Ibrahim Khan S/O Mohd. Khan vs The State Of Mah. Thr. Secty & 2 Otrs
2017 Latest Caselaw 5842 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH, NAGPUR


                    Writ Petition No.1260 of 2009


  Ibrahim Khan s/o Mohd. Khan,
  Aged about 28 years,
  Occupation - Nil,
  R/o Raj Mohalla,
  At Post - Deoulghat,
  Tah. Buldhana,
  District Buldhana.                                 ... Petitioner


       Versus


  1. The State of Maharashtra,
     through its Secretary,
     Department of Tribal Development,
     Mantralaya,
     Mumbai-32.

  2. The Scheduled Tribe Certificate
     Scrutiny Committee,
     Amravati Division,
     Amravati.

  3. Zilla Parishad, Aurangabad,
     through its Chief Executive Officer,
     Tq. & Dist. Aurangabad.                         ...Respondents


  Shri Gopal G. Mishra, Advocate for Petitioner.
  Shri   C.A.   Lokhande,   Assistant   Government   Pleader   for   Respondent 
  Nos.1 and 2.




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                Coram : R.K. Deshpande & Manish Pitale, JJ.

                Dated  : 10    August, 2017
                            th
                                            


   Oral Judgment (Per R.K. Deshpande, J.) :

1. The challenge in this petition is to the order

dated 22-12-2008 passed by the Scheduled Tribe Certificate Scrutiny

Committee, Amravati Division, Amravati, invalidating the claim of the

petitioner for 'Raj', Scheduled Tribe, which is an entry at serial No.18

in the Constitutional (Scheduled Tribes) Order, 1950. The petitioner

was selected for the post of Shikshan Sewak in the respondent

No.3-Zilla Parishad, Amravati, in the post reserved for Scheduled Tribe

category. However, he was not granted the order of appointment, and

the respondent No.3 was awaiting the decision of the Scrutiny

Committee on the claim made by the petitioner as belonging to

Scheduled Tribe category. Since the claim is invalidated, the petitioner

has not received the order of appointment.

2. With the assistance of the learned counsels appearing for the

parties, we have gone through the order impugned. The petitioner

produced before the Scrutiny Committee about fifteen documents, out

of which the document at serial No.2 is a copy of extract of birth

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register in respect of the petitioner's father's paternal uncle, wherein

the caste is recorded as 'Raj' on 11-2-1931. This document is

considered by the Committee in para 3 of its order, which is

reproduced below :

"3. Vigilance inquiry was conducted. The vigilance cell furnished it's report on 11.7.2005 with the finding that the entries in Revenue and School record of the applicant show his caste as Musalman and Raj, and he does not prove affinity with Raj, Scheduled Tribe."

The other documents at serial Nos.3, 4, 5 and 10 are rejected by the

Committee holding that the caste of the petitioner and his brother is

recorded as 'Musalman' as well as 'Muslim' in the column of race and

caste (with sub-caste). It further holds that these entries are sufficient

enough to prove that the petitioner does not belong to 'Raj', Scheduled

Tribe. The Committee also holds that the petitioner has failed to

establish affinity with 'Raj', Scheduled Tribe.

3. It is not possible for us to accept the distinction made by the

Committee between caste 'Raj' and 'Raj', Scheduled Tribe, in the

absence of any specific finding that there exists a separate caste 'Raj'

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other than 'Raj', Scheduled Tribe. In the decision of the Division

Bench of this Court delivered on 31-8-2009 in the case of Shakil

Ahmed Khan v. State of Maharashtra and others in Writ Petition

No.5437 of 2008, this Court has held that Musalman or Muslim or

Mohmmedan is a religion and not a case. It has also held that it is not

the case of the Scrutiny Committee that 'Raj', Scheduled Tribe exists

only in Hindu religion and, therefore, merely because the petitioner is

found to be Musalman or Muslim, his claim for 'Raj', Scheduled Tribe

cannot be rejected. In view of this, we are of the view that the

Committee is required to have a fresh look in the matter and,

therefore, the order impugned cannot be sustained and it required to

be quashed and set aside with an order of remand.

4. In the result, the petition is allowed. The order

dated 22-12-2008 passed by the Scheduled Tribe Certificate Scrutiny

Committee, Amravati Division, Amravati, is hereby quashed and set

aside. The matter is remanded back to the said Committee for decision

afresh. The petitioner to appear before the Committee on 18-9-2017.

The Committee to decide the matter within a period of six months

thereafter.

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5. Rule is made absolute in the aforesaid terms. No order as to

costs.

                         JUDGE.                      JUDGE.
   Lanjewar