Dharmendra Devram Patil vs Scheduled Tribes Caste ...
2003 Latest Caselaw 738 Bom

JUDGMENT

B.H. Marlapalle, J.

1. The petitioner was issued a caste certificate by the Executive Magistrate, Jamner, on 5th January, 1988 certifying that he belongs to 'Tokre Koli - Scheduled Tribe' and the said social status claim was referred to the Scheduled Tribes Caste Certificate Scrutiny Committee at Pune, for verification, as the petitioner was seeking admission to M.B.B.S, Degree course, under the B.J. Medical College at Pune, against a seat reserved for Scheduled Tribes, in the academic year 1990-91. The Scrutiny Committee by its decision dated 22.6.1990, has invalidated the petitioner's Tribe claim and certificate issued by the Executive Magistrate, Jamner, has been directed to be cancelled and confiscated. The said decision was challenged by way of an appeal before the Commissioner, Tribal Development at Nashik. However, said appeal was dismissed side judgment and order dated 22nd August, 1990 by the Additional Commissioner for Tribal Development. The order of the Scrutiny Committee passed on 22.6.1990 was confirmed. Hence, this petition.

2. The petitioner had submitted in all 33 documents before the Scrutiny Committee and they were categorized in the following four groups :

(A) Documents pertaining to the candidate's father.

(1) Xerox copy of the birth extract issued by the Tahsildar, Jamner, District : Jalgaon.

(2) Xerox copy of the School Leaving Certificate bearing No. 770 dated 15.7.57 issued by the Head Master, G.S. Agricultural High School E.K. Jalgaon.

(3) Xerox copy of the first page of the Service Book.

(4) Certificate issued by the Police Patil, Idgaon, Taluka and District : Jalgaon.

(5) Certificate issued by the Secretary, Akhil Koli Samaj Parishad, M.S., Bombay.

(6) Xerox copy of the Caste Certificate issued by the Executive Magistrate, Jamner, District : Jalgaon, under No. MAG/SR/4/88, dated 5.1.1988.

(B) Documents pertaining to the candidate's uncle :

(7) Xerox copy of birth extract dated 13.2.1989 issued by the Tahsildar, Jamner, District: Jalgaon.

(8) Xerox copy of the birth extract of Shri Dashrath Baburao Patil, dated 13.2.1989 issued by the Tahsildar. Jamner, District : Jalgaon.

(9) Copy of the decision in Appeal Case No. 6/ 1987 given by the Additional Commissioner. Nashik, on 2.6.1987.

(10) An affidavit dated 30.12.1987 sworn by Shri Dashrath Baburao Patil before the Executive Magistrate, Palghat. District : Thane.

(11) An affidavit dated 30.1.1990 sworn by Shri Dashrath Baburao Patil, Executive Magistrate, Jalgaon.

(12) Xerox copy of the Caste Certificate Issued by the Executive Magistrate, Jamner, under No. MAG/SR/77, dated 4.4.1977.

(C) Documents pertaining to the candidate :

(13) Xerox copy of the birth extract dated 2.9.1990 issued by the Block Development Officer, Bhadgaon, District : Jalgaon.

(14) Xerox copy of the extract in the admission register issued by the Head Master, Nutan Prathamik Vidya Mandir, Jamner, District : Jalgaon, under No. 1440 dated 17.2.1989.

(15) Duplicate School Leaving Certificate bearing No. 1440 dated 17.2.1989 issued by the Head Master, Nutan Prathamik Vidyamandir, Jamner. District : Jalgaon.

(16) Duplicate School Leaving Certificate bearing No. 9767 dated 27.10.1989 issued by the Head Master, New English School, Jamner, District : Jalgaon.

(17) Caste Certificate No. MAG/SR/2666/79, dated 30.6.1979, issued by the Executive Magistrate, Jamner.

(D) Other documents :

(18) Xerox copy of the birth certificate dated 21.4.1979 issued by the Health Officer, Nagarpalika, Jalgaon, in respect of the candidate's cousin sister.

(19) Xerox copy of the birth extract dated 17.10.1986 issued by the Tahsildar, Jamner, in respect of Shri Soma Kadu (candidate's father's cousin maternal uncle).

(20) Xerox copy of the Caste Certificate No. MAG/SR/1163/86, dated 29.10.1986, issued by the Executive Magistrate. Jamner, in respect of Shri Soma Kadu Adhav (Candidate's father's cousin maternal uncle).

(21) Xerox copy of the Caste Certificate issued by the Executive Magistrate, Jalgaon, under No. MAG/SR, dated 11.10.1977 in respect of candidate's cousin brother.

(22) Xerox copy of the Caste Certificate issued by the Executive Magistrate, Jamner, in respect of Shri Vithal Ramchandra Jadhav (candidate's father's cousin brother),

(23) Xerox copy of the Caste Certificate No. MAG/SR/623, dated 31.7.1979 issued by the Taluka Executive Magistrate, Erandol, in respect of Shri Tarachand Sonu Koli (candidate's maternal uncle),

(24) Xerox copy of the School Leaving Certificate bearing No. 1241, dated 19.2.1988 issued by the Head Master, Nutan Prathamik Vidyamandir, Jamner, in respect of candidate's brother (Shri Jitendrakumar Deoram Patil).

(25) Xerox copy of the School Leaving Certificate bearing No. 1499 dated 24.7.1987 issued by the Head Master, Junior College, Jamner, in respect of candidate's brother (Shri J.D. Patil).

(26) Xerox copy of the School Leaving Certificate bearing No. 7514, dated 23.1.1981 issued by the Head Master, New English School, Jamner, in respect of candidate's brother (Shri R.D. Patil).

(27) Xerox copy of the School Leaving Certificate bearing No. 7585 issued by the Head Master, New English School, Jamner, in respect of candidate's brother (Shri S.D. Patil).

(28) Xerox copy of the School Leaving Certificate No. 2599 dated 24.6.1985 issued by the Head Master. Sarvajanik Vidyalaya, Chincholi, Taluka : Yawal. District : Jalgaon, in respect of Kum. Shashikala Vasant Baviskar (candidate's brother's wife).

(29) Xerox copy of the Scheduled Castes and Scheduled (Sic) Part-I, Bombay Presidency, Volume VIII.

(30) Xerox copy of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, Act No. 108 of 1976.

(31) Circular No. EBC-1576/39030/D-V, dated 20.7.1977.

(32) Govt. letter No. CBC-1576/579/33694 dated 18.2.1977 by Social Welfare, Cultural Affairs, Sports and Tourism Department. Mantralaya, Bom-bay-32.

(33) Decision given by the High Court, Bombay, in respect of case of Shri Abhay Shrawanji Parate v. State Govt. of Maharashtra.

3. So far as the documents pertaining to the petitioner are concerned, they were all subject to verification by the Scrutiny Committee. Amongst the documents which pertain to the petitioner's father, the first two documents indicated that his caste was recorded 'Koli' and 'Suryawanshi Koli respectively. The document at serial No. 3 which was the first page of the service book of the petitioner's father, clearly indicated that originally the caste was recorded as 'Koli' and subsequently it was changed to 'Tokre Koli' on the basis of the caste certificate Issued by the Executive Magistrate, Jamner, on 5.1.1988. The documents at serial Nos. 4, 5 and 6 were again caste certificates which were subject to verification. The documents at serial Nos. 7 and 8 showed the petitioner's uncle's caste as 'Koli' and the document at serial No. 12 was the caste certificate in favour of the said uncle i.e. Shri Dashrath Baburao Patil. Similarly, the documents at serial Nos. 14 to 16 and 18 were the school leaving certificates of the petitioner and his cousin sisters wherein the caste recorded as 'Tokre Koli'. The document at serial No. 17 was again a caste certificate issued in favour of the petitioner and document at serial No. 19 was the birth extract of petitioner's maternal uncle wherein the caste was recorded as 'Magaslela Koli', which means backward Koli. The documents at serial Nos. 24 and 25 were the school leaving certificates of the petitioner's brother in which the caste was recorded as 'Koli (Tokre)'. The Committee recorded a finding that the bracketed portion was subsequently added. The documents at serial Nos. 26 and 27 were in respect of the petitioner's brother and in the said documents, the caste was shown 'Suryawanshi Koli.

4. We need to consider the following documents on which the learned Counsel for petitioner has placed strong reliance and submitted that on the face of these documents, there was no choice before the Scrutiny Committee but to uphold the tribe claim of the petitioner and issue a validity certificate:

(A) Order dated 2.6.1987 passed in Appeal No. 6 of 1987 by the Additional Commissioner, Nashik Division, Nashik, in favour of Shri Dashrath Baburao Patil.

(B) Order dated 2.1.1992 passed in Appeal No. 30 of 1991 by the Additional Divisional Commissioner at Nashik, validating the petitioner's father Devram's tribe claim.

(C) Order passed by the Additional Divisional Commissioner Nashik, in Appeal No. 33 of 1992 in favour of Rupchand Baburao Patil directing the Executive Magistrate to issue a caste certificate in favour of Ravindra s/o Rupchand Patil. This Rupchand Baburao Patil is petitioner's uncle, and

(D) Decision of this Court in Writ Petition No. 4086/ 1994 filed by Digambar Rupchand Patil i.e. the petitioner's cousin.

5. The caste certificates submitted by the petitioner and which pertain to himself, his father, brother, sister and cousins, etc. were contradictory to each other, as noted by the Scrutiny Committee, inasmuch as, some documents showed the caste as 'Koli', some showed the caste as 'Suryawanshi Koli' and Ors. showed the caste as "Koli (Tokre)'. The Committee then considered other issues like linguistic, social and religious affinity on the basis of the replies given by the petitioner and his father during the course of hearing. The Committee held that the petitioner could not establish his affinity towards 'Tokre Koli Scheduled Tribe'. It was the case of the petitioner before the Scrutiny Committee that 'Koli' is the main caste and it has sub-castes like 'Tokre Koli', 'Mahadeo Koli', 'Bongar Koli', 'Malhar Koli', 'Mangela Koli' etc. The Scrutiny Committee referred to the Presidential Order of 1976 issued under Article 342 of the Constitution and more particularly entries at serial Nos. 28, 29 and 30, as applicable to the State of Maharashtra. The said order does not recognize that 'Koli' is the main caste and it has sub-castes, as stated by the petitioner. The Committee noted that the entries in the Presidential Order are required to be read as they are and it is not permissible for the Committee or the Court to examine whether a particular caste listed in the Presidential Order is a sub-caste of some other tribe. The contentions so raised by the petitioner were rightly rejected by the Committee and this position in law is well established by the decisions of the Supreme Court in the case of (i) State of Maharashtra v. Milind and Ors. 2001 (1) Mh. L.J. 1 : 2001 (1) Bom. C.R. 620 (SC) : 2001 All M.R. 573(ii) Palghat Jilla Thandan Samudhyaya Samrakshna Samithi and Anr. v. State of Kerala and Anr. .

6. Now, let us examine the orders passed by the Additional Divisional Commissioner in the appeals filed by the petitioner's uncle, father and cousin, as well as, the order of this Court in Writ Petition No. 4086/1994. There is no dispute that the petitioner's father Devram has four brothers, namely. Dashrath, Rupchand, Trimbak and Yadavrao. Dashrath was granted a caste certificate, as belonging to Tokre Koli Scheduled Tribe' by the Executive Magistrate, Jalgaon, 4.4.1977 and on the reference made by the Joint Director of Health Services (Leprosy), Maharashtra State, the Taluka Magistrate, Jalgaon, by his letter dated 30.7.1985 had informed the referring officer that the caste certificate dated 4.4.1977 was issued on the strength of the certificate issued by the Village Panchayat, Vidgaon, and on having realized that it was issued improperly and irregularly, was cancelled. Dashrath thereafter applied to the Taluka Magistrate, Jalgaon, for grant of caste certificate in favour of his son Pramod and the said request was turned down by letter dated 6.12.1985. Being aggrieved by the same, Dashrath preferred appeal before the Divisional Commissioner, Nashik, on 13.12.1985 and by order dated 24.1.1986, the appeal was decided by remanding the case to the Taluka Magistrate for re-enquiry. The Taluka Magistrate passed an order on 5.12.1986 and rejected the request for issuance of a caste certificate, as belonging to 'Tokre Koli Scheduled Tribe'. Dashrath filed Writ Petition No. 2162/1987 before this Court in April, 1987 and by order dated 20.4.1987 the petition was disposed of with liberty to the petitioner to approach the lower appellate authority. Accordingly, he had submitted Caste Appeal No. 6/1987, which came to be allowed by the Additional Divisional Commissioner at Nashik on 2.6.1987. Along with the said appeal, Dashrath had submitted in all 12 documents and without examining the probative value of any of these documents, the Additional Divisional Commissioner recorded the following observation:-

The School Leaving Certificate of his son Pramod Dashrath Patil shows that his caste has been entered in it as Tokre Koli. The affidavits of his close relatives also show that they belonged to the Tokre Koli Scheduled Tribe community. The appellant has also filed affidavit to the effect that his relatives belonged to the Tokre Koli Scheduled Tribe Community. After lifting area restrictions, persons belonging to any Scheduled Tribe would be found living anywhere in the State of Maharashtra and there is no restriction to his evidence in particular area only. Thus, it would be incorrect to say that no Tokre Koli Community is found in Jalgaon District. On the basis of evidence filed by the appellant, I have come to the conclusion that the appellant belongs to the Tokre Koli-Scheduled Tribe Community.

On the strength of these observations, the Additional Divisional Commissioner allowed the appeal and set aside the order dated 5.12.1986 passed by the Taluka Executive Magistrate. It is revealed that the findings recorded by the said appellate authority were based solely on the certificates and there was no occasion for the competent Scrutiny Committee to verify the caste claim of Dashrath. Such an order without adjudication on the status claim by taking into consideration documents relied upon or social affinity, etc., cannot be the basis for upholding the petitioner's caste claim.

7. The petitioner's father was also successful in getting his appeal allowed by the Additional Divisional Commissioner, Nashik, vide judgment and order dated 2.1.1992. The Scrutiny Committee by its decision dated 12th August, 1991 had invalidated Deoram's tribe claim and, therefore, he had filed appeal before the Additional Divisional Commissioner. The appellate authority noted that the birth extract of Deoram's brother, Madhav, clearly recorded his caste as 'Koli' and Madhav was born on 11.1.1929. However, it took into consideration the decision dated 2.6.1987 in the case of Dashrath and recorded a finding that Deoram's claim of belonging to Tokre Koli - Scheduled Tribe' could not be denied and the appeal was allowed by setting aside the decision of the Scrutiny Committee. Thus, in the case of Devram also, there was no adjudication inspite of the fact that his own brother Namdeo's birth extract which pertained to January. 1929 clearly indicated his caste as 'Koli1. This decision in the case of Devram also cannot form the basis for the petitioner's tribe claim and cannot be accepted as an evidence.

8. Now, coining to the order passed by the Additional Divisional Commissioner, Nashik, on 19.9.1992, allowing the appeal of Rupchand Baburao Patil (petitioner's uncle), the Executive Magistrate, Jalgaon, by his communication dated 18.6.1 992 turned down the application for issuance of a caste certificate as belonging to 'Tokre Koli-Scheduled Tribe' and, therefore, an appeal was moved before the Additional Divisional Commissioner. The said appellate authority considered the genealogy and noted that Dashrath and Devram are the brothers of Rupchand i.e. the appellant and as their tribe claim was upheld by the said authority, Rupchand could not be denied the same status. This decision was again solely based on the orders passed in the case of Dashrath Baburao Patil and Devram Baburao Patil.

9. Writ Petition No. 4086/1994 was decided by a Division Bench of this Court on 15 December, 1994. The appeal was filed by Digambar Rupchand Patil i.e. the cousin of the petitioner through Rupchand Patil as guardian. Rupchand had stated before this Court that his caste was validated by the Additional Commissioner, Nashik, by order dated 19.9.1992 as belonging to 'Tokre Koli' and inspite of such an order, the Executive Magistrate had refused to issue a caste certificate to his minor son Digambar. We have noted earlier that Rupchand's caste claim was validated by the Additional Divisional Commissioner solely on the basis of the validation order passed in favour of Devram and Dashrath as well, and both these orders could not have been relied upon. The following observations of this Court, in the case of Digambar Rupchand Patil (supra) are required to be reproduced:

We are surprised to find that when the competent authority i.e. the Additional Commissioner, Nashik, has decided the caste claim in favour of the petitioner, how the authorities thereafter can refuse to issue the caste certificates in favour of the children of the petitioner. If the caste claim of the near relative is established, then the children of that person need not go on repeating and establishing the caste claim afresh by leading evidence. It is enough if they produce the judgment given by the competent authority in favour of such a near relation. In the present case, the near relation is none other than the father of the claimants. Respondent Nos. 1 and 2 have decided the matter as if they are sitting in appeal over the judgment already delivered on 19.9.1992. The entries in other documents are irrelevant and need not have to be taken into account when after taking into consideration the evidence, the judgment is delivered in favour of the father on 19.9.1992.

Based on these findings, this Court directed to issue a caste certificate in favour of Digambar and it further noted that it was not necessary to have verification of the said certificate by the Scrutiny Committee or any other Committee and that such certificate shall be treated as valid certificate and the caste of the minor children of Rupchand shall be considered as Tokre Koli - Scheduled Tribe'.

10. The above said view of this Court ceases to be a good law in view of the decision of the Apex Court in the case of Kumari Madhuri Patil and Anr. v. Addl. Commissioner. Tribal Development and Ors. wherein it has been emphasized that each claimant has to stand on his/her own legs and merely because one of the family member's caste claim has been verified, would not by itself be the foundation for validation of the candidate's claim. In the case at hand, the basis for the validation of caste claims of Dashrath, Devram and Rupchand was never adjudicated by a competent Scrutiny Committee and they were all the beneficiaries of the appellate orders which recorded their findings on the superficial evidence and the certificates/documents which could not be accepted as sufficient evidence in support of the tribe's claim. Under the circumstances, none of these validation certificates which the petitioner relied upon before us could be accepted and, therefore, the findings recorded by the Scrutiny Committee do not suffer from any error apparent on the face of the record, warranting our interference.

11. In Kumari Madhuri Patils case (supra), it has been held that the High Court is not a Court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. It is further observed that when the Committee considers all the material facts and records a finding, though another view, as a Court of appeal may be possible, it is not a ground to reverse the findings. This view has also been subsequently confirmed by the Constitution Bench of the Apex Court in the case of State of Maharashtra v. Milind and Ors. (supra).

12. In the result, this petition fails and the same is hereby dismissed. Rule discharged. Interim order stands vacated. No costs.