Kum.Nehashree Dnyaneshwar ... vs State Of Maharashtra (Through ...
2016 Latest Caselaw 1465 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                   
                       ORDINARY ORIGINAL  CIVIL  JURISDICTION

                                   WRIT PETITION NO.1404 of 2014




                                                               
     1. Kum.Nehashree Dnyaneshwar Sonkusare )
     D/o Dnyaneshwar Mahadeo Sonkusare                 )
     Indian Inhabitant, aged about 19 years,           )




                                                              
     permanently residing at 7/4, BPCL (Bharat )
     Petroleum Corporation Ltd) Staff Colony,          )
     Aziz Baugh, R.C.Marg,Chembur,                     )
     Mumbai-400 074.                                   ).. Petitioner




                                            
                 vs
     1.  State of Maharashtra ig                       )
     (Through  Secretary,Tribal Welfare                ) 
     Department,Mantralaya, Mumbai-400 032 )
     Office of the Joint Commissioner-Cum-Vice )
                            
     Chairman Scheduled Tribe Certificate              )
     Scrutiny Committee) Konkan Division, TMC )
     Ward Office,Vedant Complex, Opp Kores  )
     Company, Vartaknagar, Thane (W)-400 606 )
                                                       )
      


     2.  Dr.D.G.Pol Foundation, YMT Dental             )
     College and Hospital through its Dean,            )
   



     Institutional Area Sector-4, Kharghar,            )
     Navi Mumbai-410 210                               )
                                                       )
     3.   Maharashtra University of Health             )





     Sciences Through its Vice Chancellor having )
     its Office at Vani Dindori Road, Mhasrul,  )
     Nasik-422 004 Maharashtra                         )..  Respondents
                                ....
     Mr.Vedchetan Patil i/b Mr.Kailash Rawandhe





     for Petitioner
     Mr.G.W.Mattos Assistant Government Pleader
     for State-Respondent nos.1 and 2.
     Mr.Karan Bhosale a/w Ms.Tanmayi Bhavsar 
     i/b Ms.Neha D.Bhosale for Respondent no.3.




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                       CORAM:     S.C.DHARMADHIKARI &
                                     G.S.KULKARNI, JJ   




                                                                
     JUDGMENT  RESERVED ON:            4TH APRIL, 2016 
     JUDGMENT PRONOUNCED ON:     13TH APRIL, 2016




                                                               
     JUDGMENT (Per G.S.Kulkarni, J)                    

1. This petition under Article 226 of the Constitution of India

challenges the order dated 19th August, 2013 passed by the Scheduled

Tribe Certificate Scrutiny Committee, Konkan Division, Thane (for short

'Caste Scrutiny Committee') whereby the application of the petitioner for

validation of her caste certificate, certifying that she belongs to 'Halba

scheduled tribe' has been rejected invalidating the caste certificate issued

to the petitioner.

2. Conspectus of facts as would fall for our consideration are

thus :

The petitioner is a student of Bachelor of Dental Sciences

course. In June 2012 at the time of filing of the petition the petitioner

was studying in the first year in respondent No.3-Institution. The

petitioner claimed to belong to the 'Halba' tribe which is listed as a

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schedule tribe in the Presidential Order. A caste certificate was issued to

the petitioner by the Deputy Collector and Special Land Acquisition

Officer,Mumbai Suburban District dated 30th June 2012 certifying that the

petitioner belonged to the 'Halba' tribe.

3. For education purposes, the petitioner had made an

application to the caste scrutiny committee seeking validity of the caste

certificate. This application was forwarded through the Principal,

N.G.Acharya and D.K.Marathe College of Arts, Science and Commerce,

Chembur, Mumbai. In support of her claim, the petitioner submitted

several documents which inter alia included her School leaving Certificate,

School leaving certificate of her father, Domicile certificate, Caste

certificate of her cousin sister, cousin brother, School leaving certificate of

her uncle etc. All these documents according to the petitioner would show

that the petitioner and her relatives belonged to 'Halba' schedule tribe.

These documents are set out seriatim in paragraph 2 of the impugned

order passed by the Caste Scrutiny Committee.

4. The Caste Scrutiny Committee which is governed under

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provisions of the Maharashtra Scheduled Castes,Scheduled Tribes

Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward

Classes and Special Backward Category (Regulation of Issuance &

Verification of) Caste Certificate Act, 2000 and Rules framed thereunder

proceeded to consider the application of the petitioner. The petitioner's

case was accordingly handed over for a vigilance inquiry to the ' Vigilance

Cell' which submitted a report on 7th June, 2011. The report recorded

certain information about the traditional occupation of the petitioner's

tribe and further recorded that the documents submitted by the petitioner

show that she belongs to the Halba tribe. The Research Officer of the

Vigilance cell however made a remark that the petitioner's original place

of residence was Kurud, Taluka Desaiganj District Gadchiroli. The Caste

Scrutiny Committee, therefore, by its letter dated 11 th January 2012

called upon the petitioner to submit her explanation on the said report of

the vigilance cell. By her letter dated 17 th January 2012, the petitioner

submitted an explanation to the said report. A personal hearing was

granted to the petitioner on 10 th July, 2012, wherein the petitioner's father

appeared and requested to submit some more documents. Again on 30 th

October, 2012 the petitioner along with her father were called for a

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personal hearing wherein the petitioner's father conceded to the position

that the permanent place of residence of the petitioner's family was Taluka

Desaiganj, in Gadchiroli District though the application was made before

the Caste Scrutiny Committee at Thane.

5. The Caste Scrutiny Committee, thus thought it appropriate

that as the actual place from where the petitioner's family hails is

Gadchiroli District, it was desirable that the Committee forwards the

matter to the Gadchiroli Committee to undertake further vigilance enquiry

so that the vigilance cell attached to the said Committee can visit the

original place of residence of the petitioner and accordingly submit a

report. The vigilance Committee attached to the Gadchiroli Caste Scrutiny

Committee conducted an inquiry and submitted a report dated 13 th May

2013, to the Thane Caste Scrutiny Committee . The vigilance Cell of the

Gadchiroli Committee recorded a statement of the petitioner's cousin

grand-father Shri Kevalram Sitaram Sonkusare aged 90 years (elder

brother of the petitioner's grand father) who furnished information

interalia on the traits, characteristics, customs and traditions of the

community to which the family of the petitioner belonged. Shri

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Kevalram, the cousin grand-father, stated that their caste was 'Koshti' and

the family originally belonged to Kudur, Taluka Vadsa (De) District

Gadchiroli. It was stated that they did not possess any agricultural land

from their ancestors. It was stated that the traditional occupation of the

community was weaving. The genealogy of the petitioner's family was

also furnished by him as also a copy of an extract of the school admission

general register of the petitioner's parental relatives namely the cousin

uncle and cousin aunt which showed the caste as 'Koshti'. The Research

Officer attached to the vigilance cell of the Gadchiroli Committee

recorded that the traits, characteristics, customs etc of the petitioner do

not match with that of 'Halba' schedule tribe community.

6. This report of the vigilance cell of the Gadchiroli Committee

was forwarded to the petitioner vide letter of the Thane Committee dated

17th May, 2013. The petitioner was called upon to submit her explanation.

The petitioner submitted an explanation by her letter dated 20 th June,

2013. A personal hearing was thereafter granted to the petitioner and her

father on 10th July, 2013.

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7. The Committee taking into account and scrutinizing all the

documents also as submitted by the petitioner observed that these

documents as submitted by the petitioner of her parental relatives though

show that the petitioner belonged to the 'Halba' tribe, these documents

were documents post-Presidential Order, which were having less probative

value. It was observed that the petitioner's family in fact hailed from

Kudur Taluka Vadsa (De) District Gadchiroli. In the light of the second

vigilance cell inquiry, it was found that the petitioner belonged to 'Koshti'

community and was not belonging to 'Halba' tribe as claimed. The

Committee observing that the petitioner has failed in the affinity test,

rejected the caste claim of the petitioner and directed that the caste

certificate dated 13th June 2010 issued to her by the Deputy Collector be

cancelled and confiscated. The Committee also observed that persons like

the petitioner are ready and willing to abandon her original caste and

jump into Scheduled Tribe category and this act is a wholesale fraud on

the facilities and concessions meant for genuine, Scheduled Tribes in the

State of Maharashtra.

8. In assailing the impugned order, learned counsel for the

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petitioner submits that the impugned order passed by the Caste Scrutiny

Committee is erroneous inasmuch as the Caste Scrutiny committee has

invalidated the claim of the petitioner only on the basis of the affinity test

disregarding the documents placed on record which conclusively proved

that the petitioner's belonged to 'Halba' tribe. It is submitted that the

petitioner's father, cousin brother and cousin sister were holding caste

certificate belonging to 'Halba' tribe. He submits that the impugned order

could not have been passed on the basis of the statement of the

petitioner's cousin grand-father who was 90 years of age and relying on

the extract of School Admission General Register in respect of the

petitioner's cousin uncle Shri Nakatu Kevalram Sonkusare and cousin aunt

Smt. Sumitra Kevalram Sonkusare that they belong to 'Koshti' caste. It is

submitted that the first vigilance cell's report of the Thane Committee was

in favour of the petitioner and therefore, the second vigilance report could

not have been taken into consideration by the Caste Scrutiny Committee.

It is submitted that the Committee ought to have appreciated that fore-

fathers of the petitioner were inhabitants of Maharashtra and all were

belonging to 'Halba' caste. The Committee could not have over-looked the

documents pertaining to the petitioner's father, her cousin sister Ms.Pooja

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Visheshwar Sonkusure and her cousin brother Shri. Rahul Vishveshwar

Sonkusare which went to show that the Petitioner belonged to the Halba'

tribe. Further the caste certificate of the petitioner's uncle Vishweshwar

Mahadeo Sonkusare dated 26th May 1987 also recorded his caste as

'Halba'. It is therefore, submitted that the impugned order passed by the

Caste Scrutiny Committee be set aside on the ground that it is erroneous

and violative of the petitioner's right guaranteed under Articles 314, 21,

14, 15 (4) and 16 (4) of the Constitution of India. In support of the

submissions, the learned counsel for the petitioner has placed reliance on

the following decisions :

(I) Sharad Yadav vs The Scheduled Tribe Caste Scrutiny Committee & Anr. (Dated 10.10.2013) (Writ Petition No.6171 of

2012).

(ii) Sou.Priya P.Parate vs Scheduled Tribes Caste Certificates Scrutiny Committee & Ors. (Dated 4.10.2012)(Writ Petition No.2571 of 2001)

(iii) Pravin G.Kumbhare vs The State of Maharashtra & Ors. (Dated 25.10.2012) (Writ Petition No.2177 of 2010)

9. On the other hand, the learned Assistant Government Pleader

appearing for respondent nos.1 and 2 has supported the impugned order

passed by the Caste Scrutiny Committee.

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10. We have heard learned counsel for the parties and with their

assistance we have perused the documents as placed on record on this

petition as also the impugned order.

11. In the present case, the Caste Scrutiny Committee initially

conducted a vigilance inquiry through the vigilance cell attached to it

which supported the report on the basis of the documents as submitted by

the petitioner. These documents were principally documents of the

petitioner namely Birth certificate, School leaving certificate, and Caste

certificate dated 30th June, 2010 issued by the Deputy Collector and

Special Land Acquisition Officer Mumbai Suburban Region, Mumbai and

the documents of her father, cousin sister and cousin brother. These

documents though recorded the caste of the petitioner and of those

relatives was 'Halba' tribe, however not a single caste certificate was

validated by any Caste Scrutiny Committee. The oldest document as

submitted by the petitioner was the school leaving certificate of the

petitioner's uncle Shri Vishweshwar Mahadeo Sonkusare issued by Shri

Kolbaswami High School, Gandhibag, Nagpur, showing the caste as 'Halba'

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and date of admission as 15 th August, 1978 as also the Caste Certificate

issued in his favour by the Executive Magistrate, Nagpur dated 26th May

1997 showing the caste recorded as 'Halba. Further the Caste certificate

issued to the petitioner's father (name of the issuing authority being

illegible) was also of a subsequent period, being issued on 27 th August,

1981. These documents admittedly are documents Post Presidential

Orders and would have less probative value. Further, what these

documents reveal, also needs to be substantially corroborated by other

cogent material namely any pre-Constitution documents, affinity test etc.

These documents solely could not have assisted the Petitioner to succeed

in the claim before the Caste Scrutiny Committee.

12. The Vigilance Cell attached to Thane Caste Scrutiny

Committee considering the material placed before it recorded that the

petitioner's original place of residence was Kurud, Taluka Desaiganj

District Gadchiroli, as informed to the Vigilance Cell by the petitioner's

letter during the course of inquiry. The Committee therefore,

appropriately forwarded the case of the petitioner for an inquiry to be

conducted by the Vigilance Cell attached to Gadchiroli Caste Scrutiny

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Committee. As noted by us in the foregoing paragraphs, the vigilance Cell

recorded the statement of the cousin grand-father of the petitioner who

was 90 years of age as also collected documents of petitioner's cousin

uncle and cousin aunt. An extensive inquiry conducted by the Gadchiroli

vigilance cell revealed that the petitioner belonged to 'Koshti' caste and

not to the 'Halba' tribe as claimed by her. All traits, characteristics,

customs of the petitioner's family were studied by the vigilance cell and it

was noticed that they did not match with that of 'Halba' schedule

community There was a large scale discrepancy, in the information as

obtained in the vigilance inquiry and more particularly the affinity test

both of which did not match with the traits of 'Halba' tribe. This

completely falsified the claim of the petitioner that she belonged to the

'Halba' tribe. Further, the documents which were submitted by the

petitioners being of a recent origin had less probative value. Moreover, all

these documents were post-Presidential-Order. We therefore, do not find

any infirmity or perversity in the observations of the Committee in regard

to the documents as made out in paragraph 8 of the impugned order. It

cannot be over-looked that the petitioner and relatives on her parental

side were not in a position to give any traits, tradition, customs, peculiar

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to 'Halba tribe while making a claim that they belong to 'Halba' tribe. If

this was the position then it can certainly be said there was no error on

the part of the Committee in observing that the petitioner had failed to

succeed in the affinity test. The affinity test cannot be disregarded and

more so when the documents which the petitioner has relied upon by no

chance could be considered to be so conclusive that the affinity test can be

regarded to be secondary or of a nature that it would become

inconsequential. In our opinion, in the present case the affinity test had

become all the more vital to reach a concrete conclusion as to whether the

claim of the petitioner as made is genuine.

13. We have also examined the decisions as relied upon on

behalf of the petitioner. In all these cases, there were old, pre-Constitution

documents and documents pre-Presidential Order and considering these

documents the Court had made observations that the affinity test may be

used to corroborate the documentary evidence and should not be sole

criteria to reject the the claim. In those cases, these pre-Constitution

documents were overlooked and failure of the affinity test was considered

more relevant by the Caste Scrutiny Committee. Considering the facts of

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the present case, certainly this is not the position, in fact, it is just the

reverse. There are no documents either pre-Constitution or prior to the

issuance of the Presidential Order. In these circumstances, the affinity test

had become all the more vital and pertinent. The affinity test revealed that

the petitioner and her relatives on parental side were not in a position to

support any of the traits, characteristics, customs of the 'Halba' tribe.

Solely the documents as submitted by the petitioner as observed by us,

were of no assistance to the petitioner to succeed in her claim before the

Caste Scrutiny Committee.

14. In the facts of the present case as noted above, we are of the

considered opinion, that the findings of the Caste scrutiny committee that

the petitioner has falsely obtained the caste certificate are appropriate.

The petitioner was having full knowledge that she does not belong to

'Halba' tribe. In the present case, the petitioner has not pleaded and/or

proved her bonafides in staking her claim that she belongs to 'Halba' tribe.

Such act of making a false claim in fact would take away the entitlement

of a bonafide scheduled tribe candidate. The petitioner falsely asserting

that she belonged to 'Halba' tribe had obtained admission for the Bachelor

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of Dental Sciences course. In this context, it would be useful to refer to the

observations of the Constitution Bench decision of the Supreme Court in

the case of "State of Maharashtra & ors Vs. Milind & Ors."1 wherein the

Supreme Court has categorically observed that if such benefits are taken

away by those for whom they are not meant, then this would bring about

a noble and laudable object to confer certain privileges and benefits on

people belonging to scheduled tribe, by way of reservation in educational

institutions and/or appointment in services of the State, to be defeated. It

would lead to making mockery of the very reservation against the scheme

of the Constitution. The observations of the Supreme Court need to be

noted and read thus:

34. "In order to protect and promote the less fortunate or unfortunate people who have been suffering from social

handicap,educational backwardness besides other disadvantages, certain provisions are made in the Constitution with a view to see that they also have the opportunity to be on par with others in the society, certain

privileges and benefits are conferred on such people belonging to Scheduled Tribes, by way of reservations in admission to educational institutions (professional colleges) and in appointments in services of State. The object behind these provisions is noble and laudable besides being vital in

bringing a meaningful social change. But, unfortunately even some better placed persons by producing false certificates as belonging to scheduled Tribes have been capturing or cornering seats or vacancies reserved for Scheduled Tribes

1.AIR 2001 SUPREME COURT 393

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defeating the very purpose for which the provisions are made

in the Constitution. The Presidential Orders are issued under Articles 341 and 342 of the Constitution recognizing and identifying the needy and deserving people belonging to

Schedule Castes and Scheduled Tribes mentioned therein for the constitutional purpose of availing benefits of reservation in the matters of admissions and employment. If these benefits are taken away by those for whom they are not

meant, the people for whom they are really meant or intended will be deprived of the same and their suffering will continue. Allowing the candidates not belonging to Scheduled Tribes to have the benefit or advantage of reservation either

in admissions or appointments leads to making mockery of the very reservation against the mandate and the scheme of

the Constitution."

15. In "Punjab National Bank & another vs Vilas S/o

Govindrao Bokade & Another"2 in dealing with a similar case,

pertaining to the 'Koshti' and Halba' tribe in his concurring judgment,

Justice V.S.Sirpurkar (as His Lordship then was) made the following

observations :

"20. The situation is no different in case of the present

respondent. He also came to be appointed and/or promoted way back in the year 1989 on the basis of his caste certificate which declared him to be Scheduled Tribe. Ultimately, it was found that since a "Koshti" does not get the status of a Scheduled Tribe, the Caste Scrutiny Committee invalidated

the said certificate holding that the respondent was a Koshti and not a Halba. I must hasten to add that there is no finding in the order of the Caste Scrutiny Committee that the petitioner lacked in bonafides in getting the certificate. I say

2.(2008) 14 Supreme Court Cases 545

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this to overcome the observations in para 21 in Sanjay

K.Nimje case. But it is not a case where the respondent pleaded and proved bonafides. Under such circumstances the High Court was fully justified in relying on the observations

made in Milind case. The High Court has not referred to the judgment and order in Civil Appeal No.3375 of 2000 decided on 12.12.2000 to which a reference has been made above. However, it is clear that the High Court was right in holding

that the observations in Milind case apply to the case of the present respondent and he stands protected thereby."

16. The decision in Punjab National Bank vs Vilas (supra) was

considered by the Supreme Court in the case of "Kavita Solunke vs State

of Maharashtra & others"3 wherein Their Lordships made the following

observations :

20" The decision of this Court in State of Maharashtra vs Sanjay K.Nimje relied upon bythe learned counsel for the

respondent was distinguished even by V.S.Sirpurkar, J in Vilas case. The distinction is primarily in terms whether the candidate seeking appointment or admission is found guilty of a conduct that would disentitle him/her from claiming any

relief under the extraordinary powers of the Court. This Court found that if a person secures appointment or admission on the basis of false certificate, he cannot retain the said benefit obtained by him/her. The courts will refuse to exercise their discretionary jurisdiction depending upon the facts and

circumstances of each case."

3.(2012) 8 Supreme Court Cases 430

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17. In "Shalini vs New English High School Association &

Ors."4 the Supreme Court taking into consideration catena of decisions on

the issue observed thus :

9. "It is not the intent of law to punish an innocent

person and subject him to extremely harsh treatment. That is why this Court has devised and consistently followed that taxation statutes which almost always work to the pecuniary detriment of the assessee must

be interpreted in favour of the assessee. Therefore,as we see it, on one bank of the Rubicon are the cases of

dishonest and mendacious persons who have deliberately claimed consanguinity with the scheduled Castes or Scheduled Tribes etc whereas on the other

bank are those marooned persons who honestly and correctly claimed to belong to a particular Scheduled Caste/Scheduled Tribe but were later on found by the relevant authority not to fall within the particular group envisaged for protected treatment. In the former

group persons would justifiably deserve the immediate cessation of all benefits including termination of

services. In the latter, after the removal of the nebulousness and uncertainty, while the services or benefits already enjoyed would not be negated they would be dis-entitled to claim any further or continuing

benefit on the predication of belonging to the said Scheduled Caste./Scheduled Tribe."

18. In view of the above clear position in law as enunciated in the

above decisions as applied to the facts in hand, we have no hesitation to

4.(2013) 16 Supreme Court Cases 526

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come to a conclusion that the Petitioner had falsely obtained the caste

certificate and further the application before the Caste Scrutiny Committee

to ascertain validity of such caste certificate, was also far from bonafide.

19. In view of the above deliberation, we find that there is no

illegality or any perversity in the findings recorded by the Caste Scrutiny

Committee in passing of the impugned order. The writ petition is devoid

of merits and is accordingly rejected. No order as to costs.

     (G.S.KULKARNI, J.)                                    (S.C.DHARMADHIKARI, J.)