Bombay High Court
Ku. Kalapana Dyaneshwar Bende ( ... vs State Of Maharashtra Thr. Tribal ... on 24 October, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2338 OF 2016.
PETITIONER: Ku.Kalapana Dyaneshwar Bende,
(Now Sau.Kalpana w/o Narendra Raut)
aged 33 years, Occu: Service in the Bank
ig of India, r/o LIC Colony, Nagpur.
: VERSUS :
RESPONDENTS: 1) State of Maharashtra, through its
Tribal Development Department,
Mantralaya, Mumbai.
2) The Scheduled Tribe Caste Certificate
Scrutiny Committee, through its
member Secretary and Deputy Director
"Adivasi Bhawan", Giripeth, Amravati
Road, Near R.T.O. Office, Nagpur,Tq.
and distt.Nagpur.
3) State Bank of India, through its
Chief Manager (Personnel), Personnel
Selection Zonal Office, Kingsway, Post Bag
No.37, Nagpur, Tq. and Distt.Nagpur.
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Mr.A.A.Naik, Advocate for the petitioner.
Smt.K.R.Deshpande, A.G.P. for respondent nos.1 and 2.
Mr.S.N.Kumar, Advocate for the respondent no.3.
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CORAM: B.R.GAVAI AND
V.M.DESHPANDE, JJ.
DATE: 24th OCTOBER, 2016.
ORAL JUDGMENT (Per V.M.Deshpande, J.)
1. Rule. Rule is made returnable forthwith and is taken
for final hearing by consent of parties.
2. The petitioner has invoked extraordinary Writ
Jurisdiction of this Court under Article 226 of the Constitution of
India to challenge the order passed by the Scheduled Tribe Caste
Certificate Scrutiny Committee (herein after referred to as
'respondent no.2'), dated 30th of March, 2016.
3. By the impugned order, the respondent no.2 reached to
the conclusion that the petitioner does not belong to "Halba" -
Scheduled Tribe and therefore, her claim towards the same is held
as invalid. Further, her caste certificate granted by the Executive
Magistrate, Nagpur vide Revenue Case No.34/M.R.T.-81/87-88
dated 11th of July, 1988 is declared as cancelled and the same is
confiscated.
4. We have heard Shri A.A.Naik, the learned counsel for
the petitioner, Smt.K.R.Deshpande, the learned Assistant
Government Pleader for respondent nos.1 and 2 and Shri
S.N.Kumar, learned counsel for respondent no.3, the employer of
the petitioner, in extenso.
5. According to the learned counsel for the petitioner, the
respondent no.2 has erred while reaching to the conclusion by
overlooking the pre-constitutional documents pertaining to the
paternal grand father of the petitioner and therefore, he submitted
that the present case is squarely covered by the law laid down by
this Court in the case of Priya Pravin Parate ..vs.. Scheduled
Tribes Caste Certificates Scrutiny Committee, Nagpur and ors.
reported in 2013(1) Mh.L.J. 180.
The learned counsel invited our attention to the
affidavit filed on behalf of the petitioner on 15 th of October, 2016
and the decision of the Division Bench of this Court in Writ
Petition No.2462 of 2005 (Rahul Vishnupant Bende ..vs.. The
Scheduled Tribes Caste Certificates Scrutiny Committee and ors.)
dated 5th of August, 2016, by which a caste validity certificate in
respect of the caste "Halbi" was ordered to be given to petitioner
Rahul Vishnupant Bende in said writ petition, to urge that since
the first cousin of the petitioner has been granted the validity
certificate by this Court, the petitioner is also entitled for the same
in view of the law laid down by this Court in the case of Apoorva
d/o Vinay Nichale ..vs.. Divisional Caste Certificate Scrutiny
Committee No.1 and ors. reported in 2010(6) Mh.L.J. 401.
6. The learned Assistant Government Pleader has
supported the impugned order passed by the respondent no.2.
7. It is not in dispute that after remand from this Court the
case of the petitioner was again taken up for consideration by the
respondent no.2. The impugned order shows that the Vigilance
Cell conducted enquiry and submitted its report to Committee on
30th of December, 2013.
8. The petitioner has filed the genealogical tree before the
respondent no.2 as well before this Court. The impugned order
makes a reference that during the enquiry the Vigilance Cell
visited Municipal Council, Achalpur and verified the original birth
register of the year 1929 and as per the original record the entry
of male child born to Nathu Dawal Halbi is correct. The
genealogical tree shows that Nathu Dawal Bende is the paternal
grand-father of the petitioner. Similarly, the pre-constitutional
document on record shows that against the name of cousin
paternal grand-father Narayan, the caste is mentioned as 'Halbi'.
There is a reference in the impugned order in respect of cousin
grant-father of the petitioner in respect of the year 1910 wherein
word "Halbi Koshti" is mentioned.
9. This Court in Priya Parete's case (cited supra) has held
that while dealing with the documentary evidence, a greater
reliance has to be placed on pre-constitutional documents because
they furnish higher degree of probative value to the declaration of
status of tribe. In this aforesaid decision, this Court has also
observed that merely because some stray entries as "Koshti" are
recorded in respect of caste of some of the relative of petitioners
from their paternal side; the voluminous documentary evidence of
pre-Constitution era which clearly certifies the petitioners great-
grand father to be 'Halbi', could not have been lightly brushed
aside.
From the impugned order of the respondent no.2, it
appears that the said Committee has brushed aside the pre-
constitutional documents on the basis of recording a finding that
the petitioner has failed to prove her claim by way of affinity test.
In our view, such a reasoning is contrary to the law laid down by
the Hon'ble Apex Court in the case of Anand ..vs.. Committee for
Scrutiny (supra) and Verification of Tribe Claims and others,
reported in 2011(6) Mhj.L.J. 919. It would be useful to
reproduce paragraph 18 of the said decision hereunder :-
18. It is manifest from the afore-extracted paragraph
that the genuineness of a caste claim has to be
considered not only on a thorough examination of the
documents submitted in support of the claim but also
on the affinity test, which would include the
anthropological and ethnological traits etc., of the
applicant. However, it is neither feasible nor
desirable to lay down an absolute rule, which could be
applied mechanically to examine a caste claim.
Nevertheless, we feel that the following broad
parameters could be kept in view while dealing with a
caste claim.
(i) While dealing with documentary evidence,
greater reliance may be placed on pre-
Independence documents because they furnish a
higher degree of probative value to the
declaration of status of a caste, as compared to
post-Independence documents. In case the
applicant is the first generation ever to attend
school, the availability of any documentary
evidence becomes difficult, but, that ipso facto
does not call for the rejection of his claim. In
fact the mere fact that he is the first generation
ever to attend school, some benefit of doubt in
favour of the applicant may be given. Needless
to add that in the event of a doubt on the
credibility of a document, its veracity has to be
tested on the basis of oral evidence, for which an
opportunity has to be afforded to the applicant.
(ii) While applying the affinity test, which
focuses on the ethnological connections with the
Scheduled tribe, a cautious approach has to be
adopted. A few decades ago, when the tribes
were somewhat immune to the cultural
development happening around them, the
affinity test could serve as a determinative
factor. However, with the migrations,
modernization and contact with other
communities, these communities tend to develop
and adopt new traits which may not essentially
match with the traditional characteristics of the
tribe. Hence, affinity test may not be regarded
as a litmus test for establishing the link of the
applicant with the scheduled tribe. Nevertheless,
the claim by an applicant that he is a part of a
scheduled tribe and is entitled to the benefit
extended to that tribe, cannot per se be
disregarded on the ground that his present traits
do not match his tribes peculiar anthropological
and ethnological traits, deity, rituals, customs,
mode of marriage, death ceremonies, method of
burial of dead bodies, etc. Thus, the affinity test
may be used to corroborate the documentary
evidence and should not be the sole criteria to
reject the claim."
In view of the law laid down by the Apex Court in
Anand's case, in our view, the order passed by respondent no.2
cannot stand to the scrutiny of law especially in the light of
availability of pre-independence and pre-constitutional documents
on record to show that against the name of paternal grand-father
caste "Halbi" is mentioned.
10. From the genealogical tree, it is clear that grand father
of petitioner Nathu was having six sons. The name of the father
of the petitioner is Dhyneshwar. The name of one of the sons of
Nathu is Vishnu. He is having three sons Ashok, Vinay and Rahul.
Rahul was required to approach this Court by filing Writ
Petition No.2462 of 2005 since his claim that he belongs to 'Halbi'
was negatived by the Caste Scrutiny Committee. The Division
Bench of this Court on 5th of August, 2016, by keeping reliance on
the law laid down by this Court in Priya Parte's case (cited supra)
found that the rejection of claim of Rahul by the Caste Scrutiny
Committee was not in accordance with law and therefore, the
order was set aside and the Scheduled Tribe Caste Scrutiny
Committee, Amravati, present respondent no.2, was directed to
issue validity in favour of Rahul as belonging to "Halbi" Scheduled
Tribe.
Thus, this Court has already granted validity certificate
to the near blood relation of the petitioner. In that view of the
matter, the law laid down by this Court in Apoorva Nichale's case
(cited supra) will operate with full force. Resultantly, the rule is
made absolute in terms of prayer Clauses (1) and (2) of the
petition. Respondent no.2 is hereby directed to issue validity
certificate in favour of the petitioner within a period of four weeks
from today. No costs.
JUDGE JUDGE
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