The Petitioners are determined to prove that their claim, which the Scrutiny Committee rejected, is valid. The Petitioners have challenged orders dated 30.12.2020 and 18.11.2020 passed by the Respondent- Scheduled Tribes Caste Certificate Scrutiny Committee, Amravati, invalidating the caste certificate that they belong to Thakur-Scheduled Tribe, which is an entry at Serial No.44 in the Constitution (Scheduled Tribes) Order, 1950. The Learned Judges A.S. CHANDURKAR AND ANUJA PRABHUDESSAI, J.J., pronounced this Judgment on 12.01.2022 in M.S. ANITA D/O SANJAY CHAVAN V. THE SCHEDULED TRIBES CASTE CERTIFICATE SCRUTINY COMMITTEE.

The Sub-Divisional Officer, Washim, awarded caste certificates to the petitioners from the Thakur-scheduled tribe. The Petitioners’ caste claim was forwarded to the Scrutiny Committee. The Petitioners cited several pre-constitutional texts and court rulings upholding the caste claim of close relatives. The Scrutiny Committee threw the papers out because, aside from the Thakur-Scheduled Tribes, there are ‘Thakur’ in other groups, necessitating the Petitioners’ establishment of a socio-cultural affinity test.

It is held that the Petitioner failed to prove ethnic and racial ties with existing Thakur-Scheduled tribes in Maharashtra through the social, cultural affinity test. The Committee did not rely on previous decisions in which this Court validated the caste claims of the Petitioners’ close family members based on suppression of the material fact that the Scrutiny Committee invalidated the caste claim of their paternal uncle Vijay and the challenge to this order was dismissed by the Division Bench of this Court in Writ Petition No.447 of 2002.

Mr. Parsodkar, experienced counsel for the Petitioners, contends that the pre-independence papers have a high level of probative value in proving the Petitioners’ caste claim. He further claims that this Court has recognized the caste claim of the Petitioners’ immediate relatives. As a result, the Scrutiny Committee was not justified in throwing out the papers and dismissing the Petitioners’ claim.

Ms. Mehta, learned AGP, contends that in the instance of Vijay s/o Ramchandra Chavhan (above), this Court affirmed the Scrutiny Committee’s Judgment and dismissed Vijay’s, the Petitioners’ paternal uncle’s, Thakur tribal claim. This Judgment was not brought to the Court’s attention, and as a result, the ruling approving the caste claim was gained via deception. As a result, she claims that the previous judgments cannot be used to decide the Petitioners’ caste claim.

According to the records, the Petitioners provided their respective fathers’ School Leaving Certificates, Madhukar Ramchandra Chavhan and Sanjay Ramchandra Chavhan, on which their caste is indicated as ‘Thakur.’ The Petitioners also submitted an extract from their grandpa Ramchandra’s 1943 school register, in which his caste is marked as ‘Thakur.’ Their great-grandpa Narayan’s caste is likewise recorded as ‘Thakur’ in an excerpt from his School Register and School Leaving Certificate.

In this case, the Petitioners presented the Scrutiny Committee with pre-constitutional records indicating their forebears’ caste as ‘Thakur.’

Although the Petitioners provided a complete genealogical tree, the Committee dismissed the documents with a cursory observation that the Petitioners had not established that the record holders are from the same family, with the additional statement that the said caste is also found in other communities.

In the case, Prakash s/o Shrawan Deore V. Scheduled Tribe Certificate Scrutiny Committee, the Court had taken judicial notice of the fact that the Scrutiny Committees have a habit of rejecting claims despite the presence of numerous genuine documents on file and despite the legal position being explicitly clarified by the Hon’ble Apex Court as well as the Division Benches of this Court’s judgments. However, rather than adopting the binding precedent, the Committees continue to repeat the same arguments deemed illegal, even after the Court has condemned such an attitude and approach.

After reviewing the arguments of both sides, the Learned Judge contends that the Committee’s arguments for dismissing the Petitioners’ caste claim are inherently unsustainable.

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Reviewed by Rangasree

The petitioner and respondent no.4 serve as Headmaster and Assistant Teacher, respectively, at the school run by respondent no.3. The Respondent was distressed as he felt he was senior to the Petitioner and should have been given the position of Headmaster. The Learned Judge A.S. CHANDURKAR J pronounced this Judgement on 19.01.2022 in SHRI NILDHWAJ MOTIRAMJI KAMBLE V. THE STATE OF MAHARASHTRA.

The Petitioner was hired as an Assistant Teacher on September 9, 1985, whereas respondent No. 4 was hired as an Assistant Teacher on December 11, 2002. The Education Officer gave his approval to their positions. In the seniority list generated for the years 2017-18 and 2018-19, the Petitioner was indicated to be senior to Respondent no. 4. The Petitioner was assigned Serial Number 1 in the 2018-19 seniority list, whereas Respondent No. 4 was assigned Serial Number 6. The Management passed a decision on April 30, 2018, elevating the Petitioner to the position of Headmaster, effective May 1, 2018. As a result, the Petitioner began serving as Headmaster on May 1, 2018, and his appointment was authorized by the Education Officer (Secondary) on May 17, 2018. Respondent No. 4 contends that his placement on the seniority list for the 2018-19 fiscal year was erroneous and that he should be shown to be senior to the Petitioner. As a result, on July 31, 2018, respondent no. 4 communicated to Management, requesting proper placement in the seniority list.

The Education Officer (Secondary) gave a copy of such representation. Based on a Government Circular dated 03.05.2019 and communication from the Office of the Director of Secondary and Higher Education dated 27.05.2019, it appears that on 12.06.2019, the Education Officer (Secondary), acting under Rule 12 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, issued an order holding that respondent no.4 was senior to the Petitioner.

On the same day, the Education Officer (Secondary) asked Management to submit a proposal with responder no. 4 as Headmaster for approval. The Petitioner objected to such a directive in communications dated 03.07.2019 and 04.07.2019. The Petitioner filed this writ petition after discovering that the Office of the Education Officer (Secondary) had not responded to the same.

According to Shri Prashant Thakare, learned counsel for the Petitioner, the Education Officer (Secondary) had no jurisdiction to hear any grievance relating to the seniority list for the year 2018-19 under Rule 12 of the said Rules after the Management had promoted the Petitioner based on such seniority list. According to the lawyer, the Education Officer has authority to hear any grievance or disagreement in the issue of inter se seniority only until the Management has acted on the matter and implemented any promotion. A person who is aggrieved by a Management order of advancement must file an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 to dispute the promotion charge.

On the case grounds, it was argued that the Petitioner had been correctly proven to be senior to respondent no.4 since 2017-18 and that respondent no.4’s claim was not entitled to be accepted. As a result, it was argued that the disputed communications dated June 12, 2019, should be thrown out.

The statements mentioned above were contested by Shri Akshay Naik, learned counsel for respondent no.4. According to the Counsel, the Education Officer (Secondary) directed the Management to treat respondent no.4 as senior to the Petitioner because it was discovered that the Petitioner’s initial placement in the seniority list was incorrect and that the Education Officer (Secondary) found that the respondent no.4 was senior to the Petitioner after noticing the error. The Education Officer (Secondary) determined that the Petitioner’s initial placement based on Government Circulars dated 24.01.2017 and 14.11.2017 was wrong since the earlier two Government Circulars had been removed by a subsequent Government Circular dated 03.05.2019.

When the circumstances of the case are considered, it is clear that the Petitioner was proven to be senior to respondent no.4 in the seniority list for the years 2017-18 and 2018-19. The Education Officer (Secondary) approved the Petitioner’s appointment as Headmaster on May 17, 2018. The permission was set to take effect on May 1, 2018. It is undeniable that the Education Officer (Secondary) elected to hear the inter se seniority dispute between the petitioner and respondent no.4 after that. Against this backdrop, the Education Officer (Secondary) issued the impugned communications on June 12, 2019.

Given the above-mentioned legal position, it is immediately apparent that the Education Officer (Secondary) lost jurisdiction to determine the inter se seniority between the petitioner and respondent no.4 after the Management promoted the Petitioner to the post of Headmaster on 30.04.2018 and the Petitioner took charge of that post on 01.05.2018. Thus, it is evident that the challenged communications dated 12.06.2019, in which respondent no.4 is determined to be senior to the Petitioner, are the result of an exercise in futility.

The Learned Judge is unable to record a finding that Respondent no. 4’s original placement in the seniority list at Serial Number 6 was inaccurate. The same was adequately instructed to be amended by showing respondent no.4 at Serial Number 1 after hearing both Counsels. This would necessitate competent adjudication, and we believe that the Court’s previous rulings adequately address the problem. If the Petitioner’s elevation to Headmaster causes respondent no.4 to be displaced, he may seek redress under Section 9 of the Act.

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Reviewed by Rangasree

Whether an admission contained within a reply, constituted an admission and gave rise to an outstanding liability, was considered by the NATIONAL COMPANY LAW APPELLATE TRIBUNAL, CHENNAI BENCH, before a bench consisting of Justice M. Venugopal, Member (Judicial); and Kanthi Narahari, Member (Technical), in the matter of Mrs. Jayanthi G. Ravi vs. M/s Chemizol Additives P Ltd. [COMPANY APPEAL (AT) (INSOLVENCY) NO. 553/2020], on 03.01.22.

The Appellant/Applicant/Financial Creditor has preferred the present appeal before this Tribunal being dissatisfied with the order dated 28.01.2020 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench) in dismissing the Application. In the instant case, the amounts are stated to be given at a time when the Petitioner was a Director in the Respondent Company, for the purpose of keeping the Company running and meeting the Company’s funding requirements. As per the Petition, the Petitioner herself informed the Board about the fund requirement. That was much in the interest of the Petitioner herself as of the Respondent Company, as she was a Director. She then advanced the amounts on 01.12.2016 and 18.01.2017 in two tranches, totalling Rs. 4.10 crore. In the Board Meeting of 23.02.2017, another Director Sri S Jairam, a close associate and statutory auditor in other Companies in which the Petitioner was a Promoter Director and later in the Respondent Company as well, only “informed” the Board that the amounts had been received and were to be repaid in 6 months and bore an interest of 7.5% pa. There was therefore no Agreement or prior approval for the borrowing or for any terms and conditions, nor any other document to establish the debt. The amounts contributed were for the operational expenses of the Company. The amounts were not demanded or borrowed by the Company from the Petitioner. In this entire period, the Petitioner herself was the key person in the Company, chairing the Board meeting, and signing its minutes. All the decisions were virtually taken by the Petitioner unilaterally –decision on requirement of funds, information of payments and terms and intimation of the same, and adoption of Resolutions about each of these events. It is also seen that in the Resolution adopted on 06.04.2017, when the Petitioner was still a Director, the period of return is stated to be 60 days as per the Petition, and not 6 months as mentioned elsewhere. Similarly, the two amounts of Rs. 50 lakh each diverted immediately after receiving the above amounts in the Company to another non-existent Company, in which the Petitioner had been a Director, without any approval, even though the amounts were stated to be given to the Respondent company to meet its expenses.

It was argued that even though she may have given amounts as a Director, to meet the expenses of the Company, it does not necessarily make the amounts owed to her a ‘debt’ in the sense conceived in the Code. Debt, as defined under the Code in Section 3 (11) means a liability or obligation in respect of a claim which is due from any person, and includes a financial debt or an operational debt. Such a debt would arise from a claim, as also defined in Section 3 (6), i.e. from a right to payment in the hands of the Creditor. It was further asserted that it was also not a Financial Debt as per the definition given in section 5 (8) of the Code, as the amounts were not “money borrowed” by the Corporate Debtor. In addition, it was highlighted that there as lack of clarity as to whether it was in the nature of a Financial debt or an Operational debt. In light of precedents, it was argued that it is settled position of law that the provisions of the Code cannot be invoked for recovery of outstanding amount but can be invoked to initiate CIRP for justified reasons as per the Code.

Challenging the order of dismissal dated 28.01.2020 passed by the Adjudicating Authority (NCLT, Bengaluru Bench) The Learned Counsel for the Appellant contents that the impugned order passed by the Adjudicating Authority dated 28.01.2020 is an invalid and illegal one and that the Adjudicating Authority wrongly came to the conclusion that there was a dispute as to the purpose for which the amount was given. In light of precedents, it was argued by the appellant that the question whether the Board of Directors of a company could subsequently ratify an invalid act and validate it retrospectively is no more res integra. It was further asserted that the instant case relates to a ‘Financial Debt’ and it does not pertain to the difference between a ‘Secured’ and an ‘Unsecured Creditor’.

The Tribunal held that the Reply ‘clinchingly’ establishes that the Respondent/Company had admitted its liability to repay the ‘Principal sum’ and ‘Interest’, and held that ‘Admission’ is the best piece of evidence in Law. It was noted that especially the Respondent/Company had sought time to repay Loan and Interest thereon, in one payment by 30.04.2019 and taking into account all these cumulative facts in an integral manner, this ‘Tribunal’ comes to an inevitable, inescapable and consequent conclusion that the ‘Appellant/Financial Creditor’ had established the ‘Financial Debt’ and ‘Default’ being the pre-requisites for admitting the ‘Application’ (under Section 7 of the I & B Code, 2016), filed by the ‘Appellant’. Viewed in that perspective, the contra views arrived at by the ‘Adjudicating Authority’ that the ‘Loan’ was not a ‘Financial Debt’, as the amounts were not ‘money borrowed’ by the ‘Corporate Debtor’ and that the borrowing may not constitute a ‘Financial Debt’ that could be enforced as per the I & B Code, 2016 though the ‘Borrowing’ may be reflected in the ‘Balance Sheet’ as pointed out by the ‘Petitioner (Appellant)’ etc; are legally ‘invalid’ and ‘untenable’. Looking from that angle, this ‘Tribunal’ interferes with the ‘impugned order’ dated 28.01.2020 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench) and set aside the same, to promote substantial cause of justice. Consequently, the appeal was held to succeed.

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Judgement reviewed by Bhargavi