Vinaysingh Vs. State of Maharashtra & Anr.
EmailAppeal: Civil Appeal Nos. 5636-5637/2001
Petitioner: Vinaysingh
Respondent: State of Maharashtra & Anr.
Apeal: Civil Appeal Nos. 5636-5637/2001
Judges: Ruma Pal & Arijit Pasayat, JJ.
Date of Judgment: May 09, 2002
Head Note:
Administrative Law
Administrative matter – Question of state government’s power to review the decision of divisional commissioner – Caste certificate – Approval by divisional commissioner – Review by state government – High Court in writ proceeding on basis of earlier decision that state government had no power to review – Still writ dismissed. Held that having proceeded on basis of earlier decision High Court should have allowed the writ. Orders set aside and remand made to decide afresh.
Held:
The High Court in the impugned judgment appears to have proceeded on the basis that the decisions were correct and applicable. Having come to this conclusion, it was incumbent on the High Court to have allowed the writ petition and set aside the order of the state government on the ground that the state government had no jurisdiction to review the order of the divisional commissioner. It was not open to the High Court on the writ application of the appellant to have itself taken a decision as if it were an appellate authority and discharged what in effect was a power of review of the divisional commissioner’s order. (Para 6)
JUDGEMENT:
ORDER
1. The appellant before us had been issued a caste certificate on 17th August, 1982 certifying him as Rajput Bhamta (VJ). The certificate was placed before the scrutiny committee which came to the conclusion that the appellant could not establish his caste claim as belonging to Rajput Bhamta and, therefore, his caste certificate was treated as invalid.
2. In terms of government resolution dated 9th November, 1981, the appellant preferred an appeal before the divisional commissioner. By an order dated 4th April, 1986, the divisional commissioner allowed the appeal and a declaration was given that the appellant belonged to the Rajput Bhamta caste. Armed with this caste certificate, the appellant obtained admission into the medical college on 28th April, 1986. While he was pursuing his studies as a medical student, the question of his caste was taken up suo motu by the government of Maharashtra in purported exercise of powers under the government resolution dated 9th November, 1981 for the purpose of reviewing the decision of the divisional commissioner. By an order dated 11th May, 1988, the deputy secretary, social welfare, cultural affairs, sports and tourism department, government of Maharashtra set aside the decision of the divisional commissioner. The appellant challenged the decision of the state government by way of a writ application under Article 226 on 2.6.1988. The High Court granted an interim order, staying the operation of the state government’s decision. The writ petition was ultimately disposed of on 19th June, 2001. In the meanwhile, the appellant had completed his MBBS course as also his MD course and is now practising as a doctor.
3. The appellant has assailed the decision of the High Court primarily on the ground that the High Court was bound to follow its earlier decisions to the effect that the state government did not have the power to review the divisional commissioner’s orders. Our attention has been drawn to an unreported decision of the Bombay High Court in this connection.
4. It is further submitted by learned counsel for the appellant that in the impugned order the division bench did not seek to disagree with the earlier view taken by it regarding the ambit of the state government’s power, if any, to review and that it had wrongly proceeded to determine the question whether the appellant belonged to the Rajput Bhamta caste or not.
5. Learned counsel appearing on behalf of the respondent-state has submitted that the earlier unreported decisions of the Bombay High Court were not in connection with the government resolution dated 9.11.1981 under which the state government has exercised the power of review in the present case. It is stated that the unreported decision was on the basis of the government’s resolution dated 9th November, 1981. As such, it is contended that the High Court was not bound to follow its earlier decisions.
6. We have considered the submissions of the parties. Learned counsel for the respondents may be correct that the earlier decisions were based on a different resolution and that was a material distinction with the present case. However, it does not appear that the High Court in the impugned judgment had sought to distinguish its earlier decisions on that ground. Indeed, it appears to have proceeded on the basis that the decisions were correct and applicable. Having come to this conclusion, it was incumbent on the High Court to have allowed the writ petition and set aside the order of the state government on the ground that the state government had no jurisdiction to review the order of the divisional commissioner. It was not open to the High Court on the writ application of the appellant to have itself taken a decision as if it were an appellate authority and discharged what in effect was a power of review of the divisional commissioner’s order.
7. We think it is appropriate in the facts and circumstances of the case to set aside the judgment of the High Court and remand the matter back to the High Court for rehearing the writ petition which we accordingly direct. It will be open to the parties to raise all issues not only as to the question of the jurisdiction of the state government to review the order of the divisional commissioner, but also if necessary on the merits of the state government’s decision.
8. During the pendency of the appeal before us the operation of the impugned judgment has been stayed. Since we have set aside the decision of the High Court, the operation of the state government’s order dated 11 May, 1988 shall remain stayed until the matter is heard and disposed of by the High Court. There shall be no order as to costs.
9. The appeals are disposed of accordingly.
1. The appellant before us had been issued a caste certificate on 17th August, 1982 certifying him as Rajput Bhamta (VJ). The certificate was placed before the scrutiny committee which came to the conclusion that the appellant could not establish his caste claim as belonging to Rajput Bhamta and, therefore, his caste certificate was treated as invalid.
2. In terms of government resolution dated 9th November, 1981, the appellant preferred an appeal before the divisional commissioner. By an order dated 4th April, 1986, the divisional commissioner allowed the appeal and a declaration was given that the appellant belonged to the Rajput Bhamta caste. Armed with this caste certificate, the appellant obtained admission into the medical college on 28th April, 1986. While he was pursuing his studies as a medical student, the question of his caste was taken up suo motu by the government of Maharashtra in purported exercise of powers under the government resolution dated 9th November, 1981 for the purpose of reviewing the decision of the divisional commissioner. By an order dated 11th May, 1988, the deputy secretary, social welfare, cultural affairs, sports and tourism department, government of Maharashtra set aside the decision of the divisional commissioner. The appellant challenged the decision of the state government by way of a writ application under Article 226 on 2.6.1988. The High Court granted an interim order, staying the operation of the state government’s decision. The writ petition was ultimately disposed of on 19th June, 2001. In the meanwhile, the appellant had completed his MBBS course as also his MD course and is now practising as a doctor.
3. The appellant has assailed the decision of the High Court primarily on the ground that the High Court was bound to follow its earlier decisions to the effect that the state government did not have the power to review the divisional commissioner’s orders. Our attention has been drawn to an unreported decision of the Bombay High Court in this connection.
4. It is further submitted by learned counsel for the appellant that in the impugned order the division bench did not seek to disagree with the earlier view taken by it regarding the ambit of the state government’s power, if any, to review and that it had wrongly proceeded to determine the question whether the appellant belonged to the Rajput Bhamta caste or not.
5. Learned counsel appearing on behalf of the respondent-state has submitted that the earlier unreported decisions of the Bombay High Court were not in connection with the government resolution dated 9.11.1981 under which the state government has exercised the power of review in the present case. It is stated that the unreported decision was on the basis of the government’s resolution dated 9th November, 1981. As such, it is contended that the High Court was not bound to follow its earlier decisions.
6. We have considered the submissions of the parties. Learned counsel for the respondents may be correct that the earlier decisions were based on a different resolution and that was a material distinction with the present case. However, it does not appear that the High Court in the impugned judgment had sought to distinguish its earlier decisions on that ground. Indeed, it appears to have proceeded on the basis that the decisions were correct and applicable. Having come to this conclusion, it was incumbent on the High Court to have allowed the writ petition and set aside the order of the state government on the ground that the state government had no jurisdiction to review the order of the divisional commissioner. It was not open to the High Court on the writ application of the appellant to have itself taken a decision as if it were an appellate authority and discharged what in effect was a power of review of the divisional commissioner’s order.
7. We think it is appropriate in the facts and circumstances of the case to set aside the judgment of the High Court and remand the matter back to the High Court for rehearing the writ petition which we accordingly direct. It will be open to the parties to raise all issues not only as to the question of the jurisdiction of the state government to review the order of the divisional commissioner, but also if necessary on the merits of the state government’s decision.
8. During the pendency of the appeal before us the operation of the impugned judgment has been stayed. Since we have set aside the decision of the High Court, the operation of the state government’s order dated 11 May, 1988 shall remain stayed until the matter is heard and disposed of by the High Court. There shall be no order as to costs.
9. The appeals are disposed of accordingly.
