Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6633 of 2014.
1 Akshay Santosh Gandhi, PETITIONER.
age 19 years, residing at
post : Parshwanath General Store,
Akluj Chowk,
Temburni taluka, Madha,
District Solapur
VERSUS.
1 State of Maharashtra,
through : Its Secretary,
Tribal Development Department,
Mantralaya, Mumbai 400 032.
2 Scheduled Tribe Certificate
Scrutiny Committee, Solapur
Division, Solapur through its
Member-Secretary, having its
Solapur Division, District Solapur.
3 Seth Govindji Raoji Ayrvedic
College, 21/A/13, Budhwarpeth,
Samrat Chowk,
Solapur, District Solapur.
4 Sub-Divisional Officer,
Madha Sub-Division at
1/21
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Kurudwadi, District Solapur,
5 Maharashtra University of RESPONDENTS
Health Sciences,
Gangapur Road, Nashik
through : Its Registrar.
Mr. Shailesh Chavan i/by Mr. Milind Deshmukh,
Advocate, for the Petitioner.
Mr. Bhupesh V. Samant, AGP for the Respondents.
CORAM : S.C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
RESERVED ON:- 1st November, 2017.
PRONOUNCED ON:- 22nd November, 2017.
JUDGMENT (PER: SMT. BHARATI, H. DANGRE,J)
1 The present writ petition is filed by the petitioner praying issuance of writ in the nature of certiorari for quashing and setting aside the impugned order dated 28th March, 2014 passed by the two Members of the Scheduled Tribe Certificate Scrutiny Committee, Solapur Division, Solapur ("the Committee" for short) with a further 2/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: direction to issue caste validity certificate in respect of caste certificate dated 5th July, 2012 issued to the petitioner by respondent No.4 as belonging to the caste "Gujjar" (O.B.C.). Pending hearing and disposal of the petition, the petitioner has also prayed for issuance of directions to Respondent No. 3 and 5 not to cancel the admission of the petitioner and continue him to pursue education. 2 The petitioner claims that he belongs to Gujjar Caste which is recognized as OBC in the State of Maharashtra. According to the petitioner, the school record of his father, uncle, grandfather and other relatives from paternal side duly reflect the caste as "Gujjar". According to the petitioner, based on the said documents, the Special Social Officer Madha, Kurduwadi, District Sholapur issued him a caste certificate as belonging to caste Gujjar (OBC 326) on 5 th July, 2012. The said certificate was forwarded for verification to Respondent No.3 Committee and the petitioner participated in the enquiry for its verification and produced voluminous evidence in support of his caste claim. The Committee obtained Vigilance report and also conducted a 3/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: detailed school/home enquiry. A home and school enquiry report was received by the Committee on 10 th December, 2013 and since the Committee was unable to agree with the findings of the said report, a show cause notice was issued to the petitioner and he was afforded an opportunity of hearing on several dates before the Committee. The Committee took a decision on 28 March, 2014 and there was disagreement between the members of the Committee. The Member Secretary validated the claim whereas the Secretary and the Chairman of the Committee invalidated the same. Since decision of the Committee is the decision of the majority, the claim of the petitioner as belonging to caste "Gujjar" was invalidated by order dated 28th March, 2014.
3 We have heard learned Counsel Shri Milind Deshmukh appearing on behalf of the petitioner and also Shri Samant, learned A.G.P. appearing for the respondents.
4 The learned counsel appearing on behalf of the petitioner vehemently argued that the Member Secretary has followed the right course of action in validating the claim of the petitioner and ignoring 4/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: the entries "Jain (Gujjar)" / "Gujjar (Jain)" by observing that "Jain" is not a caste but a religion and the documents which reflected such entries prior to Constitution specifically the entries of 1937-38 are of great probative value and the said entries cannot be construed to mean that there is a caste known as "Jain (Gujjar)" or "Gujjar (Jain)". The learned counsel placed heavy reliance on the document of petitioner's great grandfather Gautam Sakharam Gujjar of the year 1932 which is a lease deed where the caste is mentioned as "Gujjar" and occupation is mentioned as business. According to the learned counsel, the home enquiry supported the claim of the petitioner since the local residents reported that the grandfather, cousin grandfather of the petitioner were belonging to caste Gujjar and they were engaged into activities of agriculture and trading of agriculture products. According to the learned counsel for the petitioner, the Committee ought to have validated the claim of the petitioner since the vigilance enquiry report supported the case of the petitioner as belonging to caste Gujjar. 5 Per contra, the learned AGP relied upon the majority view 5/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: in the decision of the Committee and specifically referred to the record relied upon by the petitioner and argued that the entry at Serial No.326 in the list of other backward classes notified by the State Government of Maharashtra specifically included caste "Dode Gujjar, Leva Gujjar, Reva Gujjar, Suryawanshi Gujjar". However, did not include Gujjar (Jain) or (Jain) (Gujjar) as allied caste. Mr. Samant also relied upon the view expressed by the majority and would submit that it was only the Gujjar residing at Dhule and Jalgaon Districts who were entitled for being recognised as Gujjar and the petitioner and his forefathers were residents of Solapur District and, therefore, they cannot be said to be belonging to caste Gujjar which finds place at Serial No.326 of the list mentioned above. Further the learned AGP would also argue that the petitioners predecessors are found to be engaged in an activity of trading whereas as per record the persons belonging to Gujjar caste were engaged mainly into occupation of agriculture. Mr. Samant also invited our attention to the Government Resolution of 1st March, 2006 issued by the Social Justice, Cultural Affairs and Special Assistance Department, Mantralaya, Mumbai by 6/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: which the State Government on the recommendation of State Backward Commission included certain castes in the list of other class which was in existence. According to the learned AGP, Entry at Serial No. 326 of the list of O.B.C., the caste "Dode Gujjar" was included, however, by the said Government Resolution the following castes came to be included at Entry No. 326 as corresponding castes/sub caste.
"Gujjar, Leve Gujjar, Reve Gujjar, Reva Gujjar, Suryawanshi Gujjar".
The learned AGP prays for dismissal of the writ petition and for confirmation of the order passed by the Caste Scrutiny Committee.
The said writ petition was filed by the petitioner on 7 th July, 2014. On 3rd September, 2014, this Court considering the fact that there is difference of opinion, amongst the members of the committee, with regard to caste claim of the petitioner, was pleased to grant interim relief in terms of prayer clause (d), by which the petitioner has prayed for directions to respondent Nos. 3 and 5 not to cancel the admission and allow the petitioner to appear for 7/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: examination. This Court had made it clear that there was no question of claiming any equities in case the final order goes against the petitioner.
On 4th September, 2015 on a Civil Application filed by the petitioner this Court directed respondent No.3 and 5 to declare the result of the petitioner and permitted him to pursue further studies in case he passes. On 8th November, 2017 we heard the matter and we had asked the learned AGP to produce the original record before us. Mr. Samant has also placed on record list of OBC in State of Maharashtra so also the Government Resolution on 1st January, 2001 and Government Resolution dated 1st March, 2006. 6 We have carefully perused the impugned order and also the record produced by the learned AGP.
The petitioner is claiming belonging to Gujjar caste (O.B.C.). The State Government has published list of other backward classes in the State of Maharashtra and entry No.326 as on date reads as follows :
326 :- "दोडे गुजर - ३२६ :- गुजर, लेवे गुजर, रेवे गुजर, रेवा गुजर, सूयरवश ं ी गुजर"
8/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: The petitioner claims to be belonging to Gujjar caste. In order to substantiate his claim of belonging to the said caste, he relied upon the documentary evidence in the form of the documents reflecting his caste as Gujjar. As far as the petitioner himself is concerned, he has relied upon the certificate issued by the Sub- Divisional Officer, Madha Division Kurduwadi dated 5 th July, 2012 which mention his caste as "Gujjar". He has also placed on record a document in the form of school leaving certificate issued by Principal, Walchand College of Arts and Science, Solapur dated 27th July, 2010 where his caste is mentioned as "Jain". The petitioner has also placed on record a school entry in the school leaving certificate of his father Santosh Kailaschand Gandhi issued by the Head Master, Zilla parishad Primary School, Upalwate, taluka Mhada, District Solapur where the caste is mentioned as "िबगर मागास जैन " ("non backward Jain"). The petitioner has placed reliance on a school leaving certificate of his cousin grandfather namely Motichand Gautamchand Gujjar issued by Head Mistress, Zilla Parishad Primary School, Kem, taluka Karmala, District Solapur which in the caste column mentions the caste as 9/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: Gujjar (Jain). The date of admission of said Motichand Gautamchand Gujjar is shown as 6th November, 1930. The petitioner has also placed reliance on document in favour of his real grandfather Kailash Gautamchand Gujjar which is school leaving certificate issued by Head Mistress, Zilla Parishad Primary School, Kem, Taluka Karmala, District Solapur which shows date of admission 10th March, 1937. He also placed his reliance on a school leaving certificate of his another cousin grandfather Pammulal Gautamchand Gujjar issued by the same school who had issued two earlier certificates where the caste is mentioned as Gujjar Jain (गुजर जैन). Another document produced by the petitioner is the school leaving certificate in favour of his cousin aunt Surekha Motilal Gandhi issued by the Head Master, Zilla Parishad Primary School, Upalwate, taluka Madha, District Solapur where date of admission in the school is reflected as 13 th July, 1956. Another document in favour of his real aunt, Shubhangi Kailashchand Gandhi. Her school leaving certificate mentions the school admission as 1 st June, 1964 issued by the Head Master, Zilla Parishad Primary School, Uppalwate, taluka Madha, District Solapur. The petitioner also placed 10/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: reliance on one document of his great grandfather Gautamchand Sakharam Gujjar which is a school leaving certificate issued by Head Master Zilla Parishad Primary School, Kem, taluka Karmala, District Solapur, where the school entry is mentioned as 1 st April, 1889 and which is in "मोडी" "modi" language. The said document mentions the caste as "Gujjar".
The tabulation of these documents is reflecting the caste is as below :-
Sr No. Details of document. Relationship to the petitioner.
1 Caste Certificate issued by Sub-Divisional Self.
Officer, Madha Division Kurduwadi in favour of Akshay Santosh Gandhi 5/7/2012 2 School Leaving Certificate issued by Self.
Principal, Walchand College of Arts and Science Solapur in favour of Akshay Santosh Gandhi dated 20/7/2010 3 School Leaving Certificate issued by Head Father Master, Zilla parishad Primary School, Upalwate, Taluka Madha, Distroct Solapur in favour of Santosh Kailashchand Gandhi dated 22/6/1972 11/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: 4 School Leaving Certificate issued by Head Cousin grandfather.
Mistress, Z.P. Primary School, Camp, taluka Karmala, District Solapur in favour of Motichand Gautamchand Gujjar 06/11/1930 5 School Leaving Certificate issued by Head Real grandfather Mistress, Z.P. Primary School, Camp, taluka Karmala, District Solapur Kailas Gautamchand Gujjar 10/3/1937.
6 School Leaving Certificate issued by Uncle.
Principal, Shri Uma Junior College of Arts and Commerce Solapur in favour of Sandip Kailaschand Gandhi 24/6/1985.
7 School Leaving Certificate issued by Head Cousin grandfather Master, Z.P. Primary School, Camp, taluka Karmala, District Solapur, in favour of Pammulal Gautamchand Gujjar 06/11/1930 8 School Leaving Certificate issued by Head Real paternal aunt.
Master, Z.P. Primary School, Upawate, Taluka Mahda, District Solapur, in favour of Shubhangi Kailashchand Gandhi dated 1/6/1964.
9 School Leaving Certificate issued by Head Cousin paternal aunt.
Master, Zilla Parishad Primary School, Upalwate, taluka Madha, District Solapur in favour of Surekha Motilal Gandhi 12/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: 13/7/1956.
10 School Leaving Certificate issued by Head Cousin paternal aunt.
Master, Zilla Parishad Primary School, Upalwate, taluka Madha, District Solapur in favour of Savita Motilal Gandhi 13/7/1961 11 School Leaving Certificate issued by Head Cousin uncle.
Master, Zilla Parishad Primary School, Upalwate, taluka Madha, District Solapur, in favour of Subhash Motilal Gandhi 11/6/1947 12 School Leaving Certificate issued by Head Cousin uncle.
Master, Zilla Parishad Primary School, Upalwate, taluka Madha, District Solapur, in favour of Shashank Motilal Gandhi 19/6/1958.
13 School Leaving Certificate issued by Head Great grandfather.
Master, Z.P. Primary School, Camp, taluka Karmala, District Solapur, in favour of Gautamchand Sakharam Gujjar 1/4/1889 14 Akshay Santosh Gandhi filed affidavits Self.
dated 5/9/2012 and 6/11/2012.
On the basis of the aforesaid documents produced before the Committee, the petitioner claims that he belongs to the caste "Gujjar" and the word "Jain" prefixing or affixing "Gujjar" is of no 13/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: consequence and rather in some of the old documents the caste is mentioned as "Gujjar". The State Government on 1st January, 2001 issued a Government Resolution implementing the recommendation of Mutatkar Committee and State Backward Class Commission (Khatri Commission) in their report of the year 1993 to 2000 which had recommended inclusion of 226 castes into the list of other backward classes.However, the State Government approved 46 recommendations and issued a Resolution including the said caste in the list of other backward classes either in the form of caste to be included for the first time or the corresponding castes to the entries already find place in the list of other backward class. This Government Resolution included Entry No. 326 which introduced caste "Gujjar" for the first time in the list of other backward classes. Entry at Sr. No.326 read as caste "दोडे गुजर" "Dode Gujjar". The backward class commission forwarded its recommendation to the State Government in the form of its 13 to 16 th Report in the year 2005 and 2006 and recommended inclusion of certain castes and exclusion of certain castes from the list of other backward classes. The State Government in order to implement the 14/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: recommendation of the said commission issued a Government Resolution on 1st March, 2006 thereby including certain corresponding castes in the list of other backward class and clubbing them with the original caste in the list. Entry No. 326 which was added by Government Resolution dated 1st January, 2001 came to be further amended by inclusion of the following corresponding castes / sub- castes, namely "Gujjar, Leva Gujjar, Reve Gujjar, Reva Gujjar, Suryawanshi Gujjar. Thus, it is apparent that initially by virtue of entry No.326 only caste "दोडे गुजर" "Dode Gujjar" was recognized as other backward class in State of Maharashtra and the caste "Gujjar" is included in the list of other backward class with effect from 1 st March, 2006. The documents on which the petitioner has placed reliance and specifically the pre-constitutional documents namely the school leaving certificate of his grandfather of the year 1937, his cousin grandfather Motichand Gautamchand Gujjar of the year 1930 and another cousin grandfather Pammulal Gautamchand Gujjar of 1930, mentions the caste as "Gujjar (Jain)" "Jain (Gujjar)" in respect of his real grandfather. There was and there is not any caste as Gujjar (Jain) 15/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: or "Jain Gujjar" in the list of other backward class. The caste "Gujjar" came to be included in the list of other backward class from 1 st March, 2006 and the corresponding caste included in the list of OBC are "Dode Gujjar, Leva Gujjar, Reve Gujjar, Reva Gujjar and Suryawanshi Gujjar". However, we do not find any mention of caste "Jain Gujjar" / "Gujjar Jain". An entry in the list of SC, ST/OBC has to be read as it is and it is settled position of law that the Presidential Notification identifying the said SC/ST or the Notifications issued by the State Government in relation to "other backward class" are not susceptible of any interpretation and it is not permissible for the courts to add or delete any of these entries.
7 The majority view of Respondent No.2 Committee in its order dated 28th March, 2014 has specifically noted that the entry No. 326 in the list of other backward classes do not include Gujjar (Jain) or Jain (Gujjar) as an corresponding caste or sub-caste of "Dode (Gujjar)" The Committee has relied upon the report of the backward classes commission which had recorded a finding that the persons residing in District other than Dhule and Jalgaon are not entitled for 16/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: issuance of certificate belonging to Gujjar caste and therefore the place of residence of the applicant assumes significance. The majority view of the committee observes that as per the documents submitted by the applicant and the materials collected by the Vigilance Cell, the applicant is resident of Solapur and he is not connected with Jalgaon and Dhule districts. Further the Committee has observed that occupation of the ancestors of the applicant were trading in agricultural produce, whereas the persons belonging to Gujjar caste are agriculturist. The Committee observed that all the persons belonging to Gujjar and corresponding caste as well as sub-caste who were residents of Dhule and Jalgaon Districts were carrying out agriculture as their main profession. The Committee has placed reliance on several recommendations of the backward class commission wherein reference is found about Gujjar caste based on which recommendation was made for its inclusion at Entry No. 326 along with "Dode Gujjar, Leva Gujjar, Reva Gujjar, Suryawanshi Gujjar" who were all found in Jalgaon and Dhule Districts. The Committee has also further observed that the persons belonging to any of the caste at 17/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: entry No. 326 are connected with the other castes in the said entry and their language is Gujrav and mother tongue is Marathi. However, the Committee noted that the present applicant does not show any consanguinity with Gujjar caste. On examination of the characteristic of the applicant the Committee has noted that he did not show any similarity with the characteristics possessed by the caste who are placed at serial No.326. The Committee has thus concluded that the applicant does not establish that he belongs to Gujjar caste and even if the applicant would have been the resident of Dhule or Jalgaon District, still he was not entitled for procuring the caste validity certificate of Gujjar Caste and not entitled for the benefits available to the said caste.
We are in agreement with the said findings recorded by the Committee and the petitioner has not shown any perversity or gross illegality in the finding recorded by the Committee. The caste of the petitioner as reflected from the documents of his forefathers appears to be Jain Gujjar or Gujjar Jain which do not find place in the list of other backward class in the State of Maharashtra. In such 18/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: circumstances, the petitioner is not entitled to avail the benefits of belonging to Gujjar caste when the documents of his own ancestors and that of pre-constitutional era refers that the caste was Jain Gujjar/Gujjar Jain. The documents referring the caste as Gujjar on which the petitioner has placed reliance are post constitutional documents as far as one document of 1889 is concerned, the Committee has expressed that there is some interpolation and the word Gujjar is written in different ink and different handwriting and has therefore disregarded the said document. It did not accept it as conclusive proof in favour of the petitioner to establish that he belongs to caste Gujjar (OBC). The Committee has also recorded a finding that as far as the entry in school leaving certificate of Shri Subhash Motilal Gandhi where the date of birth is mentioned as "11/6/1947" and the caste is mentioned as Jain (Gujjar) who is the cousin grandfather and another school leaving certificate of Shashikant Motilal Gandhi reflecting the date of admission in the school as 19/6/1958 mention the caste as Jain (Gujjar). On comparison of the said documents with the school record, the committee has observed that the word Gujjar 19/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: has been written in the different ink and it appears that it is written subsequently. In any case, the said entry is not purely into Gujjar who is recognized as other backward class.
8 It is well settled position of law that entries in the Scheduled Castes and Scheduled Tribes Order are not open for interpretation and the said entries have to be read as they and the Hon'ble Apex Court in no uncertain terms has laid down the law that the the caste/tribe entered in the Presidential Notification is not open for interpretation by the State Government or the Courts. As far as the other backward classes are concerned, the State Government by issuing the Government Resolution has notified various castes to be included in the list of other backward class on recommendation of the backward class commission which after a detailed study of the particular caste has recommended its inclusion or exclusion. The State Government by issuing the Government Resolution on 1 st March, 2006 has included several corresponding caste entries at Entry No.326 of list of OBC in State of Maharashtra namely "Dode Gujjar" and included caste "Gujjar, Leva Gujjar, Reva Gujjar, Suryawanshi Gujjar" at entry 20/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 ::: No. 326. However, this did not include Jain Gujjar/Gujjar (Jain). In the light of the law laid down by the Hon'ble Apex Court that it is not permissible to read caste Gujjar (Jain)/ Jain(Gujjar) into the list of other backward classes notified by the State Government nor is it permissible for us to deduce an inference that caste Gujjar (Jain) / Jain (Gujjar) is synonymous to Gujjar which is included at Serial No.
326. We refrain ourselves from undertaking the said exercise and confer benefits on the petitioner though the documents are produced by him reflect the caste as Jain (Gujjar) / Gujjar (Jain). 9 We find that there is no perversity or error of law apparent on face of the record in the findings recorded by the Caste Scrutiny Committee by majority view. The findings of the Committee needs to be upheld and the writ petition filed by the petitioner deserves to be dismissed. Same is therefore dismissed. No order as to costs. [SMT.BHARATI H. DANGRE,J.] [S.C. DHARMADHIKARI, J.] 21/21 wp-6633-14.doc ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:12:20 :::