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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO.507/2017 AND WRIT PETITION NO.1211/2017 WRIT PETITION NO.507/2017 Shubham Sharad Gadamade Aged 22 years, "Shivalay Apartments"
Plot No. 218, Reshimbagh,
Opp: C.P. & Berar Vyayamshala,
Nagpur-440 009. ..PETITIONER
v e r s u s
1) The Scheduled Tribe Certificate
Scrutiny Committee, Nagpur
Through its Member-Secretary
Adivasi Vikas Bhavan
Giripeth, At & Po: Nagpur-440 010.
2) State of Maharashtra
Through its Principal Secretary
Tribal Development Department
Mantralaya Extension
Madam Cama Road, Mumbai-400 032.
3) The Directorate of Technical Education
Maharashtra State
Through its Regional Directorate
Joint Director Technical Education
Regional Office,
Govt. Polytechnic Campus,
Sadar Bazar, Nagpur-440001.
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4) Principal,
Yashwantrao Chavan College of Engineering
Hingna Road, Wanadongri, Nagpur 441110. ...RESPONDENTS ...........................................................................................................................
Shri S.P.Khare, Adv. for petitioner Smt.Ketaki Joshi, A.G.P. for Respondent nos.1 to 3 Shri P.D. Meghe, Advocate for Respondent no.4 ............................................................................................................................
WRIT PETITION NO.1211/2017
Mr. Vineet s/o Vilas Gadmade
Aged 22 years, occu; student
R/o Flat No.204, Baba Santosh Arkade
Ganesh Nagar, Nagpur. ..PETITIONER
v e r s u s
1) The Scheduled Tribe Caste Certificate
Scrutiny Committee, Nagpur
Through its Deputy Director and
Member-Secretary,Giripeth, Nagpur.
2) Karmaveer Dadasaheb Kannamwar College
of Engineering Great Nag Road
Nandanwan, Nagpur- 440009
Through its Principal.
3) The Registrar
Rashtrasant Tukdoji Maharaj
Nagpur University, Nagpur.
4) Sub-Divisional Officer
Umred Dist. Nagpur. ...RESPONDENTS
...........................................................................................................................
Shri Ananta Ramteke, Adv. for petitioner Smt.Ketaki Joshi, A.G.P. for Respondent nos.1 & 4 Smt. Dashputre, Adocate for Respondent no.3-University ............................................................................................................................
::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:04 ::: wp.507.17+ 3 CORAM: B.P . DHARMADHIKARI & MRS . SWAPNA JOSHI, JJ . DATED : 21 March, 2017 st ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
1. We are hearing arguments in these matters since last 3 to 4 days. Both these matters arise out of a common order passed by Scrutiny Committee, namely, Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur Division, Nagpur in Case Nos. 66 and 283 of the years 2011-12. The petitioners-Shubham and Vineet are cousins.
2. Writ Petition No.507/2017 is filed by Shubham, on 21.12.2016 and, on 25.01.2017 this Court issued notice. Respondent no.4-College was directed to arrange for and to return the documents of petitioner or then point out the reasons for not returning the same, by filing an affidavit. Shubham has completed his education i.e. Bachelor of Engineering (B.E.) but his result has not been declared and the documents are withheld.
3. The other petitioner-Vineet's case is also identical and though he has appeared in the examination, his result is also not declared as yet.
4. Both these petitioners though aware that their matter has been decided by common order by Scrutiny Committee, have not disclosed to this Court that his brother has filed the petition.
5. It is counsel for respondent no.1-Committee which after getting ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 ::: wp.507.17+ 4 knowledge from the Officer of Scrutiny Committee, during hearing, pointed out this fact and accordingly, we directed both the matters to be placed together.
6. Adv. Khare has pointed out that there are already eight validities given to blood relatives and those validities have been discarded only mechanically. According to him, the approach of the Scrutiny Committee in such matters is rather pedantic and without looking into the decisions of the Hon'ble Apex Court in Civil Appeal No.5270/2004, the impugned order has been passed. He has relied upon the judgment of Hon'ble Apex Court in the case of State of Maharashtra vs. Mana Adim Jamat Mandal,reported at (2006) Vol.4 SCC Page 98, and also pointed out the Division Bench judgment of this Court, which formed subject-matter of consideration in that judgment of Apex Court.
7. Adv. Khare argues that Government Resolution (G.R.) which was found invalid by that Division Bench i.e. dated 24.04.1985 has correctly described the traits and customs to be applied,to find out whether person belongs to 'Mana' scheduled Tribe or not. Those traits then found invalid could not have been overlooked by Scrutiny Committee after 'Mana' has become an independent entry as Scheduled Tribe by severing its connection with Gonds. He contends that thus wrong norms have been applied and affinity has been judged on incorrect touchstones. ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 :::
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8. He submits that a Book titled 'People of India (Maharashtra)' Volume XXX Part Two published by Anthropological Survey of India, ought to have been looked into and failure to do so again has resulted in denial of justice. He contends that the test of primitiveness was relevant in 1935 but with the progress and advancement in society, is not now that relevant. He has taken us through various vigilance reports on record, to urge that those reports are grossly insufficient and do not record any finding on affinity.
9. Though three vigilance reports to which our attention has been invited i.e. dated 09.07.2012, 26.08.2015 and 08.08.2016 are not filed as part of petition, same have been made available to this Court during arguments. After show cause notices and reports were made available for perusal of this Court with replies thereto submitted by petitioners, we had adjourned the matter as requested by learned A.G.P. to enable her to obtain necessary instructions. Hearing was resumed thereafter.
10. Adv. Ananta Ramteke, appearing for petitioner in Writ Petition No.1211/2017 has adopted arguments of Adv. Khare and, in addition, has invited our attention to Division Bench judgment of this Court, in the case of Mayur Nannaware vs. Scheduled Tribe Caste Certificate Scrutiny Committee and others, reported at 2014 (Vol.1) Mh.L.J. 437 and, Apoorva Nichale vs. Divisional Caste Certificate Scrutiny Committee, reported at 2011 (Vol.2) BCR 824. He contends that in view of the validities already available in the ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 ::: wp.507.17+ 6 family, when the vigilance inquiries were already conducted, it was not open to Scrutiny Committee to undertake that exercise again or to reach a different conclusion on the basis of very same documents. He further adds that the validities already awarded should have been acted upon and the petitioners were not therefore required to do anything more.
11. Learned A.G.P. has taken us through the Division Bench judgment of this Court in the case of Mana Adim Jamat Mandal vs. State of Maharashtra and others, reported at 2003 (Vol.3) Mh.L.J. 513, in an effort to distinguish that judgment. It is contended that after G.R. dated 24.04.1985 was found bad and unsustainable, the Scrutiny Committee has rightly looked into affinity angle. She points out that several opportunities were given to petitioners and there have been five vigilance enquiries, in view of documents produced on record from time to time. Few documents were even found interpolated by Vigilance cell. In some documents, caste was found recorded as 'Mani'. In this situation, merely on the strength of documents caste claim could not have been decided and, therefore, affinity test has been applied. She invited our attention to exercise of vigilance as is apparent in three vigilance reports, mentioned supra. She contends that statements of elderly members in the family were recorded. Information about traits, customs was obtained and then a show-cause notice was issued to both the petitioners. Petitioners have given their replies to the same, but have not tendered any evidence and ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 ::: wp.507.17+ 7 avoided to discharge the burden cast upon them by Section 8 of the Act No.XXIII of 2001. She therefore submits that as there is no jurisdictional error or perversity in impugned orders, the petitions need to be dismissed.
12. While replying to arguments of learned AGP, Shri Khare earnestly requested for one more opportunity to the petitioners. According to him, petitioners have appropriately replied to show cause notice after due vigilance report and they have pointed out on each occasion the material in their support. He, upon instructions, states that petitioner-Subham is ready and wiling to deposit the difference /balance amount of tuition fee and others fees for 2013-14 session as open category student, if his result is declared and he is permitted to prosecute his studies further. He also states that the petitioners were under the impression that procedure prescribed in law is being followed and therefore did not, at any time, volunteer to adduce evidence as expected by Section 8 of Act No.XXIII of 2001. He submits that petitioners have acted as per legal advice. He also submitted, in this situation, reasonable amount is ordered to be deposited with the Scrutiny Committee as costs, only to show their bona fides, petitioners are ready and willing to do so.
13. Learned A.G.P. has strongly opposed any remand. She contends that several opportunities have been given to petitioners and they have also utilized it to the hilt. In this situation, ordering remand at this stage would ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 ::: wp.507.17+ 8 be putting a premium on their nefarious designs. She points out that on previous occasion not only writ petition but contempt petition was also filed for expeditious disposal of caste claim and still appropriate evidence was not adduced. Our attention is invited to 2003 Rules framed under Act No.XXIII of 2001 to urge that therein the procedure has been prescribed and that procedure has been followed by the Committee. As there is no challenge to any statutory provisions and as 2003 Rules are subject to Section 8, the order of Scrutiny Committee deserves to be maintained.
14. Adv. Ramteke has pointed out that caste 'Mani' and 'Mana' are synonymous and imply one and same thing. Inviting attention to impugned order of Scrutiny Committee, he states that certificate at Sr.No. 4 looked into paragraph 7 there, shows an entry of a male child born to one Dasru Kisan. The date of birth is 13.07.1923 and there caste is recorded as 'Mana'. Certificate at Sr.No.16 in that paragraph is about death of very same Dasru Kisan. That death has taken place on 14.06.1957 and while recording his caste, the word 'Mani' has been employed. He submits that person in certificate at Sr.No. 4 and at.Sr. No. 16 is same and his case therefore cannot be different. According to him, in this situation, had petitioners been given a proper opportunity, they could have pointed out all relevant aspects to the Committee.
15. We have perused the order of the Scrutiny Committee with the ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 ::: wp.507.17+ 9 assistance of respective counsel. The document at Sr.No.4 about male child born to Dasru Kisan and document ar Sr.No.16 about death of Dasru are not found to be tampered or interpolated. As such, caste noted therein could not have been different. Findings of Committee in para 21(d) show an undisputed entry 'Mana' in the year 1922 to 1928. Other entries of relatives of petitioners during said period are 'Mani'. Old records containing these entries are found "intact" by the Scrutiny Committee.
16. In the light of arguments advanced, we have also considered the scheme of 2012 Rules framed under Act. No.XXIII of 2001. There while dealing with report of vigilance cell and issues to be dealt with as also in Rule 17 while dealing with the procedure of Scrutiny Committee, the relevant stages are prescribed. Under Rule 17(1) Scrutiny Committee has to first ascertain whether it has received complete caste claim and necessary information. Under sub-rule (6) if Committee is satisfied after perusal of caste claim about the genuineness of Scheduled Castes or Scheduled Castes converts to Buddhism or Denotified Tribes or Nomadic Tribes or Other Backward Class and Special Backward category claim, the Scrutiny Committee has to forthwith issue validity certificate without enquiry by Vigilance cell. Under Sub-rule (7), if after such verification the Committee finds that documents do not satisfy or conclusively prove that status, it has to refer the caste claim to Vigilance cell for carrying out suitable enquiry. The proviso ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 ::: wp.507.17+ 10 thereto specifically stipulates that finding recorded by vigilance cell are not binding on Scrutiny Committee as said enquiry by Vigilance is only meant for its internal assistance. The Scrutiny Committee has to record its reasons for discarding the report of Vigilance cell. Sub-rule (8) and sub-rule (9) are about the steps to be taken by Vigilance cell. Sub-rule (10) then speaks of cases which are referred to vigilance cell. If after receipt of the report of Vigilance cell, the Scrutiny Committee is satisfied about genuineness of status of the applicant, it can decide matter finally by written decision and forward copy of that decision and validity certificate to the concerned authorities or authority. Sub-rule (11) (i) envisages case in which Scrutiny Committee is not satisfied about the claim of applicant. In that contingency, it has to call upon applicant to prove his caste claim by discharging his burden as contemplated under section 8 of Act No. XXIII of 2001 and for that specific purpose, form i.e. Form No.25 has been prescribed. Under sub-rule (ii) if after such a notice is issued, an applicant requests through written application for copies of Vigilance enquiry report or any other document, the request can be granted. In present matter, we need not dwell upon further procedure.
17. Form No.25 reveals that the Committee, while issuing notice to applicant to discharge his burden by adducing evidence under section 8 of Act No.XXIII of 2001 is required to disclose its findings on Vigilance cell. The Form then shows that therein after disclosing those reasons, the finding of ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 ::: wp.507.17+ 11 Committee that it is not satisfied about applicant's caste appears and the claimant/ applicant is informed accordingly. The later paragraph in Form No. 25 then invites his attention to Section 8 of the Act and of burden cast upon him thereby.
18. Though these rules are not applicable to the verification of caste claim of present petitioners and procedure for verification is prescribed in 2003 Rules framed for that purpose, it is admitted position, the status of vigilance report in present matter, is not different. The vigilance report even in present matter is only for assistance of Scrutiny Committee.
19. On 24.02.2017, while deciding Writ Petition No. 6449 and 6450 both of 2016 filed by one Sk.Hamid Sk. Hanif in relation to 'Lohar' (V.J.{B}) caste, this Court has looked into the scheme of Rule 17 of the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes and Other backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules,2012. Following observations made therein hold good even in present matter.
"(A) Finding recorded and opinion expressed, if any, by the Vigilance Officer are neither binding on Scrutiny Committee nor can be used as evidence, in support of the Claim. (B) Rule 17(6) empowers the Scrutiny Committee to forthwith issue Validity without enquiry by vigilance cell, in appropriate matters.
(C) Other wise, it refers the claim to the vigilance cell under sub-::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 :::
wp.507.17+ 12 rule (7). Finding recorded by the Vigilance Cell is not binding on Scrutiny Committee, as the vigilance inquiry is for providing internal assistance to it but the Scrutiny Committee must record its reasons for discarding the report of the Vigilance Cell which is in favour of the claimant.
(D) Findings of the Scrutiny Committee in Form 25 are only for not accepting the vigilance report when it is in favour of the claimant. (E) Even if the or When the said reports are against the the claimant seeking the validity, reasons for accepting it or additional reasons therefor are required to be communicated. Claimant is not entitled to demonstrate that the such vigilance report is bad and it should have been in his favour.
(F) Similarly, merely because this vigilance report is against the claimant, the validity can not be denied to him. If after grant of opportunity to him in terms of S. 8 of the Act no. 23 of 2001, he succeeds in discharging that burden, validity certificate must be granted to him.
(G) The Scrutiny Committee has to itself appreciate all material and it can not, as an appellate or supervisory authority seat over the vigilance cell and resort to passive application of mind. Errors or mischief, if any, by such vigilance cell officers, therefore can not enure to the benefit of either the claimant like petitioner before us or the objector like the respondent no. 2.
(H) When such findings in Form 25 are communicated, the burden caste upon the claimant by S. 8 of Act no. 23 of 2001 springs into life. As such, he can summon all the witnesses in support of the documents with him or elderly persons to establish his caste claim. Mere conducting cross-examination and showing that the vigilance ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 ::: wp.507.17+ 13 cell acted wrongly in submitting an adverse report or the Scrutiny Committee erred in discarding the favourable vigilance report, is not sufficient to prove the caste.
(I) Object of providing a vigilance inquiry is only to cut short the otherwise elaborate procedure in genuine cases. This summary procedure is possible, when the vigilance report reveals that the caste claim appears to be genuine. In that event also, if the Scrutiny Committee agrees with it, validity can be immediately issued. Otherwise, if records dissent, elaborate procedure needs to be adopted. It has then to fix the matter formally for claimants evidence in support of his caste claim.
(J) When obligation under S. 8 of 23 of 2001 Act springs into life and the claimant has to prove his caste, the vigilance report only remains a document on record of the proceedings not binding on anybody. Mere adverse report on his caste by the vigilance cell can not be used to deny validity without giving the claimant an opportunity to prove his case in terms of S. 8. If he does not use that opportunity, his caste claim can be rejected not because of adverse vigilance cell report but because of his failure to substantiate it. (K) If at that stage, he leads proper evidence in support of his caste, the same may be validated."
20. In this situation, when vigilance enquiry is only for assistance of Scrutiny Committee and, therefore, an internal affair, petitioners cannot succeed in obtaining validity merely by demonstrating that vigilance enquiry was /is faulty. They have to lead evidence in terms of burden cast upon them ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 ::: wp.507.17+ 14 independently and thereby substantiate their caste claim. Unfortunately, in all matters argued before this Court and even in present matter, arguments have been advanced as if by showing that finding of Vigilance cell is bad, the petitioners would be entitled to grant of validity. Having realized this error, the petitioners offered to pay difference/balance in amount of tuition fee and other fees as open category student and also to pay some costs to Scrutiny Committee, to show their bona fides.
21. Here, perusal of record shows some substance in contention of Adv. Khare that at one juncture, the norms prescribed in G.R. dated 24.04.1985 were found valid to judge the status of a person as belonging to 'Mana' Scheduled Tribe. That G.R. is being relied upon by him, to urge that even today those tests are valid. According to learned A.G.P. those tests were in the backdrop of law then prevailing, particularly judgments of Hon'ble Apex Court, in the case of Dina vs. Sukhdeobabu and others, reported at AIR 1980 SC 150. After judgment of Division Bench of this Court and the judgment of Hon'ble Apex Court in the case of State of Maharashtra vs. Mana Adim Jamat Mandal ( supra), it has become clear that those norms ascertained by associating 'Mana' with gonds were not valid. According to her, therefore, reliance upon G.R. dated 24.04.1985 now at this stage is not valid. She also states that the G.R. is already quashed and set aside.
22. Effort to fall back upon G.R. dated 24.04.1985 as recording ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 ::: wp.507.17+ 15 correct tests to decide affinity of 'Manas' needs an in-depth enquiry. Whether 'Mana' as it now stands takes into fold all Mana people or still it is permissible to divide them as tribal Manas and non-tribal Manas. Impact of G.R. Dated 24.04.1985 may call for scrutiny in that backdrop. Whether 'Manas' then looked into on 24.04.1985 constituted a different group then present 'Manas' is the cardinal question. If group subjected to verification is same, the G.R. Dated 24.04.1985 may be valid even now. The Book of Anthropological Survey of India may also throw some light on this aspect.
23. In these matters, after perusal of records, as we find that petitioners were never expressly called upon to discharge burden cast upon them by adducing evidence under section 8 of Act No.XXIII of 2001, we are inclined to grant them one more opportunity. Validities already available cannot be lightly discarded. However considering the previous chequered history and litigation, we saddle upon them costs of Rs.50,000/- (rupees fifty thousand). The petitioners shall deposit that amount with Scrutiny Committee within four weeks from today.
24. It is open to petitioners to pay to their College the difference/ balance in amount of tuition fee and other fees as open category students to their respective Colleges for year 2013-14. If the Colleges receive such amount, the respective college shall then inform the University accordingly and the concerned University shall arrange to declare their results. ::: Uploaded on - 27/03/2017 ::: Downloaded on - 28/03/2017 00:21:05 :::
wp.507.17+ 16 Contingent upon that result and need thereafter, necessary documents including mark-sheets etc. shall be returned by the respective College to the concerned petitioner. If ultimately the caste claim is invalidated, the State Government shall be free to take necessary action for recovery of the amount in terms of Section 10 of Act XXIII of 2001.
25. If the petitioners deposit the amount of costs with Scrutiny Committee as mentioned supra, we direct them to appear before the Committee on 3 rd May 2017 . The Committee shall then extend to them opportunity to adduce evidence, under section 8 of the Act of XXIII of 2001 and attempt to decide the caste claim afresh at the earliest. Only to facilitate this exercise, the impugned order dated 29.09.2016 in both the Writ Petitions is quashed and set aside.
26. Rule is made absolute accordingly.
JUDGE JUDGE
sahare
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