Shri Sunil vs The State Of Maharashtra
2010 Latest Caselaw 281 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD.




                                                                     
                     WRIT PETITION NO.5066    OF 2009
                                  WITH




                                             
                   CIVIL APPLICATION NO.9066 OF 2010




                                            
           Shri Sunil s/o Baliram Maddewad,
           age 24 years, occupation: Student,
           r/of village Barbada,Tq.Naigaon(Kh)
           District Nanded.                           Petitioner




                                
                     versus

     01.
                    
           The State of Maharashtra,
           Department of Tribal Development,
           Mantralaya, Mumbai-32, through
           its Secretary.
                   
     02.   The Scheduled Tribe Certificate
           Scrutiny Committee, Aurangabad
           Division, Kashmira Bhawan, Near
           Baba Petrol Pump, Aurangabad,
      


           through its Member Secretary.
   



     03.   The Sub Divisional Officer,
           Degloor, Taluka Degloor,
           District : Nanded.

     04.   The Principal, Shri Bhausaheb





           Hire Government Medical College,
           Dhule, District Dhule

     05. The Maharashtra University of
         Health Sciences, Nashik.                              Respondents





     ------------------------------------------------------
     Shri A.S. Golegaonkar, Advocate, for the petitioner.
     Shri S.K. Kadam, A.G.P. for Respondent Nos.1,3 and 4.
     Shri R.P. Phatke, Advocate, for Respondent No. 2.
     Shri K.D. Bade Patil, Advocate, for Respondent No. 5.
     ------------------------------------------------------




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                                      Coram:        Naresh H. Patil and
                                                    Shrihari P. Davare,JJ.

Judgment reserved on: 03.12.2010.

Judgment pronounced on: 13.12.2010.

Judgment (Per: Shrihari P. Davare, J.)

01. Rule. Rule made returnable forthwith, with

the consent of learned counsel for the parties and

taken up for final hearing at admission stage

itself.

02. By the present petition filed under

Article 226 of the Constitution of India, the

petitioner has prayed for quashment of the decision

of the Respondent No.2-Committee in Case No.

DD/TCSC/NAN/EDUCATION/222/04 dated 19.5.2009,

rejecting Tribe Claim of the Petitioner, and

declaration that the Petitioner belongs to "Mahadeo

Koli" Scheduled Tribe by issuing appropriate writ,

orders or directions. The said decision of the

Scrutiny Committee is produced at Exh.D to

petition.

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                             FACTUAL MATRIX

03. The facts and events leading to present

petition are that Petitioner is resident of village

Barbada, Taluka Naigaon (Kh), District Nanded and

claims to be belonging to Mahadeo Koli Scheduled

Tribe. Respondent No.1 is the State of Maharashtra

represented through Tribal Development Department,

Mantralaya,

Mumbai and Respondent No.2 is the

Scheduled Tribe Certificate Scrutiny Committee,

Aurangabad Division, Aurangabad, represented

through its Member Secretary, whereas Respondent

No. 3 is the Sub Divisional Officer, Degloor,

District Nanded. Respondent Nos. 4 and 5 have been

impleaded by way of amendment, on 11.10.2010, and

the Respondent No.4 is the Principal, Shri

Bhausaheb Hire Government Medical College, Dhule,

District Dhule, whereas the Respondent No.5 is

Maharashtra University of Health Sciences, Nashik.

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04. According to the petitioner, on 30.7.2003,

Sub Divisional Officer, Degloor (Respondent No.3)

has issued caste Certificate in favour of the

Petitioner by following due procedure, certifying

that the petitioner belongs to Mahadeo Koli which

is recognized as Schedule Tribe at serial No.29,

and the copy of the said certificate is produced at

Exhibit A to the petition (Page 24). Thereafter,

when

the petitioner was studying in 12th standard,

the said caste certificate was referred to

Respondent No.2-Scrutiny Committee, Aurangabad,

through the Head Master, Jawaharlal Neharu

Secondary and Higher Secondary School, Barbada,

District Nanded. Meanwhile, it is the contention

of the petitioner, that he got admission to

M.B.B.S. course from reserved category and now he

has completed the said course. After making enquiry

through vigilance Officer and considering the

documents submitted by the Petitioner in support of

his social status claim, the Respondent No.2-

     Committee       invalidated            the    caste          claim        of      the





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     petitioner,      by     order        passed        on       31.12.2005.




                                                                         

According to the petitioner, the said order was

passed by Respondent No.2-Committee exparte and

without providing adequate opportunity of hearing

to the petitioner. The copy of the said order dated

31.12.2005 is produced at Exh.B to petition(pg.26).

05. Being aggrieved and dissatisfied by the

said order passed by the Respondent No.2-Committee,

petitioner filed Writ Petition No.3067/2006,

challenging the said order before this Court.

Accordingly, this Court passed order therein on

27.2.2009 and remitted the matter back to

Respondent No.2-committee with directions to pass

order in respect of social status claim of the

petitioner afresh, after affording opportunity of

hearing to the petitioner and this Court also

directed that no adverse action be taken against

the petitioner only on the ground that his caste

claim was invalidated till the decision of the

Committee, afresh. The copy of the said order is

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produced at Exhibit C to petition (page 36).

06. It is the contention of the petitioner

that he produced various documents before

Respondent No.2-Committee, such as, school record

of his father, mother, of himself and his sister,

as well as their caste certificates issued by the

competent authority. The petitioner also submitted

birth register ig of his father, as well as his

mother, wherein their caste is recorded as

"Mahadeo Koli". Moreover, the petitioner also

produced xerox copy of Khasrta Pahani Patrak in

respect of his grand father namely Mahadu Piraji

Maddewad and the copy of the certificate issued by

Akhil Bhartiya Adiwasi Mahadeo Koli Samaj Sanghatna

in favour of the Petitioner. Besides that, he also

produced validity certificates along with genealogy

and affidavit of his cousin brother Dilip Namdeo

Maddewad and also the caste certificate of another

cousin from maternal side, namely, Kumari Vidya

Shivram Boinwad, before Respondent No.2-Committee.

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     07.        However,    it     is     the     grievance             of      the

petitioner that in spite of producing voluminous

evidence as referred to hereinabove, Respondent No.

2-Committee rejected the Trible Claim of the

petitioner, by placing undue reliance on the

entries collected by the Vigilance Officer from the

School Record of the persons whose surnames are

Maddewad but whose caste is recorded as "Koli",

without verifying their relationship with the

petitioner and, accordingly, invalidated the social

status claim of the petitioner as "Mahadeo Koli"

Schedule Tribe by the impugned order dated

19.5.2009, the copy whereof is produced at Exh D

(page 41). According to the petitioner, Respondent

No.2-Committee has followed hollow formalities and

the fresh decision rendered by Respondent No.-

Committee on 19.5.2009, even after remitting back

the matter, is the same as decided earlier on

27.2.2009. Being aggrieved and dissatisfied by the

said order dated 19.5.2009 passed by Respondent No.

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2 Committee, the Petitioner has assailed the same

in the present petition.

SUBMISSIONS:-

08. Shri A.S.Golegaonkar, learned counsel for

the petitioner canvassed that earlier order dtd.

31.12.2005 and the impugned order dated 19.5.2009

passed by Respondent No.2-Scrutiny Committee after

remitting the matter back to it, are identical and

Respondent-Committee has passed the impugned order

dated 19.5.2009 without application of mind and

without considering the vital documents produced by

petitioner and hence, submitted that same deserves

to be quashed and set aside. It is also argued by

learned counsel for the petitioner that there are

no comments by Respondent No.2-Committee in respect

of the document produced at serial No.21 i.e. xerox

copy of birth certificate in respect of his father

issued by Gram Sevak, wherein his father's caste is

mentioned as "Mahadeo Koli". Grievance of the

petitioner is also that Resp.No.2-Committee did not

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call for original register from the school and did

not verify the factual position and thus proceeded

to pass the impugned order dated 19.5.2009.

09. It is also canvassed by Shri Golegaonkar,

learned Counsel for the petitioner that there is no

interpolation in respect of entry of Kashiram, who

is the eldest uncle of the petitioner. It is also

canvassed that the caste validity certificate of

petitioner's cousin, namely, Dilip Namdeo Maddewad

was produced before Respondent No.2-Committee,

along with genealogy, but the Committee observed

that no genealogy and affidavit of said Dilip were

produced, and the said observation is incorrect.

It is also submitted by the learned Counsel for the

petitioner that the petitioner asked for re-

enquiry regarding vigilance cell report dated

22.9.2005, by giving letter dated 27.9.2005,

contending that he had not accepted the said

enquiry report, but such re-enquiry was not made.

It is further stated that the vigilance officer had

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not recorded statements of parents of the

petitioner, which also vitiates the vigilance cell

report due to non compliance of mandatory rule Nos.

5,6 and 12 and also in view of observations made by

Nagpur Bench of this Court, in the case of Heera

vs. S.T.C.C.S. Committee, reported at 2010 (6)

Mh.L.J. 274, which read thus:

"

The rule requires the Vigilance Cell to examine the parents or guardians of the applicant. The word "parents" implies both,

the father and the mother. The need for examining the father as well as the mother cannot be undermined in a case of this nature. it is well-known that in a

patriarchal society, caste is determined by the caste of the father. An enquiry into the

candidate's caste can be best made made by examining the father or others on the paternal side, such as, uncles. it is not possible to produce a correct result in scrutiny without examining the father or such

other relatives on the paternal side as are available. The Rule requires the vigilance cell to submit a report only after examining both the parents. The vigilance cell in the present case, has acted contrary to the Rules

in holding the enquiry and submitting the report. The order of the Caste Scrutiny Committee rests on such a report and is, therefore, vitiated. "

10. Accordingly, learned counsel for the

petitioner urged that the impugned order dated

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19.5.2009 passed by Resp.No.2-Scrutiny Committee is

unsustainable and erroneous and same deserves to be

quashed and set aside.

11. Respondent No.2-Scrutiny Committee filed

affidavit in reply, which is sworn in by Mr.

Indrajit Pandurang Kamble, Research Officer,

Scheduled Caste Scrutiny Committee, Aurangabad

Division, Aurangabad, and thereby denied averments

made in the present petition, unless admitted

specifically therein.It is stated in said affidavit

in reply that the petitioner was given sufficient

opportunity of hearing and petitioner himself and

his father participated during the hearing, and the

petitioner also submitted reply to the vigilance

cell report dtd.27.9.2005. However, the petitioner

did not file his affidavit or affidavit of Dilip

Namdeo Maddewad, along with genealogy and thus

failed to prove his relationship with said Dilip

Namdeo Maddewad. It is also stated that intention

of the petitioner is to protract the matter.

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12. The said affidavit also recites that the

vigilance officer made enquiry of caste claim of

father of Dilip Maddewad, namely, Namdeo Dhondiba

Maddewad and during the said enquiry, it was found

from the school record that the caste of Namdeo

Dhondiba Maddewad was recorded as "Koli" and the

date of admission of Namdeo Maddewad was shown to

be 22.7.1960. The vigilance cell stated in its

report dated 12.6.2001 in respect of Dilip Maddewad

that father of Dilip studied upto 12th standard and

in college record, the caste of Namdeo was

mentioned as "Mahadeo Koli". This oldest

information of Namdeo had not been noticed by the

vigilance cell in its report about enquiry of Dilip

Namdeo Maddewad. This oldest information was not

before the Committee while deciding caste claim of

Dilip Namdeo Maddewad and, therefore, the

petitioner cannot take benefit of validity granted

to the caste of said Dilip Namdeo Maddewad. Apart

from it, it is also said that the petitioner failed

to prove any relationship with said Dilip Maddewad.

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It is also recited in the said affidavit in reply

that in view of the aforesaid information gathered

during the course of enquiry of present

petitioner's case claim, the scrutiny committee

proposes to reopen the subject matter of Dilip s/o

Namdeo Maddewad and respondent No.2-committee is

praying such liberty to the Hon'ble Court.

13.

The said affidavit-in-reply also recites

that the caste claim of Vidya Shivram Boinwad is

also not of assistance to the petitioner, as said

Vidya is not relative of the petitioner as defined

under rule 2 (1) (f) of the Maharashtra Scheduled

Tribe (Regulation of Issuance & Verification of)

Certificate Rules, 2003. It is also stated that

the petitioner submitted information at the time of

interview on 27.4.2009. Moreover, the vigilance

officer also noted that the word "Mahadeo" noticed

in the school record is in different ink and

handwriting. The petitioner and his father filed

information in the prescribed form, namely,

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interview form and even the petitioner did not deny

or explain in reply, about the words which were

written in different ink and handwriting.

14. Moreover, it is also stated that the

information furnished by the petitioner about the

tradition, occupation, god/goddesses, surnames,

customs, culture, affinity, etc. were not

associated with the real Scheduled Tribe community

people and thus he has utterly failed to prove his

affinity and ethnic linkage towards the "Mahadeo

Koli" Schedule Tribe. Apart therefrom, it is

further stated that it is settled law that each

and every case has to be considered on its own

merits and in the present case, the scrutiny

committee was required to consider entire material

on record and then decide whether the caste claim

of the petitioner was correct and genuine, but the

petitioner failed to discharge burden of proving

his caste claim. It is also stated that the

petitioner and his father also could not rightly

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give answers about the mother tongue, festival,

marriage ceremony and customs and thus failed to

prove any affinity and ethnic linkage towards the

Mahadeo Koli, Scheduled Tribe community

15. It is further stated that it is also

settled principle of law that validity certificate

granted to close relative of a candidate bears a

persuasive

value. but such validity granted to

relative of a candidate cannot in law supersede the

primary document i.e. the certificate or document

denoting the caste either of the candidate himself

or his father or relatives from paternal side.

Accordingly, it is stated by Respondent No.2 that,

the petitioner was given sufficient opportunity of

hearing as directed by this Court in Writ Petition

No.3067/2006 by order dated 27.2.2009, but in spite

of that he failed to prove and establish that he

belongs to "Mahadeo Koli" Scheduled Tribe and hence

Respondent No.2 invalidated the said social status

claim of the petitioner, by the impugned order

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dated 19.5.2009, rightly. Hence, it is stated that

present petition bears no substance and is devoid

of any merits and same deserves to be dismissed.

16. Learned Counsel Shri R.P.Phatke for

Resp.No.2-Committee submitted that as regards

earlier order passed by Respondent No.2-Committee

on 31.12.2005, it was the grievance of petitioner

that no hearing was given to him and, therefore,

the matter was remanded back by this Court vide

order dated 27.2.2009 in Writ Petition No.3067/2006

and, accordingly, after remand of the matter to

Resp.No.2-Scrutiny Committee, the impugned order

dated 19.5.2009 was passed by Resp. No.2-Committee

after giving due opportunity of hearing to

petitioner, wherein he himself and his father

participated, as well as after considering the

documents produced by petitioner and also

considering vigilance cell report, which resulted

into invalidating the caste claim of the petitioner

as belonging to "Mahadeo Koli" Schedule Tribe.

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17. Moreover, learned Counsel Shri Phatke also

submitted that there is no substance in the

grievance made by the petitioner that the document

at serial No.21, which is the xerox copy of birth

certificate of his father issued by Gram Sevak,

wherein his caste is mentioned as Mahadeo Koli, was

not considered by Respondent No.2-Committee, since

Respondent No.2-Committee has considered the

documents at serial Nos. 6,12,17 and 21, wherein

caste is mentioned as "Koli Mahadeo" and more

particularly copy of birth certificate in respect

of petitioner's father issued by Gram Sevak which

discloses his date of birth as 3.2.1964 and

commented that the said documents are of very

recent period and issued on personal knowledge and,

therefore, could not be considered to be conclusive

proof for the tribe claim of the petitioner.

18. Besides that, learned counsel for the

respondents also submitted that although the

petitioner produced caste validity certificate of

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his cousin, namely, Dilip Namdeo Maddewad, the

petitioner failed to produce the affidavit of the

said blood relative and family tree, as well has

not submitted supportive document to confirm his

relationship with Dilip Maddewad and, therefore,

Respondent No.2-Committee rightly rejected the said

documents.

19.

                  Moreover,       learned       counsel             for         the
                      
     Respondents       argued     that    the   petitioner            has       not

produced any school record of his forefathers to

show that they belong to Koli Mahadeo Scheduled

Tribe and the school record of the petitioner's

blood relations shows the caste recorded as "Koli",

as well as he has not produced the sufficient

documentary evidence in support of his claim and he

utterly failed to prove affinity and ethnic linkage

towards Mahadeo Koli, Scheduled Tribe. It is also

submitted that the petitioner has not produced

record prior to 1950 in respect of his tribe claim

and also the information furnished by petitioner

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about the tradition, occupation, god/goddess,

surnames, customs, culture, affinity, following

etc. to establish that he belong to Mahadeo Koli

Scheduled Tribe community and, therefore, the

scrutiny committee rightly arrived at conclusion

that the petitioner does not belong to Mahadeo

Koli Scheduled Tribe and accordingly, invalidated

his tribe claim.

20. Accordingly, learned Counsel for the

Respondent-Committee urged that Respondent No.2 has

taken comprehensive view of the matter and after

considering the documents and after giving hearing

to the petitioner, invalidated his tribe claim and

hence, no interference therein is warranted, in the

present petition.

CONSIDERATION:-

21. We have perused the contents of the

petition, its annexures, vigilance cell report and

the impugned order dated 19.5.2009, and also

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considered the judgments relied upon by learned

counsel parties, as well as considered the

submissions advanced by the learned counsel for the

parties, anxiously, and at the outset, as per the

directions issued in Writ Petition No.3067 of 2006

vide order dated 27.2.2009, it is apparent that

Respondent No.2 Committee has given personal

hearing to the petitioner on 27.4.2009 and

thereafter

passed the impugned order dated

19.5.2009. As regards the grievance made by the

petitioner that document at serial No.21 which is

xerox copy of the birth certificate of his father

issued by Gram Sevak showing his caste as "Mahadeo

Koli" was not considered by the Committee, it

appears that there is no substance in the said

grievance, since the impugned order dated 19.5.2009

indicates that the Committee considered the

documents at serial Nos. 6,12,17 and 21, wherein

caste is mentioned as "Koli Mahadeo" and more

particularly in the birth certificate issued by

Gram Sevak in favour father of the petitioner and

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the committee commented that it was a very recent

document and issued on the basis of personal

knowledge and hence could not be considered to

substantiate the tribe claim of the petitioner.

22. Moreover, the vigilance cell report

discloses that petitioner's father, namely, Baliram

Mahadu Maddewad was resident of village Barbada,

Tq. Naigaon ig(Kh) District Nanded and he took

education at Barbada and the Vigilance Officer

checked the school register and found that as per

entry No.125 therein, date of birth of Baliram was

shown to be 3.2.1964 and in caste column, his caste

was mentioned as Hindu (Koli Mahadeo). However, it

is observed in the vigilance report that the word

"Mahadeo" appears to have been written

subsequently. Moreover, the said report also

discloses that petitioner's uncle, namely, Shivram

Mahadu Maddewad also took education in school at

village Badbada and his school register was also

checked by the Vigilance Officer, wherein caste of

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Shivram was mentioned as "Koli Mahadeo", but the

word "Mahadeo" was written subsequently. So was the

position with another uncle of the petitioner,

namely, Kashiram Mahadu Maddewad, who also was

educated at village Badbada and entry No.395

regarding caste in the school register showed his

caste as "Koli Mahadeo", but in his case also, the

word "Mahadeo" was written subsequently. The said

report further discloses that another uncle of the

petitioner, namely, Vikram Mahadu Maddewad also

took education at village Badbada and entry no.515

in the school register mentions his cast as "Koli"

only. Accordingly, the Vigilance Officer obtained

copies of the said entries from the school

register. Thus, the said report discloses that the

word "Mahadeo" has been interpolated later on in

different ink and in different handwriting in the

school register in respect of petitioner's father

Baliram Mahadu Maddewad, two uncles, namely,

Shivram and Kashiram Maddewad, but the school

record of another uncle Vikram Maddewad discloses

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his caste as "Koli" only and not "Mahadeo Koli". We

issued directions and called for aforesaid original

school register which was produced by the Head

Master of concerned school and we perused the above

referred entries in the said register and the said

record speaks volumes for itself.

23. Besides that, it also appears that

Respondent No.2-Committee has also considered the

documents produced by the petitioner before it and

obtained information from the petitioner about

tradition, occupation, God/Goddesses, Surnames,

customs, culture, affinity etc. and came to the

conclusion that the petitioner failed to prove his

affinity and ethnic linkage towards "Mahadeo Koli"

Scheduled Tribe. So also, it further appears that

Respondent No.2-Committee considered the validity

certificates granted to blood relatives of the

petitioner and the said certificates have been

discussed by the Committee in Statement "A" in the

impugned order and dealt with it and came to the

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conclusion that those documents cannot be held as

conclusive proof to determine the petitioner's

Tribe Claim, since those are of very recent period

and from 1970 to 2001 i.e. after passing the first

Presidential Order of 1950, notifying the Scheduled

Tribes.

24. In the circumstances, we are of the

considered view that Respondent No.2-Committee gave

personal hearing to the petitioner, as well as

considered the various documents produced before it

and also considered the Vigilance Cell report, and

also enquired and obtained the information about

the petitioner's affinity and ethnic linkage

towards "Mahadeo Koli" Scheduled Tribe and

thereafter passed the impugned order dated

19.5.2009, invalidating the tribe claim of the

Petitioner, and there does not appear to be any

flaw therein and the said order cannot be faulted

with. Accordingly, we do not find any glaring

infirmity or perversity in the impugned order, and

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therefore, no interference therein is warranted in

the extra-ordinary writ jurisdiction of this Court.

25. In the result, present petition bears no

substance and same is devoid of any merits and

hence, same is dismissed. Rule stands discharged.

26. In view of dismissal of Writ Petition,

Civil Application No.9066 of 2010 does not survive

and hence, same also stands dismissed.

(SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.)

pnd/wp5066.09