned terms. There shall be no order as to
costs."
11.
In
that view of the matter, if it is a fact that the people belonging to the said
Caste are recognized as OBC, both in Madhya Pradesh and Maharashtra being
Badhai in the former and Sutar in the latter and keeping in view of the fact
that the Caste Scrutiny Committee has found her to be belonging to the Sutar
caste, we are of the opinion that the matter requires reconsideration.
It may be noticed
that the Bombay High Court also in Hitesh Dasiram Murkute v. State of
Maharashtra and others [2007 (5) Mah LJ 454] opined:
"(iv) Date too
is equally relevant in order to identify the person as belonging to caste
included in the schedule on the date of such inclusion with reference to
locality identified in the schedule.
Therefore, a person
claiming benefit would have to show that his ancestors hailed on the date of
inclusion of caste in schedule from a place identified in the schedule. In
other words, the relevant date is not date of migration but date of inclusion
of caste or tribe in the schedule."
12.
There
is nothing on record to show as to when she had migrated to the State of
Maharashtra. If admittedly she had migrated to the State of 11 Maharashtra
before 1967, she would be considered to be a permanent resident of Maharashtra.
13.
Dr.
Masodkar states that the appellant had been residing in Maharashtra for a long
time and, thus, there is no reason as to why she should not be held to be a
permanent resident.
14.
It
is one thing to say that she, being not a permanent resident of the State,
would not be entitled to contest any election. If she is to be conferred the
said status, she will be entitled to all the benefits to which members of the
said caste are entitled to but would also be entitled to other benefits i.e.
not the benefit to contest in the reserved categories of the election of the
panchayat alone but other benefits as well.
15.
We,
therefore, are of the opinion that interest of justice would be sub-served if
the impugned orders are set aside and the matter is directed to be considered
afresh by the Caste Scrutiny Committee wherein the appellant may be permitted
to adduce evidence inter alia on the question as to when she had migrated. We
may further observe that if the appellant is aggrieved 12 by the finding of
the Caste Scrutiny Committee in regard to her parentage, she would undoubtedly
be entitled to file a suit for an appropriate declaration.
16.
For
the reasons aforementioned, the appeal is allowed to the aforementioned extent.
But, in the facts and circumstances of the case, there shall be no order as to
costs.
...............................J.
[S.B. Sinha]
................................J.
[Cyriac Joseph]
New
Delhi;
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