Suryakant Kisan Pujari vs The Tahasildar & Executive ...
2009 Latest Caselaw 73 Bom

                                    1

    srk
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                        
                                 Appellate Side
                         Writ Petition No.7922 of 2003




                                                
    Suryakant Kisan Pujari                      .. Petitioner




                                               
          Vs.

    1. The Tahasildar & Executive Magistrate,
       Phaltan, Tal. Phaltan, Dist.Satara.




                                   
    2. The Committee for Scrutiny &
       Verification of Caste Claims,
                        
       Maharashtra State, Pune.

    3. The State of Maharashtra                 .. Respondents
                       
    Mrs.M.M.Deshmukh with Mr.Milind Deshmukh for petitioner.

    Mr.S.D.Rayarikar, AGP for respondents.
      
   



                        CORAM: B.H.MARLAPALLE & R.Y. GANOO,JJ.

December 10, 2009.

ORAL JUDGMENT (PER B.H.MARLAPALLE,J.)

1. This petition filed under Articles 226 and 227 of the

Constitution impugns the order passed by the Committee for

Scrutiny and Verification of Tribe Claims, Pune (for short "the

Scrutiny Committee) dated 6/9/2002 thereby invalidating the

Tribe's claim of the petitioner's daughter Priya and cancelling

the caste certificate dated 6/5/1991 issued in her favor by the

Executive Magistrate, Phaltan. In the academic year 2002-03

Priya passed her Higher Secondary School examination and

was seeking admission in medical / engineering colleges

against a seat reserved for Scheduled Tribes. She, therefore,

approached the Scrutiny Committee for verification of her

Tribe's claim through the Principal of Yeshwantrao Chavan

Junior College at Phaltan where she was a student in the

academic year 2001-02. In support of her claim she submitted

the following documents:

(1) A school leaving certificate of herself issued by the Head Master, Shriram Balak Mandir, Phaltan,

wherein the caste is recorded as Mahadeo Koli. This document pertains to the period 1991.

(2) A copy of the caste certificate issued by the Executive Magistrate, Phaltan vide No.MAG/SR-5891,

dated 6/5/1991 wherein the caste is mentioned as Hindu Mahadeo Koli, Scheduled Tribe.

(3A) A copy of the school leaving certificate issued by the Head Mistress, Shriram Balak Mandir, Phaltan to Ku. Pradnya Suryakant Pujari.

(B) A copy of an extract of school leaving certificate

issued by the Head Mistress of Venutai Chavan Girls High School on 10/7/2001 wherein the caste is

recorded as Mahadeo Koli. This document pertains to

the period 2001.

(4) A school leaving certificate of the candidate's father i.e. Shri Suryakant Kisan Pujari issued by the

Head Master, Mudhoji High School, Phaltan on 5/2/1979 wherein caste is recorded as Mahadeo Koli. This document pertains to the period 1979.

A copy of the caste certificate of the candidate's father issued by the Executive Magistrate, Phaltan vide No. MAG/SR-54/91, dated 6/5/1991 wherein the

caste is recorded as Hindu Mahadeo Koli.

(6) A copy of the school leaving certificate of the

candidate's father issued by the Head Master, NPSM

Phaltan No.3 wherein the caste is recorded as Mahadeo Koli. This document pertains to the period 28/10/1994.

(7) A copy of an extract of school leaving certificate issued by the Head Master, Mudhoji High School, Phaltan pertaining to the candidate's father wherein

the caste is recorded as Hindu Mahadeo Koli.

(8) A copy of the Caste Certificate of the candidate's father issued by the Tahsildar, Phaltan

vide No. MAC/WS/Phaltan, dated 17/11/77 caste recorded is Mahadeo Koli.

2. Vigilance enquiry was also ordered and the Enquiry

Officer had submitted his report dated 24/4/2002 along with a

copy of the school extract of general registered at Serial Nos.1

to 7 of the near relations of the candidate whose caste was

recorded as "Koli" and some of these entries were made in the

year 1950 and thereafter. This enquiry report was supplied to

14/5/2002.

the petitioner/candidate along with a show cause notice dated

The candidate was asked to appear before the

Scrutiny Committee for personal hearing on 4/6/2002,

6/6/2002, 22/8/2002 and she appeared for personal hearing on

6/9/2002 along with her parents. She had submitted her reply

to the Vigilance enquiry report on 14/5/2002 and reiterated that

she belongs to "Mahadeo Koli" Scheduled Tribe.

3. We have perused the record placed before us by the

learned AGP. In the impugned order the Scrutiny Committee

has not set out any reasons as to why the documents at Sr.Nos.

4 to 8 were discarded or disbelieved by the Committee. These

documents were pertaining to the present petitioner's, i.e. the

father of the candidate, school record. Surprisingly, by filing

affidavit-in-reply of Shri T.R.Dhondage, the Research Officer of

the Scrutiny Committee, the order impugned has been sought

to be supported on the basis of the school record of the present

petitioner's brothers, sisters as well as his father based on the

extract of the Primary School Admission Register maintained by

the Head Master of Phaltan Nagar Parishad, School No.3 at

Phaltan. It has been contended that in the school record of the

present petitioner's father, brother and two sisters the caste

recorded was "Hindu-Koli" whereas in case of the petitioner, his

sister Durga and Mangal the caste recorded was "Hidnu

Mahadev Koli", "Mahadev Koli" or "Hindu Pujari Mahadev Koli".

Such a course to justify the impugned order by filing an

affidavit is not permissible, to say the least. The Scrutiny

Committee is a quasi judicial body and its order must be

supported by the reasons set out therein and the Research

Officer of such a Committee must refrain from filing affidavits-

in-reply so as to justify the order passed by the Committee

either accepting or rejecting the caste/tribe's claim. We hope

the Committee do not file any affidavit supporting the orders

passed by them and impugned in a Writ Petition, in future.

4. It is clear from the record that the certificates issued by

the Head Master of Phaltan Nagarparishad School No.3 were

not before the Scrutiny Committee and it was only an extract of

the admission register. Section 8 of the Maharashtra Scheduled

Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),

Nomadic Tribes, Other Backward Classes and Special Backward

Category (Regulation of Issuance and Verification of) Caste

Certificate Act, 2000 (for short the "Caste Certificate Act")

states that in any enquiry to be conducted by the Scrutiny

Committee under the said Act, the burden of proving that the

person belonged to such Caste or Tribe or Class shall be on

such claimant/applicant. As per Section 9 the Scrutiny

Committee has all the powers of a Civil Court while trying a suit

under the Code of Civil Procedure, 1908 and in particular in

respect of the following matters, namely :-

(a) summoning and enforcing the attendance of

any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof

from any Court or office; and

(e) issuing Commissions for the examination of

witnesses or documents.

5. Thus it is for the candidate to prove the documents relied

upon at Sr.Nos.4 to 8 hereinabove and pertaining to her father

and to disprove the entries made in the extract of Primary

School Admission Register issued by the Head Master, Phaltan

Nagarparishad School No.3 by leading evidence before the

Scrutiny Committee. The Scrutiny Committee has the powers

to issue summons of witnesses and call upon the said Head

Master to appear before it with the Admission Registers as well

as the Register of School Leaving Certificates in respect of

Krushna Bapu Pujari, Chandrakant Kisan Pujari, Malan Baban

Pujari, Leelavati Baban Pujari, Suryakant Kisan Pujari, Durga

Kisana Pujari and Mangal Malhari Pujari. The claim of belonging

to a Scheduled Caste / Scheduled Tribe or Other Backward

Citizens, has wider consequences and is of vital importance for

future claims, which either leads to or deprives from the benefit

of reservation and, therefore, sufficient opportunity must be

provided to the claimants to discharge his / her burden as

envisaged under Section 8 of the Caste Certificate Act. It is

apparent that the impugned order passed by the Scrutiny

Committee suffers from application of mind and has been

passed without setting out detail reasons and thus in a casual

manner. Interest of justice would be better served if the

petitioner / candidate is given a fresh opportunity to discharge

her burden under Section 8 of the Caste Certificate Act in

respect of the school admission entries as well as the school

leaving certificates of the abovenamed seven near relations /

blood relations / elder members of the family.

ig During the

intervening period, Priya has passed her B.E. Examination in

July, 2009.

6. Hence this petition succeeds. The impugned order dated

6/9/2002 is hereby quashed and set aside and the Tribe's

verification claim of Kum. Priya Suryakant Pujari, the daughter

of Suryakant Kisan Pujari is hereby remanded to the Caste

Scrutiny Committee for fresh adjudication from the stage of

allowing her to lead evidence in respect of the above stated

school documents of her near blood relations.

The candidate to appear before the Scrutiny Committee

on 28th December 2009 at 11 a.m. The Committee shall issue

witness summons to the Head Masters of Phaltan

Nagarparishad School No.3 as well as Mudhoji High School,

Phaltan along with the concerned school record on a given date

which shall not be beyond a period of three weeks from the

date of first appearance of the candidate before the

Committee. On recording evidence about the said documents,

the Committee to hear the candidate and pass a fresh order as

per law as expeditiously as possible and preferably before 31st

March 2010. As noted by this Court in its order dated 20th

November 2003 the candidate shall not claim any further

benefits as "Mahadeo Koli" until she finally succeeds in her

claim that she belongs to "Mahadeo Koli" scheduled tribe.

7. Rule is made absolute in terms of the above but with no

order as to costs.

         (R.Y.GANOO,J.)                          (B.H.MARLAPALLE,J.)