The effect of stay of operation of the judgment does not mean that the judgement has been completely effaced - (See Shri Chamundi Mopeds vs. South India Churches Trust Association, 1992 (3) SCC 1). The judgment would still hold the field. Indeed, the judgment could not have been given effect to for a period of weeks, but on expiry of 12 weeks and the judgment having attained finality, the same came into force with full effect at least from 17.12.2010. Since that judgment was never challenged by the State Government and in fact has attained finality, in law,
APPELLATE SIDE
WRIT PETITION NO.10194 OF 2010
Smt. Chaitrali Prakash Borhade v Rajendra
Reserved on :- 11th May, 2012
Pronounced on :- 11th June, 2012
JUDGMENT (PER A.M. KHANWILKAR, J.):
1. We propose to dispose of these Writ Petitions together by this common judgment, as it involve common issues. 3 of 38
2. Rule has already been granted in Writ Petition No. 6638/2011.
3. Writ Petition No. 10194/2010 was ordered to be heard along with companion Writ Petition, to be taken up for final disposal. Accordingly, Rule is granted even in this Writ Petition. Counsel appearing for the respective Respondents waive service. By consent, taken up for final disposal forthwith.
4. In the first Writ petition, filed under Article 226 of the Constitution of India, the Petitioner therein, who belongs to "Parit" caste, asserts that she had contested election to the office of Municipal Councillor in the General Municipal Election 2010 of Kalyan Dombivali Municipal Corporation from Ward No. 30, Karnik Road, Kalyan, which was reserved for Backward Class, as official nominee of "Indian National Congress". She was defeated by a narrow margin of 410 votes by Respondent No. 1 Mr. Rajendra Jaywant Dewalekar (for short referred to as 'Dewalekar'). He had contested the said election as official nominee of "Shivsena Party", claiming to be belonging to Vaishya Wani Caste. The said elections were notified vide election programme dated 6 th October, 2010. As per the said election programme, the nominations were 4 of 38
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to be filed by the candidates, before 13 th October, 2010. The election results were notified on 3 rd November, 2010.
5. According to the Petitioner in the first Petition, the said Dewalekar could not have participated in the said election against the reserved seat for Backward Class. Inasmuch as, the Caste Vaishya Wani, to which Dewalekar belonged, was considered as Other Backward Class (for short "OBC") since year 1989. But, consequent to the decision of this Court, on 1 st October, 2010 in Writ Petition No. 1148/2010 in the case of Vishwanath Pandurang Mahadeshwar, (2011) 1 Mh. L. J. 310, Caste Vaishya Wani, could no longer be treated as OBC. In that view of the matter, said Dewalekar could not have filed his nomination pursuant to the election programme, against the reserved seat, on 13 th October, 2010. The Petitioner asserts that she has already challenged the election of Dewalekar by filing Election Petition on 30 th November, 2010. In the said Election Petition, she has asked for further relief of declaring her to be duly elected, considering the fact that she secured second highest votes during the said election. The said election dispute is still pending before the concerned Court. The Petitioner, however, has filed this Petition for issuance of Writ in 5 of 38
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nature of quo-warranto or any other appropriate writ and to declare the election of Dewalekar to the office of Municipal Councillor of Kalyan Dombivali Municipal Corporation from Ward No. 30, reserved for the Backward Class, held in October, 2010, as invalid and illegal and that he is not entitled to hold the said office.
6. It is noticed that against the decision of this Court dated 1st October, 2010 in case of Mahadeshwar (supra), a Special Leave Petition was filed before the Apex Court. That came to be withdrawn on 4th February, 2011. In other words, the decision in Mahadeshwar's case has attained finality. The State Government, thereafter, issued Government Resolution dated 19th July, 2011, whereby, protection has been granted to persons belonging to the caste "Vaishya Wani" and "Kulwant Wani", appointed against posts reserved for OBC in Government/Semi Government services, by treating their appointments having been made from open categories, from the date of their appointments and to be shown on point of open categories in Roster. The said Resolution further provides that the persons belonging to the said Caste "Vaishya Wani" and "Kulwant Wani", elected on seats reserved for Backward Class in Local Self Government will not come to an end due to 6 of 38
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change in Caste Category. The said Government Resolution further provides that, general benefits or concessions already availed by persons belonging to "Vaishya Wani" and "Kulwant Wani, as Other Backward Class, from year 1989, should not be taken away with retrospective effect. This Resolution was issued during the pendency of the first Writ Petition. As a result, the Petitioner in first Writ Petition, by amending her Writ Petition, has challenged the said Government Resolution as illegal, invalid, null and void and/or violative of the judgment of this court dated 1 st October, 2010 in the case of Mahadeshwar. The said Petitioner has asked for further relief of quashing and cancelling the Caste Certificate and the Caste Validity Certificate issued to Respondent No. 1 (Dewalekar). Further, to recover all the benefits enjoyed by Dewalekar as Municipal Councillor from Ward No. 30, by misusing the said caste certificate.
7. The second Writ Petition, bearing Writ Petition No. 6638/2011, has been filed by a Society registered under the provisions of Societies Registration Act, 1860 and Bombay Public Trust Act, 1950. The said Petitioners assert that the Society has been established and registered for Public Charitable objectives, 7 of 38
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welfare of women including to provide legal help and legal awareness. Even these Petitioners have claimed identical reliefs as in the first Petition.
8. In both these petitions, the grievance is that, after the decision in Mahadeshwar's case (supra), persons belonging to "Vaishya Wani" or "Kulwant Wani" could no longer claim benefit as belonging to Other Backward Classes. Inasmuch as, with the quashing and setting aside of the relevant Government Resolutions/ Circular/Communications, in law, the entry effected in the list of Other Backward Classes, to include Vaishya Wani and Kulwant Wani, became non-est. For, the Government Resolutions/Circular/Communications having been held to be unconstitutional were void ab initio. As a result, the said Dewalekar could not have contested the elections against the reserved seat for OBC even though he belongs to Vaishya Wani community. According to the petitioners in both these petitions, the Government Resolution dated 19.7.2011 is violative of Article 14 r/w Articles 15(4) and 16(4) of the Constitution of India. The same is arbitrary, irrational and unjust and fraud on Constitution. It is on the face of it contemptuous and issued with malafide intention to 8 of 38
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validate an invalid action and, in particular, to validate the Government Resolutions which have already been struck down in Mahadeshwar's case. It is stated that the said Government Resolution is on the face of it not in consonance with the judgment of this Court in Mahadeshwar's case and in fact, is an attempt to undermine the said decision. As per the said decision, the State Government was given option to take appropriate measures as may be advised with a view to protect the interest of persons belonging to the said caste who had taken benefit of reservation meant for Other Backward Classes. Indeed, the State Government was expected to take corrective measures by following appropriate procedure for validation by introducing law in that behalf and certainly not by issuing Government Resolution. At any rate, the State Government could not extend protection to persons belonging to the said caste i.e. Vaishya Wani and Kulwant Wani after the decision in Mahadeshwar's case dated 1.10.2010. As a matter of fact, on account of the said decision which has attained finality and has been accepted even by the State Government, the consequence is that the Government Resolutions/ Circular/ Communications which have been quashed and set aside by the said decision will have to be treated as void ab initio and having no 9 of 38
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force from its inception, being unconstitutional. According to the petitioners, the language of the impugned Government Resolution dated 19.7.2011 suggests that the benefit is extended to persons belonging to Vaishya Wani and Kulwant Wani even beyond 1.10.2010 in the guise of validation of the benefits or concessions availed by them. In both these petitions, it is alleged that the said Dewalekar has usurped the independent substantive public office of Municipal Councillor which was reserved for Other Backward Class - even though he could not have been treated as belonging to OBC on and after 1.10.2010 consequent to the decision in Mahadeshwar's case. According to the petitioners, Dewalekar has knowingly misused and misinformed the Returning Officer by falsely claiming to be belonging to OBC and contested the election against the reserved seat held in October 2010. The Returning Officer could not have accepted the candidature of the said Dewalekar as belonging to OBC against the reserved seat. Further, the State Government could not have issued the Government Resolution dated 19 th July, 2011 to validate the elections of candidates belonging to Vaishya Wani and Kulwant Wani caste who had contested after 1.10.2010 as belonging to OBC.
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9. The Respondents in their respective petitions have opposed the petitions mainly on the argument that the petitioners have alternative and efficacious remedy by way of election dispute. This Court should be loath in entertaining Writ Petition under Article 226 of the Constitution of India in respect of election to Municipal Councillor against the reserved seat. There is constitutional bar in interfering with elections to municipalities by virtue of Article 243 ZG(b) of the Constitution of India. Further, question of issuing writ of Quo Warranto does not arise. The respondents also contend that the Government Resolution dated 19.7.2011 has been justly issued by the State Government and that the State Government was competent to issue such resolution. The respondents have placed emphasis on paragraph 52 of the decision in Mahadeshwar's case. As a result, the election of Dewalekar cannot be reopened as it has been validated. It is also contended by the Counsel for Dewalekar that it is indisputable that the decision in Mahadeshwar's case was kept in abeyance for a period of 12 weeks from the date of pronouncement. That can be discerned from paragraph 57 of the judgement which records that the judgement shall not be given effect to for a period of 12 weeks from the date of its pronouncement. In that view of the matter, the 11 of 38
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judgment would come into force only after the expiry of 12 weeks period. But, in the meantime, Dewalekar had already submitted his candidature for election as Municipal Councillor for Ward No.30 to be held in October, 2010. He was declared elected on 3.11.2010 before the stay of the judgment in Mahadeshwar's came to end. Therefore, Dewalekar could continue to hold the office of Municipal Councillor even though the caste Vaishya Wani was no longer to be treated as belonging to OBC. At the end, the Government Pleader contended that after the decision in Mahadeshwar's case, the State Government not only issued the impugned Government Resolution dated 19.7.2011 but have also taken other steps. In that, the Social Justice and Special Assistance Department of the State Government has forwarded the proposal to the Backward Class Commission for reference and for submission of fresh report, as to whether the caste Vaishya Wani can be included in the category of OBC. We were informed that the Backward Class Commission has already deputed its members to make enquiry. After conducting survey, the Commission would submit its report to the State Government and further suitable decision would be taken by the State Government. On the above argument, the respondents have prayed for dismissal of both these petitions. 12 of 38
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10. We shall first advert to preliminary objection raised by the Respondents about the maintainability of this Petition. For answering this objection, we may have to bear in mind the reliefs claimed in these Petitions. One of the relief claimed is for quashing and setting aside the Government Resolution dated 19 th July, 2011. The other is of quashing and setting aside the Caste Certificate and Caste Validity Certificate issued in favour of Dewalekar. Those reliefs cannot be considered in the Election Petition. So long as the said Government Resolution operates, election of Dewalekar cannot be questioned much-less successfully. For, even if the concerned Court were to find that the caste certificate and the caste validity certificate, declaring Dewalekar as belonging to OBC category, be treated as non-est, the purport of the impugned Government Resolution would come to the aid of Dewalekar. In other words, the Petitioner has no other alternative efficacious remedy except to approach this Court by way of Writ Petition under Article 226 of the Constitution of India for challenging the Government Resolution dated 19 th July, 2011. Indeed, the Petitioner in the first Petition has asked for further relief of invalidating the election of Dewalekar and for declaring the said Writ Petitioner as duly elected. Whether that relief should be 13 of 38
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granted or otherwise will be considered a little later. Only if the said reliefs were to be considered or granted, the preliminary objection regarding constitutional bar to interfere with election, in terms of Article 243 ZG (b) of the Constitution of India or that the contesting candidate and the voters of the constituency, have alternative remedy by way of Election Petition may arise for consideration.
11. Accordingly, we now proceed to examine the foremost question that arises for consideration, on merits. To wit, what is the effect of the decision in Mahadeshwar's case? In that case, the Scrutiny Committee had invalidated the caste claim of the Petitioner therein. As a result thereof, the Petitioner was required to vacate the office of Municipal Corporator. The Petitioner therein had claimed that he belonged to caste Vaishya Wani, which was notified as OBC category. The Caste Scrutiny Committee, however, held that the Petitioner was unable to establish the fact that he belonged to Vaishya Wani caste. Instead, it found that the oldest documents, which had probative value, indicated that he belonged to caste Wani. In this backdrop, one of the question that arose for consideration was, whether caste Vaishya Wani or Wani 14 of 38
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are synonyms and further, whether those castes were castes or sub-castes covered under entry 190 of Government Resolution dated 12th October, 1976. In the context of the challenge, the Court was required to examine the efficacy of Government Resolutions dated 9th August, 1995 and 21st August, 1996, Government Circular dated 20 th June, 2008 and Communications from the department dated 27 th April, 1989 and 18th October, 1998. The Court held that inclusion of "Vaishya Wani" and "Kulwant Wani" as OBC along with "Kathar", "Katharwani and Kantharwani (except "Lingayatwani" and "Ladwani")" was without following necessary procedure as prescribed in the decision of the Apex Court in Indira Sawhney's case. Thus, the inclusion of "Vaishya Wani" and "Kulwant Wani" in entry 190 of the List of OBC Category was held to be nullity and unconstitutional. It is not in dispute that the said decision has attained finality.
12. The effect of striking down the relevant Government Resolutions/Circular/Communications, which purported to include Vaishya Wani and Kulwant Wani in entry 190 of the List of the OBC Category, in law, is that, the said Government Resolutions/Circular/Communications had never existed at all for 15 of 38
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all purposes and thus the caste Vaishya Wani and Kulwant Wani did not belong to OBC at any point of time. For, the striking down of the Government Resolutions/Circular/ Communications on the ground that the same were unconstitutional and nullity in the eye of law, it would follow that the same will have to be treated as still born or non-est. It may be useful to refer to the principle underlying the decisions in case of Behram Khurshid vs. Bombay State AIR 1955 SC 123, Bhiaji Narain Dhakras vs. State of MP AIR 1995 SC 781, Deepchand vs. State of U. P. AIR 1959 SC 648 and State of Gujarat vs. Shree Ambica Mills Ltd. AIR 1974 SC 1300.
13. The concomitant, is that, the caste certificates and caste validity certificates issued by the concerned authorities declaring the persons belonging to caste Vaishya Wani and Kulwant Wani as OBC Category, will automatically become nullity and non-est for all purposes. The said caste certificates and caste validity certificates issued by the concerned authorities would be then simpliciter certificates declaring that the incumbent belongs to caste Vaishya Wani or Kulwant Wani as the case may be, but not covered under the OBC category. That would be irrespective of whether the certificate has been issued prior to 1 st October, 2010 or 16 of 38
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thereafter. So long as the State Government, by following necessary procedure, does not notify the inclusion of caste Vaishya Wani or Kulwant Wani as belonging to OBC or any other reserved category, the caste certificate or caste validity certificate possessed by persons belonging to Vaishya Wani or Kulwant Wani, as the case may be, will be of no avail to the concerned persons much less to claim benefit against reserved seat/post in any Organisation/Institution.
14. A priori, the caste certificate, as also the caste validity certificate, issued in favour of Dewalekar by the concerned Authorities, on the basis of inclusion of caste Vaishya Wani in entry 190 at the relevant time, will have to be treated as non-est in the eye of law, from its inception, for all purposes. No doubt, the caste certificate in favour of Dewalekar is issued on 13 th May, 2005 and the caste validity certificate on 9th September, 2010 by the concerned Authorities. At the relevant time, caste Vaishya Wani was recognised as OBC pursuant to the Government Resolutions issued from time to time, which have now been held to be issued without authority of law by the State Government. Therefore, the said caste certificate and caste validity certificate respectively, 17 of 38
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issued in favour of Dewalekar could be of no utility much-less germane for contesting the election to the post of Municipal Councillor against the reserved seat for OBC, after 1 st of October, 2010. The nomination form supported by such certificates was, therefore, not a valid nomination.
15. The question is: whether the stay to the judgment in Mahadeshwar's case granted on the same day when the judgment was pronounced, as recorded in paragraph 57 thereof, will make any difference? Para 57 of the decision in Mahadeshwar's case reads thus:
"57. At this stage, Counsel for the Petitioner as well as the Government Pleader prays for stay of operation of this Judgment. We have no
difficulty in accepting this request. The Judgment shall not be given effect to for a period of twelve weeks from today. We make it clear that this interim arrangement will not enure to the benefit of the Petitioner."
The effect of stay of operation of the judgment does not mean that the judgement has been completely effaced - (See Shri Chamundi Mopeds vs. South India Churches Trust Association, 1992 (3) SCC 1). The judgment would still hold the field. Indeed, the judgment could not have been given effect to for a period of 12 18 of 38
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weeks, but on expiry of 12 weeks and the judgment having attained finality, the same came into force with full effect at least from 17.12.2010. Since that judgment was never challenged by the State Government and in fact has attained finality, in law, the reservation for Vaishya Wani or Kulwant Wani caste as belonging to OBC category never existed from its inception and the caste certificate or caste validity certificate issued by the concerned authorities in favour of persons belonging to that caste as OBC are bound to be treated as non-est in the eye of law irrespective of the date of its issuance. Indeed, the Returning Officer cannot be blamed for entertaining the nomination form of Dewalekar which was backed by caste certificate and caste validity certificate disclosing that he belonged to OBC. But, after 17.12.2010, the declaration in the said certificates that Dewalekar belonged to OBC category, ceases to exist; and, in law, it is non-est from its inception. It would necessarily follow that Dewalekar ceased to have a valid caste certificate, caste validity certificate as belonging to OBC. In that event, he ought to and deemed to have vacated the office of Municipal Councillor forthwith. Even though, Dewalekar may be justified in contending that he participated in the election conducted in October, 2010 in good faith, however, he did 19 of 38
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so with full knowledge of the said judgment and the consequences flowing therefrom. In law, his nomination form for reserved seat (OBC) was not valid considering the fact that the judgment nullifies the inclusion of Vaishya Wani and Kulwant Wani in Entry 190 of OBC category from its inception. A priori, Dewalekar cannot be permtited to continue in the office of the Municipal Councillor of Ward No.30, which seat is reserved for OBC. That is the constitutional reservation which cannot be allowed to be usurped by other persons. In these proceedings, therefore, we have no hesitation in acceding to the relief claimed by the petitioners to declare that the caste certificate and caste validity certificate issued by the concerned authorities in favour of Dewalekar as belonging to OBC category, as illegal, null and void and deserve to be quashed and set aside.
16. To get over this position, the respondents would rely on the Government Resolution dated 19.7.2011. According to the respondents, by virtue of this resolution, the tenure of candidates of caste Vaishya Wani and Kulwant Wani elected againt the reserved seat in Local Self Government will not come to an end due to change in the caste category. It is apposite to reproduce the 20 of 38
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official translation of the said resolution which is originally in Marathi. The same reads thus:
EXHIBIT - A
(Office translation from Marathi to English) for omitting "Vaishya Wani" and "Kulwant Wani" Caste group from Other Backward Class.
MAHARASHTRA GOVERNMENT
Social Justice and special assistance Department Government Resolution No. CBC-
0/2010/Pra.Kra.104/Mavak-5
Mantralaya Extension Bhavan, Mumbai 400032. Date:19th July, 2011
Read:
1) Government Letter No. CBC-1489/8182(40)/ Mavak-5 dt. 27/04/1989.
2) Government letter No. CBC-1489/8182(40)/ Mavak-5 dt. 28/10/1989
3) Government Resolution No. CBC-1093/1492/ Pra/Kra.28/Mavak-5 dt. 9/8/1995.
4) Government Resolution No. CBC-1496/
Pra.Kra.38/Mavak-5 dt. 21/8/1996
5) Government Circular No. Cbc-10/2007/ Pra.Kra. 177/Mavak-5 dt. 20/6/2008.
Preamble:
In the Judgment passed on dt. 1/10/2010 by the Mumbai Benchof the Hon'ble High Court in Writ Petition No. 4335/07 Shri Vishwanath Pandurang Mahadeshwar versus State of Maharashtra and others, the Hon'ble Court has passed order that inclusion of "Vaishya-Wani and "Kulwant Wani" casts community in Other Backward Class is not as per proper procedure, therefore, case of omitting both the said castes from Other Backward Category was under consideration of government.
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Government Resolution:-
As per the order passed on dt. 1/10/2010 by the Hon'ble High Court, Mumbai bench in Writ Petition No. 4335/07 Shri vishwanath Pandurang Mahadeshwar Versus State of Maharashtra and others, the decision as follows is taken at government level:-
1) Government letters/ Government Resolutions/ Government Circulars of date 27/4/1989, 28/10/1989, 21/8/1996 and 20/6/2008 in respect of caste-group "Vaishya Wani" and "Kulwant Wani", are hereby revoked/cancelled. Entry at Serial No. 5 having reference of caste-group "Vaishya Wani" and "Kulwant Wani" in Annexure "B" of Government Resolution dated 9/8/1995 is hereby cancelled. 2) Caste community "Vaishya Wani" and "Kulwant Wani" is hereby omitted from Other Backward Class category (from the date of passing government order). Entry of caste "Vaishya Wani" and "Kulwant Wani" mentioned at Sr. No. 190 in the list of Other backward class Category of State is hereby deleted.
3) Benefits of Other Backward Class category were admissible to caste-community "Vaishya Wani" and "Kulwant Wani" from the year 1989. the said general benefits of other backward-class category will not be admissible to them from the date of issuance of this Government Resolution.
4) Officers/employees appointed from caste "Vaishya Wani" and "Kulwant Wani" on posts reserved for Other backward Class in government/Semi-Government service be treated as of open category from the date of their appointment and they may be shown on point of open category in Roster.
5) Tenure of candidate of caste "Vaishya Wani" and "Kulwant Wani" elected on seat of Ward reserved for backward Class under Local
Independent Bodies will not come to an end due to change in caste-category.
6) Whatever general benefits were admissible to caste community "vaishya Wani" and "Kulwant Wani" from the year 1989 and whatever benefits they have 22 of 38
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received, the said benefits or concessions should not be taken away with retrospective effect.
7) This Government Resolution will come into effect from the date of its issuance.
The Said government resolution is made available on government's website (www.maharashtra.gov.in) and its computer code is 20110719191543001.
By the name and in pursuance of Order of governor of Maharashtra.
Sd/-
(Dinesh Waghmare)
Secretary,
Maharashtra Government.
17. We are in agreement with the criticism of the petitioners that this resolution is not in consonance with the spirit of the judgement in Mahadeshwar's case at all. Even though the preamble of the resolution adverts to the decision in Mahadeshwar's case, it gives an impression that the deletion of castes Vaishya Wani and Kulwant Wani from OBC list was being considered by the State Government on its own. To say the least, this assumption is preposterous. For, as soon as this Court declared that the concerned Government Resolutions / Circular / Communications are unconstitutional and nullity, it necessarily followed that the inclusion of caste Vaishya Wani and Kulwant 23 of 38
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Wani in Entry 190 of the List of OBC published by the State Government stood effaced - as if it never existed from its inception. In that case, there was no reason for the State Government to consider the issue of exclusion or deletion of those castes from Entry No.190. That was a non-issue on 19.7.2011, when the impugned Government Resolution has been issued. It is not in dispute that the decision in Mahadeshwar's case was allowed to attain finality by the State Government as it did not challenge the same. There was unsuccessful challenge to the said decision by a private party. That appeal before the Apex Court was withdrawn on 4.2.2011. Suffice it to observe that the highlighted words in the preamble from ", therefore, case of omitting both the said castes from OBC category was under consideration of Government" will have to be quashed and set aside being ill-advised. For, the same is in the teeth of the decision in Mahadeshwar's case, having already quashed and set aside the inclusion of Vaishya Wani and Kulwant Wani caste in Entry 190 of the List of OBC category published by the State Government.
18. Turning to paragraphs 1 & 2 of the said Government Resolution, for the reasons already recorded, the same will have to 24 of 38
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be quashed and set aside in its entirety, being palpably in the teeth of the decision in Mahadeshwar's case.
19. That takes us to paragraph 3 of the impugned Government Resolution. We are in agreement with the submission of the petitioners that the words "from the date of issuance of this Government Resolution", conveys that inspite of the decision of this Court dated 1.10.2010 in Mahadeshwar's case, which, in any case became fully operative on and after 17.12.2010, the benefits of OBC category were made admissible to Vaishya Wani and Kulwant Wani until 19.11.2012. This cannot be countenanced. As aforesaid, the effect of the judgment in Mahadeshwar's case, is that, the inclusion of Vaishya Wani and Kulwant Wani in Entry 190 in the list of OBC notified by the State Government never existed from its inception. At any rate, the State Government, by a Government Resolution cannot be permitted to undo the effect of the judgment of the High Court, which can be done only by the Legislature. It is one thing to say that the benefits of OBC availed by the persons belonging to Vaishya Wani and Kulwant Wani caste on the basis of the earlier Entry 190 requires to be protected; but it is not open to the State Government by issuing Government 25 of 38
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Resolution to declare that the benefit of OBC category would be admissible to them till the issuance of Government Resolution dated 19.7.2011- inspite of the decision of the High Court dated 1 st October, 2010 to the contrary. This is the inevitable effect of the provision made in paragraph 3, having observed that the general benefits of OBC will not be admissible to them from the date of issuance of the Government Resolution. As the converse of that would mean that the benefits would be admissible to those castes until the issuance of Government Resolution on 19.7.2011 notwithstanding the declaration and judgment of this Court dated 1.10.2010. Accordingly, the above quoted words in paragraph 3 of the Resolution deserve to be quashed and set aside.
20. As regards paragraphs 4 & 6, we do not wish to deal with the efficacy thereof. Paragraph 4 predicates that the officers/employees appointed from caste Vaishya Wani and Kulwant Wani on posts reserved for OBC in Government/Semi- Government service be treated as open category from the date of their appointment and may be shown on points of open category in roster. Paragraph 6 provides that whatever general benefits were admissible to caste Vaishya Wani and Kulwant Wani from the year 26 of 38
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1989 and whatever benefits they have received, the said benefits or concessions should not be taken away with retrospective effect. We do not wish to examine the challenge to these clauses firstly on the ground that it could not be done by issuance of Government Resolution but only by enacting appropriate law made by the Legislature in that behalf or for that matter, the same are in the teeth of section 10 of 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. Even the petitioners are not keen on challenging the said paragraphs as the limited issue raised in the present petitions is about the validity of election of Dewalekar against reserved seat for OBC. Accordingly, we are not expressing any opinion in that behalf in these Petitions.
21. What is seriously challenged in the present petitions is paragraph 5 of the said Government Resolution. It provides that the tenure of a candidate of caste Vaishya Wani and Kulwant Wani elected against reserved seat of OBC in Local Self Government will not come to an end due to change in caste category. We agree 27 of 38
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with the petitioners that in the first place it is not a case of change in caste category as is erroneously assumed by the State Government. The effect of decision in Mahadeshwar's case, is that, the inclusion of Vaishya Wani and Kulwant Wani in Entry 190 was never in existence right from its inception. It is, therefore, not a case of change of caste category as such. Secondly, the State Government by issuing a Government Resolution cannot validate the election of a person who was not eligible to be so elected against reserved category. Reservation of seat in Local Self Government is a constitutional reservation which cannot be tampered by issuance of Government Resolution by the State Government. The reservation is also on account of the statutory provisions applicable to the concerned Local Self Government. In the present case, the provisions of the Bombay Provincial Municipal Corporations Act will be attracted. The expression "backward class of citizens" has been defined in section 2(3A) of that Act to mean "such classes or parts of or groups within such classes as are declared, from time to time, by the State Government to be Other Backward Classes and Vimukta Jatis and Nomadic Tribes". The caste which is not so declared can never be treated as belonging to OBC, that too by issuing of Government 28 of 38
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Resolution. It is therefore incomprehensible as to how by issuance of Government Resolution, the State Government can validate the election of a person who does not belong to OBC but is holding on to the office or has usurped the office ear-marked for OBC. We find force in the argument of the petitioners that the office of Municipal Councillor has nothing to do with the livelihood of that person which is required to be preserved at all costs, as is the subtle attempt in this Government Resolution. As aforesaid, the election of a person is valid or otherwise will have to be examined in the context of the provisions contained in the Municipal law providing for qualification and disqualification of the candidate, such as Bombay Provincial Municipal Corporations Act. The moment it is held that the caste certificate and caste validity certificate declaring Dewalekar as belonging to OBC (being Vaishya Wani caste) are non-est, by operation of law, it would necessarily follow that he has vacated the office of Municipal Councillor reserved for OBC which is held by him, assuming that he contested the election from Ward No.30 reserved for OBC in October, 2010 in good faith because of the stay of the judgment until 17.12.2010. In that event, the Appropriate Authority would be obliged to initiate action in respect of the vacancy so caused. That legal and statutory obligation on 29 of 38
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the Appropriate Authority cannot be interdicted by issuance of Government Resolution by the State Government. Moreover, the inevitable consequence of the provision made in paragraph 5 of the impugned resolution, is that, even the Court of competent jurisdiction may not be able to unseat Dewalekar and similarly placed persons inspite of recording a finding that the caste certificate and caste validity certificate declaring such person as OBC category is non-est in the eye of law from its inception as a result of the decision dated 1.10.2010 in Mahadeshwar's case. For all these reasons, we have no hesitation in taking the view that paragraph 5, on the face of it, is, untenable and deserves to be quashed and set aside.
22. Relying on paragraph 6 of the Government Resolution it is possible for Dewalekar to contend that he had taken benefit on the basis of his caste Vaishya Wani, as belonging to OBC, by contesting election in October 2010; and that benefit should not be taken away. Further, it would result in taking away benefit with retrospective effect. This argument will be of no avail for more than one reason. Firstly, it is not taking away the benefit with retrospective effect. For, even if the stand of Dewalekar is to be 30 of 38
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accepted that the judgment became fully operational only on or after 17.12.2010, the effect of the judgment is that the caste certificate and the caste validity certificate declaring and treating Dewalekar as belonging to OBC has become non-est from its inception. As a result, he is ineligible to occupy the reserved seat and deemed to have vacated his office of Municipal Councillor reserved for OBC, on the decision coming into effect. Taking any other view of the matter, it would mean that the Government Resolution is in the nature of undoing the effect of the decision of this Court and also introducing a deeming fiction that persons similarly placed as Dewalekar who had subsisting tenure in the office of Local Self Government could continue to occupy the seat ear-marked for reserved category. That is completely impermissible. Further, the post of Municipal Councillor is only a public office and not engagement of a person for livelihood. The question of persons occupying such post need no protection, that too, by Government Resolution.
23. A priori, we have no hesitation in striking down the highlighted portion of the preamble, paragraphs 1, 2 and 5 in its entirety and highlighted portion of paragraph 3 of the Government 31 of 38
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Resolution dated 19th July, 2011. Having said this, it would then follow that by virtue of the decision of this Court in Mahadeshwar's Case (supra), persons belonging to caste Vaishya Wani and Kulwant Wani cannot claim benefit or concession provided for OBC category, so long as caste Vaishya Wani is not in fact included in the list of reserved category persons, by the State Government, after following due procedure as referred to in the decision in Mahadeshwar's case. Suffice it to observe that the caste certificate issued by the appropriate Authority and the caste validity certificate issued by the Caste Scrutiny Committee, in favour of Dewalekar, as belonging to OBC, is quashed and set aside in terms of this judgment, keeping in mind the effect of the judgment of this Court in Mahadeshwar's case (supra) and, as a result of which, Dewalekar could not contest the election in October, 2010 against the reserved seat and in any case has deemed to have vacated his office of Municipal Councillor, which is reserved for OBC on the analogy of invalidation of caste certificate or caste validity certificate, held by the elected candidate against the reserved post.
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24. The question is, whether this Court, in exercise of Writ Jurisdiction, should then proceed to consider the further reliefs claimed by the Petitioners for declaration that the election of Dewalekar is void or for declaring the Petitioner in the first Writ Petition as duly elected in place of Dewalekar, having secured second highest votes. Although the Petitioners have relied on the decision of the Division Bench of this Court, in the case of Kishor Kashinath Patil vs. State of Maharashtra 2005 Mh. L. R (2) 787, which has considered similar objection of maintainability of the Petition on the basis of Article 243 ZG(b) of the Constitution of India including the purport of relief of quo-warranto, and that the contesting candidate and voters from the constituency have right to resort to Election Petition. However, considering the fact that the Petitioner in the first Petition has already filed Election Petition, not only to challenge the election of Dewalekar but also for further relief of declaring that she has been duly elected, having secured second highest votes in the election, we do not deem it proper to exercise jurisdiction under Article 226 of the Constitution of India, so as to grant those reliefs. Moreover, in addition to the said remedy, it is open to the Appropriate Authority to initiate action on the assumption that Dewalekar has deemed to have vacated his 33 of 38
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office of Municipal Councillor, which is reserved for OBC category. The said Authority will be free to direct Dewalekar to deposit the amount availed by him from the State Exchequer for the relevant period in his capacity as Municipal Councillor of Ward No. 30, if so advised.
25. The principal argument of the Respondents, in particular the Government Pleader, was that the State Government was competent to issue the impugned Government Resolution dated 19th July, 2011 in view of liberty given to the State Government in paragraph 52 of the decision in Mahadeshwar's case (supra). Paragraph 52 of the decision in Mahadeshwar's case reads thus:
"52. The question is: what would be the cascading effect on the persons who have already taken benefit either on the basis of impugned communications or Government Resolutions
dated 9th August, 1995, 21st August 1996 and Government Circular dated 20th June, 2008. we were informed that large number of persons were likely to be affected, who have already taken benefit as belonging to OBC covered by Entry No. 190 of the original list. We express no opinion in that regard and leave it to the wisdom of the State Government to take appropriate measures as may be advised."
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26. On a bare perusal of the above quoted observation, it is unfathomable that the State Government could have validated the concession or benefit availed by the persons belonging to Vaishya Wani and Kulwant Wani as belonging to OBC, by issuance of Government Resolution dated 19 th July, 2011. For the reasons recorded hitherto, we have no hesitation in taking the view that the liberty given to the State Government, to take appropriate measures, necessarily meant that the State Government must enact a law, to be passed by the Legislature, for validating the concession and benefit already availed by the concerned persons belonging to Vaishya Wani and Kulwant Wani as OBC, during the relevant period. That cannot be done by a Government Resolution.
27. Even the argument of the Respondents that the State Government had taken further steps of forwarding the proposal to the Backward Class Commission or that the Backward Class Commission has instituted survey and would soon prepare report, will be of no avail. Assuming that the Backward Class Commission recommends inclusion of Vaishya Wani and Kulwant Wani in the list of OBC category, that could be done by the State Government, 35 of 38
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if at all, only with prospective effect and not retrospectively. Whether retrospective effect can be given to the recommendation made by the Commission by way of law passed by the legislature, is a matter to be considered by the State Government. Suffice it to observe that the issue regarding inclusion of Vaishya Wani and Kulwant Wani castes in the list of OBC is pending with the Backward Class Commission does not take the matter any further.
28. Taking any view of the matter, therefore, both these Petitions must partly succeed. We accordingly pass the following order:
ORDER
(i) Rule is made partly absolute.
(ii) We declare that the highlighted portion of the preamble; paragraphs 1, 2 and 5 in its entirety; and highlighted portion of paragraph 3 of the Government Resolution dated 19 th July, 2011, is quashed and set aside being illegal and unconstitutional. (iii) The Caste Certificate issued by the Appropriate Authority and the Caste Validity Certificate issued by the Caste Scrutiny Committee, declaring Dewalekar as belonging to OBC are 36 of 38
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declared as non-est from its inception and the same are quashed and set aside.
(iv) The concerned Court is directed to expedite the hearing of Election Petition filed by the Petitioner in the first Writ Petition (Chaitrali Prakash Borhade). The same be finally disposed of preferably before 13th August, 2012. Although, that Court may declare the election of Dewalekar as invalid, yet, whether the Petitioner in the Election Petition should succeed in getting further relief of declaration that she is duly elected in place of Dewalekar, having secured second highest votes, is a matter to be considered on its own merits in accordance with law. All questions in that behalf are left open.
(v) The Petitioner in first Writ Petition and Dewalekar shall appear before the Concerned Court where the election petition is pending, on 15th June, 2012 at 11.00 a.m., when appropriate direction can be issued in the Election Petition for early disposal thereof. The Petitioner in the Election Petition and Dewalekar shall extend full cooperation to the concerned Court for early disposal of the said election Petition.
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(vi) The Appropriate Authority shall forthwith initiate action, on the basis that Dewalekar has vacated his office in view of this decision, but shall not hasten the process of filling in that vacancy, until the decision of the Court in pending Election Petition - wherein further declaration is sought by the Petitioner (in Election Petition) that she is duly elected in place of Dewalekar.
(vii) Rule made absolute on the above terms with cost. (S.S. SHINDE, J.) (A.M. KHANWILKAR,J.) 38 of 38
Print Page
Bombay High Court
Smt. Chaitrali Prakash Borhade vs Of 38 on 11 June, 2012
Bench: A.M. Khanwilkar, S. S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAYAPPELLATE SIDE
WRIT PETITION NO.10194 OF 2010
Smt. Chaitrali Prakash Borhade v Rajendra
Reserved on :- 11th May, 2012
Pronounced on :- 11th June, 2012
JUDGMENT (PER A.M. KHANWILKAR, J.):
1. We propose to dispose of these Writ Petitions together by this common judgment, as it involve common issues. 3 of 38
2. Rule has already been granted in Writ Petition No. 6638/2011.
3. Writ Petition No. 10194/2010 was ordered to be heard along with companion Writ Petition, to be taken up for final disposal. Accordingly, Rule is granted even in this Writ Petition. Counsel appearing for the respective Respondents waive service. By consent, taken up for final disposal forthwith.
4. In the first Writ petition, filed under Article 226 of the Constitution of India, the Petitioner therein, who belongs to "Parit" caste, asserts that she had contested election to the office of Municipal Councillor in the General Municipal Election 2010 of Kalyan Dombivali Municipal Corporation from Ward No. 30, Karnik Road, Kalyan, which was reserved for Backward Class, as official nominee of "Indian National Congress". She was defeated by a narrow margin of 410 votes by Respondent No. 1 Mr. Rajendra Jaywant Dewalekar (for short referred to as 'Dewalekar'). He had contested the said election as official nominee of "Shivsena Party", claiming to be belonging to Vaishya Wani Caste. The said elections were notified vide election programme dated 6 th October, 2010. As per the said election programme, the nominations were 4 of 38
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to be filed by the candidates, before 13 th October, 2010. The election results were notified on 3 rd November, 2010.
5. According to the Petitioner in the first Petition, the said Dewalekar could not have participated in the said election against the reserved seat for Backward Class. Inasmuch as, the Caste Vaishya Wani, to which Dewalekar belonged, was considered as Other Backward Class (for short "OBC") since year 1989. But, consequent to the decision of this Court, on 1 st October, 2010 in Writ Petition No. 1148/2010 in the case of Vishwanath Pandurang Mahadeshwar, (2011) 1 Mh. L. J. 310, Caste Vaishya Wani, could no longer be treated as OBC. In that view of the matter, said Dewalekar could not have filed his nomination pursuant to the election programme, against the reserved seat, on 13 th October, 2010. The Petitioner asserts that she has already challenged the election of Dewalekar by filing Election Petition on 30 th November, 2010. In the said Election Petition, she has asked for further relief of declaring her to be duly elected, considering the fact that she secured second highest votes during the said election. The said election dispute is still pending before the concerned Court. The Petitioner, however, has filed this Petition for issuance of Writ in 5 of 38
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nature of quo-warranto or any other appropriate writ and to declare the election of Dewalekar to the office of Municipal Councillor of Kalyan Dombivali Municipal Corporation from Ward No. 30, reserved for the Backward Class, held in October, 2010, as invalid and illegal and that he is not entitled to hold the said office.
6. It is noticed that against the decision of this Court dated 1st October, 2010 in case of Mahadeshwar (supra), a Special Leave Petition was filed before the Apex Court. That came to be withdrawn on 4th February, 2011. In other words, the decision in Mahadeshwar's case has attained finality. The State Government, thereafter, issued Government Resolution dated 19th July, 2011, whereby, protection has been granted to persons belonging to the caste "Vaishya Wani" and "Kulwant Wani", appointed against posts reserved for OBC in Government/Semi Government services, by treating their appointments having been made from open categories, from the date of their appointments and to be shown on point of open categories in Roster. The said Resolution further provides that the persons belonging to the said Caste "Vaishya Wani" and "Kulwant Wani", elected on seats reserved for Backward Class in Local Self Government will not come to an end due to 6 of 38
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change in Caste Category. The said Government Resolution further provides that, general benefits or concessions already availed by persons belonging to "Vaishya Wani" and "Kulwant Wani, as Other Backward Class, from year 1989, should not be taken away with retrospective effect. This Resolution was issued during the pendency of the first Writ Petition. As a result, the Petitioner in first Writ Petition, by amending her Writ Petition, has challenged the said Government Resolution as illegal, invalid, null and void and/or violative of the judgment of this court dated 1 st October, 2010 in the case of Mahadeshwar. The said Petitioner has asked for further relief of quashing and cancelling the Caste Certificate and the Caste Validity Certificate issued to Respondent No. 1 (Dewalekar). Further, to recover all the benefits enjoyed by Dewalekar as Municipal Councillor from Ward No. 30, by misusing the said caste certificate.
7. The second Writ Petition, bearing Writ Petition No. 6638/2011, has been filed by a Society registered under the provisions of Societies Registration Act, 1860 and Bombay Public Trust Act, 1950. The said Petitioners assert that the Society has been established and registered for Public Charitable objectives, 7 of 38
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welfare of women including to provide legal help and legal awareness. Even these Petitioners have claimed identical reliefs as in the first Petition.
8. In both these petitions, the grievance is that, after the decision in Mahadeshwar's case (supra), persons belonging to "Vaishya Wani" or "Kulwant Wani" could no longer claim benefit as belonging to Other Backward Classes. Inasmuch as, with the quashing and setting aside of the relevant Government Resolutions/ Circular/Communications, in law, the entry effected in the list of Other Backward Classes, to include Vaishya Wani and Kulwant Wani, became non-est. For, the Government Resolutions/Circular/Communications having been held to be unconstitutional were void ab initio. As a result, the said Dewalekar could not have contested the elections against the reserved seat for OBC even though he belongs to Vaishya Wani community. According to the petitioners in both these petitions, the Government Resolution dated 19.7.2011 is violative of Article 14 r/w Articles 15(4) and 16(4) of the Constitution of India. The same is arbitrary, irrational and unjust and fraud on Constitution. It is on the face of it contemptuous and issued with malafide intention to 8 of 38
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validate an invalid action and, in particular, to validate the Government Resolutions which have already been struck down in Mahadeshwar's case. It is stated that the said Government Resolution is on the face of it not in consonance with the judgment of this Court in Mahadeshwar's case and in fact, is an attempt to undermine the said decision. As per the said decision, the State Government was given option to take appropriate measures as may be advised with a view to protect the interest of persons belonging to the said caste who had taken benefit of reservation meant for Other Backward Classes. Indeed, the State Government was expected to take corrective measures by following appropriate procedure for validation by introducing law in that behalf and certainly not by issuing Government Resolution. At any rate, the State Government could not extend protection to persons belonging to the said caste i.e. Vaishya Wani and Kulwant Wani after the decision in Mahadeshwar's case dated 1.10.2010. As a matter of fact, on account of the said decision which has attained finality and has been accepted even by the State Government, the consequence is that the Government Resolutions/ Circular/ Communications which have been quashed and set aside by the said decision will have to be treated as void ab initio and having no 9 of 38
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force from its inception, being unconstitutional. According to the petitioners, the language of the impugned Government Resolution dated 19.7.2011 suggests that the benefit is extended to persons belonging to Vaishya Wani and Kulwant Wani even beyond 1.10.2010 in the guise of validation of the benefits or concessions availed by them. In both these petitions, it is alleged that the said Dewalekar has usurped the independent substantive public office of Municipal Councillor which was reserved for Other Backward Class - even though he could not have been treated as belonging to OBC on and after 1.10.2010 consequent to the decision in Mahadeshwar's case. According to the petitioners, Dewalekar has knowingly misused and misinformed the Returning Officer by falsely claiming to be belonging to OBC and contested the election against the reserved seat held in October 2010. The Returning Officer could not have accepted the candidature of the said Dewalekar as belonging to OBC against the reserved seat. Further, the State Government could not have issued the Government Resolution dated 19 th July, 2011 to validate the elections of candidates belonging to Vaishya Wani and Kulwant Wani caste who had contested after 1.10.2010 as belonging to OBC.
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9. The Respondents in their respective petitions have opposed the petitions mainly on the argument that the petitioners have alternative and efficacious remedy by way of election dispute. This Court should be loath in entertaining Writ Petition under Article 226 of the Constitution of India in respect of election to Municipal Councillor against the reserved seat. There is constitutional bar in interfering with elections to municipalities by virtue of Article 243 ZG(b) of the Constitution of India. Further, question of issuing writ of Quo Warranto does not arise. The respondents also contend that the Government Resolution dated 19.7.2011 has been justly issued by the State Government and that the State Government was competent to issue such resolution. The respondents have placed emphasis on paragraph 52 of the decision in Mahadeshwar's case. As a result, the election of Dewalekar cannot be reopened as it has been validated. It is also contended by the Counsel for Dewalekar that it is indisputable that the decision in Mahadeshwar's case was kept in abeyance for a period of 12 weeks from the date of pronouncement. That can be discerned from paragraph 57 of the judgement which records that the judgement shall not be given effect to for a period of 12 weeks from the date of its pronouncement. In that view of the matter, the 11 of 38
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judgment would come into force only after the expiry of 12 weeks period. But, in the meantime, Dewalekar had already submitted his candidature for election as Municipal Councillor for Ward No.30 to be held in October, 2010. He was declared elected on 3.11.2010 before the stay of the judgment in Mahadeshwar's came to end. Therefore, Dewalekar could continue to hold the office of Municipal Councillor even though the caste Vaishya Wani was no longer to be treated as belonging to OBC. At the end, the Government Pleader contended that after the decision in Mahadeshwar's case, the State Government not only issued the impugned Government Resolution dated 19.7.2011 but have also taken other steps. In that, the Social Justice and Special Assistance Department of the State Government has forwarded the proposal to the Backward Class Commission for reference and for submission of fresh report, as to whether the caste Vaishya Wani can be included in the category of OBC. We were informed that the Backward Class Commission has already deputed its members to make enquiry. After conducting survey, the Commission would submit its report to the State Government and further suitable decision would be taken by the State Government. On the above argument, the respondents have prayed for dismissal of both these petitions. 12 of 38
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10. We shall first advert to preliminary objection raised by the Respondents about the maintainability of this Petition. For answering this objection, we may have to bear in mind the reliefs claimed in these Petitions. One of the relief claimed is for quashing and setting aside the Government Resolution dated 19 th July, 2011. The other is of quashing and setting aside the Caste Certificate and Caste Validity Certificate issued in favour of Dewalekar. Those reliefs cannot be considered in the Election Petition. So long as the said Government Resolution operates, election of Dewalekar cannot be questioned much-less successfully. For, even if the concerned Court were to find that the caste certificate and the caste validity certificate, declaring Dewalekar as belonging to OBC category, be treated as non-est, the purport of the impugned Government Resolution would come to the aid of Dewalekar. In other words, the Petitioner has no other alternative efficacious remedy except to approach this Court by way of Writ Petition under Article 226 of the Constitution of India for challenging the Government Resolution dated 19 th July, 2011. Indeed, the Petitioner in the first Petition has asked for further relief of invalidating the election of Dewalekar and for declaring the said Writ Petitioner as duly elected. Whether that relief should be 13 of 38
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granted or otherwise will be considered a little later. Only if the said reliefs were to be considered or granted, the preliminary objection regarding constitutional bar to interfere with election, in terms of Article 243 ZG (b) of the Constitution of India or that the contesting candidate and the voters of the constituency, have alternative remedy by way of Election Petition may arise for consideration.
11. Accordingly, we now proceed to examine the foremost question that arises for consideration, on merits. To wit, what is the effect of the decision in Mahadeshwar's case? In that case, the Scrutiny Committee had invalidated the caste claim of the Petitioner therein. As a result thereof, the Petitioner was required to vacate the office of Municipal Corporator. The Petitioner therein had claimed that he belonged to caste Vaishya Wani, which was notified as OBC category. The Caste Scrutiny Committee, however, held that the Petitioner was unable to establish the fact that he belonged to Vaishya Wani caste. Instead, it found that the oldest documents, which had probative value, indicated that he belonged to caste Wani. In this backdrop, one of the question that arose for consideration was, whether caste Vaishya Wani or Wani 14 of 38
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are synonyms and further, whether those castes were castes or sub-castes covered under entry 190 of Government Resolution dated 12th October, 1976. In the context of the challenge, the Court was required to examine the efficacy of Government Resolutions dated 9th August, 1995 and 21st August, 1996, Government Circular dated 20 th June, 2008 and Communications from the department dated 27 th April, 1989 and 18th October, 1998. The Court held that inclusion of "Vaishya Wani" and "Kulwant Wani" as OBC along with "Kathar", "Katharwani and Kantharwani (except "Lingayatwani" and "Ladwani")" was without following necessary procedure as prescribed in the decision of the Apex Court in Indira Sawhney's case. Thus, the inclusion of "Vaishya Wani" and "Kulwant Wani" in entry 190 of the List of OBC Category was held to be nullity and unconstitutional. It is not in dispute that the said decision has attained finality.
12. The effect of striking down the relevant Government Resolutions/Circular/Communications, which purported to include Vaishya Wani and Kulwant Wani in entry 190 of the List of the OBC Category, in law, is that, the said Government Resolutions/Circular/Communications had never existed at all for 15 of 38
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all purposes and thus the caste Vaishya Wani and Kulwant Wani did not belong to OBC at any point of time. For, the striking down of the Government Resolutions/Circular/ Communications on the ground that the same were unconstitutional and nullity in the eye of law, it would follow that the same will have to be treated as still born or non-est. It may be useful to refer to the principle underlying the decisions in case of Behram Khurshid vs. Bombay State AIR 1955 SC 123, Bhiaji Narain Dhakras vs. State of MP AIR 1995 SC 781, Deepchand vs. State of U. P. AIR 1959 SC 648 and State of Gujarat vs. Shree Ambica Mills Ltd. AIR 1974 SC 1300.
13. The concomitant, is that, the caste certificates and caste validity certificates issued by the concerned authorities declaring the persons belonging to caste Vaishya Wani and Kulwant Wani as OBC Category, will automatically become nullity and non-est for all purposes. The said caste certificates and caste validity certificates issued by the concerned authorities would be then simpliciter certificates declaring that the incumbent belongs to caste Vaishya Wani or Kulwant Wani as the case may be, but not covered under the OBC category. That would be irrespective of whether the certificate has been issued prior to 1 st October, 2010 or 16 of 38
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thereafter. So long as the State Government, by following necessary procedure, does not notify the inclusion of caste Vaishya Wani or Kulwant Wani as belonging to OBC or any other reserved category, the caste certificate or caste validity certificate possessed by persons belonging to Vaishya Wani or Kulwant Wani, as the case may be, will be of no avail to the concerned persons much less to claim benefit against reserved seat/post in any Organisation/Institution.
14. A priori, the caste certificate, as also the caste validity certificate, issued in favour of Dewalekar by the concerned Authorities, on the basis of inclusion of caste Vaishya Wani in entry 190 at the relevant time, will have to be treated as non-est in the eye of law, from its inception, for all purposes. No doubt, the caste certificate in favour of Dewalekar is issued on 13 th May, 2005 and the caste validity certificate on 9th September, 2010 by the concerned Authorities. At the relevant time, caste Vaishya Wani was recognised as OBC pursuant to the Government Resolutions issued from time to time, which have now been held to be issued without authority of law by the State Government. Therefore, the said caste certificate and caste validity certificate respectively, 17 of 38
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issued in favour of Dewalekar could be of no utility much-less germane for contesting the election to the post of Municipal Councillor against the reserved seat for OBC, after 1 st of October, 2010. The nomination form supported by such certificates was, therefore, not a valid nomination.
15. The question is: whether the stay to the judgment in Mahadeshwar's case granted on the same day when the judgment was pronounced, as recorded in paragraph 57 thereof, will make any difference? Para 57 of the decision in Mahadeshwar's case reads thus:
"57. At this stage, Counsel for the Petitioner as well as the Government Pleader prays for stay of operation of this Judgment. We have no
difficulty in accepting this request. The Judgment shall not be given effect to for a period of twelve weeks from today. We make it clear that this interim arrangement will not enure to the benefit of the Petitioner."
The effect of stay of operation of the judgment does not mean that the judgement has been completely effaced - (See Shri Chamundi Mopeds vs. South India Churches Trust Association, 1992 (3) SCC 1). The judgment would still hold the field. Indeed, the judgment could not have been given effect to for a period of 12 18 of 38
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weeks, but on expiry of 12 weeks and the judgment having attained finality, the same came into force with full effect at least from 17.12.2010. Since that judgment was never challenged by the State Government and in fact has attained finality, in law, the reservation for Vaishya Wani or Kulwant Wani caste as belonging to OBC category never existed from its inception and the caste certificate or caste validity certificate issued by the concerned authorities in favour of persons belonging to that caste as OBC are bound to be treated as non-est in the eye of law irrespective of the date of its issuance. Indeed, the Returning Officer cannot be blamed for entertaining the nomination form of Dewalekar which was backed by caste certificate and caste validity certificate disclosing that he belonged to OBC. But, after 17.12.2010, the declaration in the said certificates that Dewalekar belonged to OBC category, ceases to exist; and, in law, it is non-est from its inception. It would necessarily follow that Dewalekar ceased to have a valid caste certificate, caste validity certificate as belonging to OBC. In that event, he ought to and deemed to have vacated the office of Municipal Councillor forthwith. Even though, Dewalekar may be justified in contending that he participated in the election conducted in October, 2010 in good faith, however, he did 19 of 38
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so with full knowledge of the said judgment and the consequences flowing therefrom. In law, his nomination form for reserved seat (OBC) was not valid considering the fact that the judgment nullifies the inclusion of Vaishya Wani and Kulwant Wani in Entry 190 of OBC category from its inception. A priori, Dewalekar cannot be permtited to continue in the office of the Municipal Councillor of Ward No.30, which seat is reserved for OBC. That is the constitutional reservation which cannot be allowed to be usurped by other persons. In these proceedings, therefore, we have no hesitation in acceding to the relief claimed by the petitioners to declare that the caste certificate and caste validity certificate issued by the concerned authorities in favour of Dewalekar as belonging to OBC category, as illegal, null and void and deserve to be quashed and set aside.
16. To get over this position, the respondents would rely on the Government Resolution dated 19.7.2011. According to the respondents, by virtue of this resolution, the tenure of candidates of caste Vaishya Wani and Kulwant Wani elected againt the reserved seat in Local Self Government will not come to an end due to change in the caste category. It is apposite to reproduce the 20 of 38
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official translation of the said resolution which is originally in Marathi. The same reads thus:
EXHIBIT - A
(Office translation from Marathi to English) for omitting "Vaishya Wani" and "Kulwant Wani" Caste group from Other Backward Class.
MAHARASHTRA GOVERNMENT
Social Justice and special assistance Department Government Resolution No. CBC-
0/2010/Pra.Kra.104/Mavak-5
Mantralaya Extension Bhavan, Mumbai 400032. Date:19th July, 2011
Read:
1) Government Letter No. CBC-1489/8182(40)/ Mavak-5 dt. 27/04/1989.
2) Government letter No. CBC-1489/8182(40)/ Mavak-5 dt. 28/10/1989
3) Government Resolution No. CBC-1093/1492/ Pra/Kra.28/Mavak-5 dt. 9/8/1995.
4) Government Resolution No. CBC-1496/
Pra.Kra.38/Mavak-5 dt. 21/8/1996
5) Government Circular No. Cbc-10/2007/ Pra.Kra. 177/Mavak-5 dt. 20/6/2008.
Preamble:
In the Judgment passed on dt. 1/10/2010 by the Mumbai Benchof the Hon'ble High Court in Writ Petition No. 4335/07 Shri Vishwanath Pandurang Mahadeshwar versus State of Maharashtra and others, the Hon'ble Court has passed order that inclusion of "Vaishya-Wani and "Kulwant Wani" casts community in Other Backward Class is not as per proper procedure, therefore, case of omitting both the said castes from Other Backward Category was under consideration of government.
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Government Resolution:-
As per the order passed on dt. 1/10/2010 by the Hon'ble High Court, Mumbai bench in Writ Petition No. 4335/07 Shri vishwanath Pandurang Mahadeshwar Versus State of Maharashtra and others, the decision as follows is taken at government level:-
1) Government letters/ Government Resolutions/ Government Circulars of date 27/4/1989, 28/10/1989, 21/8/1996 and 20/6/2008 in respect of caste-group "Vaishya Wani" and "Kulwant Wani", are hereby revoked/cancelled. Entry at Serial No. 5 having reference of caste-group "Vaishya Wani" and "Kulwant Wani" in Annexure "B" of Government Resolution dated 9/8/1995 is hereby cancelled. 2) Caste community "Vaishya Wani" and "Kulwant Wani" is hereby omitted from Other Backward Class category (from the date of passing government order). Entry of caste "Vaishya Wani" and "Kulwant Wani" mentioned at Sr. No. 190 in the list of Other backward class Category of State is hereby deleted.
3) Benefits of Other Backward Class category were admissible to caste-community "Vaishya Wani" and "Kulwant Wani" from the year 1989. the said general benefits of other backward-class category will not be admissible to them from the date of issuance of this Government Resolution.
4) Officers/employees appointed from caste "Vaishya Wani" and "Kulwant Wani" on posts reserved for Other backward Class in government/Semi-Government service be treated as of open category from the date of their appointment and they may be shown on point of open category in Roster.
5) Tenure of candidate of caste "Vaishya Wani" and "Kulwant Wani" elected on seat of Ward reserved for backward Class under Local
Independent Bodies will not come to an end due to change in caste-category.
6) Whatever general benefits were admissible to caste community "vaishya Wani" and "Kulwant Wani" from the year 1989 and whatever benefits they have 22 of 38
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received, the said benefits or concessions should not be taken away with retrospective effect.
7) This Government Resolution will come into effect from the date of its issuance.
The Said government resolution is made available on government's website (www.maharashtra.gov.in) and its computer code is 20110719191543001.
By the name and in pursuance of Order of governor of Maharashtra.
Sd/-
(Dinesh Waghmare)
Secretary,
Maharashtra Government.
17. We are in agreement with the criticism of the petitioners that this resolution is not in consonance with the spirit of the judgement in Mahadeshwar's case at all. Even though the preamble of the resolution adverts to the decision in Mahadeshwar's case, it gives an impression that the deletion of castes Vaishya Wani and Kulwant Wani from OBC list was being considered by the State Government on its own. To say the least, this assumption is preposterous. For, as soon as this Court declared that the concerned Government Resolutions / Circular / Communications are unconstitutional and nullity, it necessarily followed that the inclusion of caste Vaishya Wani and Kulwant 23 of 38
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Wani in Entry 190 of the List of OBC published by the State Government stood effaced - as if it never existed from its inception. In that case, there was no reason for the State Government to consider the issue of exclusion or deletion of those castes from Entry No.190. That was a non-issue on 19.7.2011, when the impugned Government Resolution has been issued. It is not in dispute that the decision in Mahadeshwar's case was allowed to attain finality by the State Government as it did not challenge the same. There was unsuccessful challenge to the said decision by a private party. That appeal before the Apex Court was withdrawn on 4.2.2011. Suffice it to observe that the highlighted words in the preamble from ", therefore, case of omitting both the said castes from OBC category was under consideration of Government" will have to be quashed and set aside being ill-advised. For, the same is in the teeth of the decision in Mahadeshwar's case, having already quashed and set aside the inclusion of Vaishya Wani and Kulwant Wani caste in Entry 190 of the List of OBC category published by the State Government.
18. Turning to paragraphs 1 & 2 of the said Government Resolution, for the reasons already recorded, the same will have to 24 of 38
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be quashed and set aside in its entirety, being palpably in the teeth of the decision in Mahadeshwar's case.
19. That takes us to paragraph 3 of the impugned Government Resolution. We are in agreement with the submission of the petitioners that the words "from the date of issuance of this Government Resolution", conveys that inspite of the decision of this Court dated 1.10.2010 in Mahadeshwar's case, which, in any case became fully operative on and after 17.12.2010, the benefits of OBC category were made admissible to Vaishya Wani and Kulwant Wani until 19.11.2012. This cannot be countenanced. As aforesaid, the effect of the judgment in Mahadeshwar's case, is that, the inclusion of Vaishya Wani and Kulwant Wani in Entry 190 in the list of OBC notified by the State Government never existed from its inception. At any rate, the State Government, by a Government Resolution cannot be permitted to undo the effect of the judgment of the High Court, which can be done only by the Legislature. It is one thing to say that the benefits of OBC availed by the persons belonging to Vaishya Wani and Kulwant Wani caste on the basis of the earlier Entry 190 requires to be protected; but it is not open to the State Government by issuing Government 25 of 38
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Resolution to declare that the benefit of OBC category would be admissible to them till the issuance of Government Resolution dated 19.7.2011- inspite of the decision of the High Court dated 1 st October, 2010 to the contrary. This is the inevitable effect of the provision made in paragraph 3, having observed that the general benefits of OBC will not be admissible to them from the date of issuance of the Government Resolution. As the converse of that would mean that the benefits would be admissible to those castes until the issuance of Government Resolution on 19.7.2011 notwithstanding the declaration and judgment of this Court dated 1.10.2010. Accordingly, the above quoted words in paragraph 3 of the Resolution deserve to be quashed and set aside.
20. As regards paragraphs 4 & 6, we do not wish to deal with the efficacy thereof. Paragraph 4 predicates that the officers/employees appointed from caste Vaishya Wani and Kulwant Wani on posts reserved for OBC in Government/Semi- Government service be treated as open category from the date of their appointment and may be shown on points of open category in roster. Paragraph 6 provides that whatever general benefits were admissible to caste Vaishya Wani and Kulwant Wani from the year 26 of 38
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1989 and whatever benefits they have received, the said benefits or concessions should not be taken away with retrospective effect. We do not wish to examine the challenge to these clauses firstly on the ground that it could not be done by issuance of Government Resolution but only by enacting appropriate law made by the Legislature in that behalf or for that matter, the same are in the teeth of section 10 of 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. Even the petitioners are not keen on challenging the said paragraphs as the limited issue raised in the present petitions is about the validity of election of Dewalekar against reserved seat for OBC. Accordingly, we are not expressing any opinion in that behalf in these Petitions.
21. What is seriously challenged in the present petitions is paragraph 5 of the said Government Resolution. It provides that the tenure of a candidate of caste Vaishya Wani and Kulwant Wani elected against reserved seat of OBC in Local Self Government will not come to an end due to change in caste category. We agree 27 of 38
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with the petitioners that in the first place it is not a case of change in caste category as is erroneously assumed by the State Government. The effect of decision in Mahadeshwar's case, is that, the inclusion of Vaishya Wani and Kulwant Wani in Entry 190 was never in existence right from its inception. It is, therefore, not a case of change of caste category as such. Secondly, the State Government by issuing a Government Resolution cannot validate the election of a person who was not eligible to be so elected against reserved category. Reservation of seat in Local Self Government is a constitutional reservation which cannot be tampered by issuance of Government Resolution by the State Government. The reservation is also on account of the statutory provisions applicable to the concerned Local Self Government. In the present case, the provisions of the Bombay Provincial Municipal Corporations Act will be attracted. The expression "backward class of citizens" has been defined in section 2(3A) of that Act to mean "such classes or parts of or groups within such classes as are declared, from time to time, by the State Government to be Other Backward Classes and Vimukta Jatis and Nomadic Tribes". The caste which is not so declared can never be treated as belonging to OBC, that too by issuing of Government 28 of 38
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Resolution. It is therefore incomprehensible as to how by issuance of Government Resolution, the State Government can validate the election of a person who does not belong to OBC but is holding on to the office or has usurped the office ear-marked for OBC. We find force in the argument of the petitioners that the office of Municipal Councillor has nothing to do with the livelihood of that person which is required to be preserved at all costs, as is the subtle attempt in this Government Resolution. As aforesaid, the election of a person is valid or otherwise will have to be examined in the context of the provisions contained in the Municipal law providing for qualification and disqualification of the candidate, such as Bombay Provincial Municipal Corporations Act. The moment it is held that the caste certificate and caste validity certificate declaring Dewalekar as belonging to OBC (being Vaishya Wani caste) are non-est, by operation of law, it would necessarily follow that he has vacated the office of Municipal Councillor reserved for OBC which is held by him, assuming that he contested the election from Ward No.30 reserved for OBC in October, 2010 in good faith because of the stay of the judgment until 17.12.2010. In that event, the Appropriate Authority would be obliged to initiate action in respect of the vacancy so caused. That legal and statutory obligation on 29 of 38
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the Appropriate Authority cannot be interdicted by issuance of Government Resolution by the State Government. Moreover, the inevitable consequence of the provision made in paragraph 5 of the impugned resolution, is that, even the Court of competent jurisdiction may not be able to unseat Dewalekar and similarly placed persons inspite of recording a finding that the caste certificate and caste validity certificate declaring such person as OBC category is non-est in the eye of law from its inception as a result of the decision dated 1.10.2010 in Mahadeshwar's case. For all these reasons, we have no hesitation in taking the view that paragraph 5, on the face of it, is, untenable and deserves to be quashed and set aside.
22. Relying on paragraph 6 of the Government Resolution it is possible for Dewalekar to contend that he had taken benefit on the basis of his caste Vaishya Wani, as belonging to OBC, by contesting election in October 2010; and that benefit should not be taken away. Further, it would result in taking away benefit with retrospective effect. This argument will be of no avail for more than one reason. Firstly, it is not taking away the benefit with retrospective effect. For, even if the stand of Dewalekar is to be 30 of 38
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accepted that the judgment became fully operational only on or after 17.12.2010, the effect of the judgment is that the caste certificate and the caste validity certificate declaring and treating Dewalekar as belonging to OBC has become non-est from its inception. As a result, he is ineligible to occupy the reserved seat and deemed to have vacated his office of Municipal Councillor reserved for OBC, on the decision coming into effect. Taking any other view of the matter, it would mean that the Government Resolution is in the nature of undoing the effect of the decision of this Court and also introducing a deeming fiction that persons similarly placed as Dewalekar who had subsisting tenure in the office of Local Self Government could continue to occupy the seat ear-marked for reserved category. That is completely impermissible. Further, the post of Municipal Councillor is only a public office and not engagement of a person for livelihood. The question of persons occupying such post need no protection, that too, by Government Resolution.
23. A priori, we have no hesitation in striking down the highlighted portion of the preamble, paragraphs 1, 2 and 5 in its entirety and highlighted portion of paragraph 3 of the Government 31 of 38
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Resolution dated 19th July, 2011. Having said this, it would then follow that by virtue of the decision of this Court in Mahadeshwar's Case (supra), persons belonging to caste Vaishya Wani and Kulwant Wani cannot claim benefit or concession provided for OBC category, so long as caste Vaishya Wani is not in fact included in the list of reserved category persons, by the State Government, after following due procedure as referred to in the decision in Mahadeshwar's case. Suffice it to observe that the caste certificate issued by the appropriate Authority and the caste validity certificate issued by the Caste Scrutiny Committee, in favour of Dewalekar, as belonging to OBC, is quashed and set aside in terms of this judgment, keeping in mind the effect of the judgment of this Court in Mahadeshwar's case (supra) and, as a result of which, Dewalekar could not contest the election in October, 2010 against the reserved seat and in any case has deemed to have vacated his office of Municipal Councillor, which is reserved for OBC on the analogy of invalidation of caste certificate or caste validity certificate, held by the elected candidate against the reserved post.
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24. The question is, whether this Court, in exercise of Writ Jurisdiction, should then proceed to consider the further reliefs claimed by the Petitioners for declaration that the election of Dewalekar is void or for declaring the Petitioner in the first Writ Petition as duly elected in place of Dewalekar, having secured second highest votes. Although the Petitioners have relied on the decision of the Division Bench of this Court, in the case of Kishor Kashinath Patil vs. State of Maharashtra 2005 Mh. L. R (2) 787, which has considered similar objection of maintainability of the Petition on the basis of Article 243 ZG(b) of the Constitution of India including the purport of relief of quo-warranto, and that the contesting candidate and voters from the constituency have right to resort to Election Petition. However, considering the fact that the Petitioner in the first Petition has already filed Election Petition, not only to challenge the election of Dewalekar but also for further relief of declaring that she has been duly elected, having secured second highest votes in the election, we do not deem it proper to exercise jurisdiction under Article 226 of the Constitution of India, so as to grant those reliefs. Moreover, in addition to the said remedy, it is open to the Appropriate Authority to initiate action on the assumption that Dewalekar has deemed to have vacated his 33 of 38
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office of Municipal Councillor, which is reserved for OBC category. The said Authority will be free to direct Dewalekar to deposit the amount availed by him from the State Exchequer for the relevant period in his capacity as Municipal Councillor of Ward No. 30, if so advised.
25. The principal argument of the Respondents, in particular the Government Pleader, was that the State Government was competent to issue the impugned Government Resolution dated 19th July, 2011 in view of liberty given to the State Government in paragraph 52 of the decision in Mahadeshwar's case (supra). Paragraph 52 of the decision in Mahadeshwar's case reads thus:
"52. The question is: what would be the cascading effect on the persons who have already taken benefit either on the basis of impugned communications or Government Resolutions
dated 9th August, 1995, 21st August 1996 and Government Circular dated 20th June, 2008. we were informed that large number of persons were likely to be affected, who have already taken benefit as belonging to OBC covered by Entry No. 190 of the original list. We express no opinion in that regard and leave it to the wisdom of the State Government to take appropriate measures as may be advised."
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26. On a bare perusal of the above quoted observation, it is unfathomable that the State Government could have validated the concession or benefit availed by the persons belonging to Vaishya Wani and Kulwant Wani as belonging to OBC, by issuance of Government Resolution dated 19 th July, 2011. For the reasons recorded hitherto, we have no hesitation in taking the view that the liberty given to the State Government, to take appropriate measures, necessarily meant that the State Government must enact a law, to be passed by the Legislature, for validating the concession and benefit already availed by the concerned persons belonging to Vaishya Wani and Kulwant Wani as OBC, during the relevant period. That cannot be done by a Government Resolution.
27. Even the argument of the Respondents that the State Government had taken further steps of forwarding the proposal to the Backward Class Commission or that the Backward Class Commission has instituted survey and would soon prepare report, will be of no avail. Assuming that the Backward Class Commission recommends inclusion of Vaishya Wani and Kulwant Wani in the list of OBC category, that could be done by the State Government, 35 of 38
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if at all, only with prospective effect and not retrospectively. Whether retrospective effect can be given to the recommendation made by the Commission by way of law passed by the legislature, is a matter to be considered by the State Government. Suffice it to observe that the issue regarding inclusion of Vaishya Wani and Kulwant Wani castes in the list of OBC is pending with the Backward Class Commission does not take the matter any further.
28. Taking any view of the matter, therefore, both these Petitions must partly succeed. We accordingly pass the following order:
ORDER
(i) Rule is made partly absolute.
(ii) We declare that the highlighted portion of the preamble; paragraphs 1, 2 and 5 in its entirety; and highlighted portion of paragraph 3 of the Government Resolution dated 19 th July, 2011, is quashed and set aside being illegal and unconstitutional. (iii) The Caste Certificate issued by the Appropriate Authority and the Caste Validity Certificate issued by the Caste Scrutiny Committee, declaring Dewalekar as belonging to OBC are 36 of 38
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declared as non-est from its inception and the same are quashed and set aside.
(iv) The concerned Court is directed to expedite the hearing of Election Petition filed by the Petitioner in the first Writ Petition (Chaitrali Prakash Borhade). The same be finally disposed of preferably before 13th August, 2012. Although, that Court may declare the election of Dewalekar as invalid, yet, whether the Petitioner in the Election Petition should succeed in getting further relief of declaration that she is duly elected in place of Dewalekar, having secured second highest votes, is a matter to be considered on its own merits in accordance with law. All questions in that behalf are left open.
(v) The Petitioner in first Writ Petition and Dewalekar shall appear before the Concerned Court where the election petition is pending, on 15th June, 2012 at 11.00 a.m., when appropriate direction can be issued in the Election Petition for early disposal thereof. The Petitioner in the Election Petition and Dewalekar shall extend full cooperation to the concerned Court for early disposal of the said election Petition.
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(vi) The Appropriate Authority shall forthwith initiate action, on the basis that Dewalekar has vacated his office in view of this decision, but shall not hasten the process of filling in that vacancy, until the decision of the Court in pending Election Petition - wherein further declaration is sought by the Petitioner (in Election Petition) that she is duly elected in place of Dewalekar.
(vii) Rule made absolute on the above terms with cost. (S.S. SHINDE, J.) (A.M. KHANWILKAR,J.) 38 of 38
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