Bombay High Court
Lalit Shrikrishnarao Bakde, ... vs The Committee For Scrutiny & ... on 14 December, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 1312 OF 2002.
1. Lalit s/o Shrikrishnarao Bakde,
Aged about 20 years, resident
of Padam- Saurabha Colony,
Shegaon Road, Amravati
Tahsil and District Amravati.
2. Shrikrishnarao s/o Marotrao Bakde,
Aged about 55 years, Occupatgion - Service
resident of Padam- Saurabha Colony,
Shegaon Road, Amravati
Tahsil and District Amravati. ....PETITIONERS.
VERSUS
1. The Committee for Scrutiny and
Verification of Tribes Claims,
Amravati, through its Secretary.
2. The Principal,
Government College of Engineering
Amravati, Tahsil and District
Amravati.
3. The Amravati University,
Amravati, through its Registrar.
4. The State of Maharashtra,
through its Secretary, Tribal
Development Department,
Mantralaya, Mumbai - 32. ....RESPONDENTS
.
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Mr. Ashwin Deshpande, Advocate for Petitioners.
Mr. V.P. Maldhure, Asstt. Govt. Pleader for Respondent Nos.1, 2 and 4.
None appears for respondent No. 3.
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CORAM : B. P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : DECEMBER 14, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Heard Shri Ashwin Deshpande, learned counsel for petitioners
and Shri V.P. Maldhure, learned A.G.P. for respondent nos. 1, 2 and 4.
Presence of respondent nos. 2 and 3 is not necessary, as petitioner has
already completed his education in Engineering with respondent no.3
College, and thereafter has been employed in a private establishment, as per
the statement made by the learned counsel for petitioners.
2. We find that while admitting this Writ Petition on 03.05.2002,
this Court granted interim relief in terms of prayer clause (iv) and (v) of the
petition. Petitioner no.1 was therefore permitted to continue his education
without any disturbance.
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3. By the impugned order dated 25.02.2002, the Scrutiny Committee
has invalidated caste claim of petitioner no.1 as belonging to 'Halbi
Scheduled Tribe'. The order has been passed after coming into force the
Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special
Backward Category (Regulation of Issuance & Verification of) Caste
Certificates Act, (Act No. 23 of 2001).
4. Shri Deshpande, learned counsel for the petitioners has submitted
that old documents of 1922 and 1954 on paternal side unequivocally
disclose caste to be Halbi, and merely by placing reliance on a document of
one Uttam Jairam Sonparote, a maternal grand father, those documents
have been discarded. He contends that documents on maternal side could
not have been relied upon at all.
5. He has taken us through the impugned order to show that in old
documents, where caste is mentioned as Halbi, no interpolation is noticed by
the Scrutiny Committee. According to him, in this situation, following
judgment of Hon'ble Supreme Court reported at 2011 (6) Mh.L.J. 919
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(Anand .vrs. Committee for Scrutiny and Verification of Tribe Claims),
particularly paragraph no.18, the Scrutiny Committee ought to have
discarded the Koshti documents on maternal side. Support is being taken
from Division Bench judgment dated 26.09.2017 in Writ Petition No.
10423/2017 (Neha Deepak Likhar .vrs. The Scheduled Tribe Caste
Certificate Scrutiny Committee, Amravati and another) delivered at
Bombay. He contends that though in case reported at 2013 (1) Mh.L.J.
180 (Priya Pravin Parate .vrs. Scheduled Tribes Caste Certificates
Scrutiny Committee, Nagpur and others), there is a finding that
profession was recorded as Weaving, that finding has not weighed with that
Division Bench and old documents mentioning caste as Halbi have been
looked into even there.
6. Learned A.G.P. appearing for respondents is strongly opposing
the petition. He submits that the Scrutiny Committee has in the impugned
order pointed out availability of Halbi Community which is not a Scheduled
tribe and which has been later on recognized as 'Special Backward Classes'.
This finding has not been assailed in present matter. As such community
exists, documents of community people may mention their caste as Halbi,
but, then that would not be sufficient to recognize them as persons
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belonging to Halbi Scheduled Tribe. When there are two castes or tribes
with same name, according to him, the affinity test becomes material and
here that test has been applied. The traits and customs disclosed by the
petitioner and his family members have been evaluated, and thereafter a
finding has been reached that the petitioner does not belong to Halbi
Scheduled Tribe. Traits and affinity based upon it is not relevant. He
further submits that when petitioner himself has offered documents on
paternal side as also on maternal side, reliance on a adverse document on
material side cannot be challenged by him. That document records caste as
Koshti. Thus, Halbi community in Koshti caste has been recognized as
Special Backward Classes and petitioner at the most may belong to that
community and therefore, qualify as Special Backward Class and he cannot
claim status as Scheduled Tribe. He has also taken us through relevant
observations in judgment mentioned supra.
7. Judgment of Hon'ble Supreme Court in case of Anand .vrs.
Committee for Scrutiny and Verification of Tribe Claims (supra), particularly
from opening line in paragraph no.18 shows that though thorough
examination of old documents is essential, affinity test also needs to be
applied. A controversy may crop up when old unimpeachable document
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mentions a particular caste or tribe and affinity test as applied, does not
support that claim. In that situation, if the facts are not as are in present
matter, old documents may be found to be decisive. In other words, if there
is no caste or tribe, with same or similar name and hence, old documents are
acceptable on that count, use of affinity test may not be decisive. However,
where there are two castes or tribes of same name and one is a upper caste
not qualifying as Scheduled Tribe, affinity test is the only answer.
8. In case of Priya Pravin Parate .vrs. Scheduled Tribes Caste
Certificates Scrutiny Committee, Nagpur and others (supra), the Division
Bench of this Court has in paragraph no.10 looked into some what similar
situation. There the old documents mention caste as Halbi, and there were
some documents which reveal caste as Koshti. However, those documents
which reveal caste as Koshti, also in addition mention profession as
Weaving. Hence, taking over all view of the matter and facts presented to it,
the Division Bench has found it correct to set aside the order of the Scrutiny
Committee and upheld caste claim as belonging to Halbi Scheduled Tribe.
9. Division Bench at Bombay in Writ Petition No. 10423/2017 (Neha
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Deepak Likhar .vrs. The Scheduled Tribe Caste Certificate Scrutiny
Committee, Amravati and another) (supra) has looked into an identical
challenge. However, that Division Bench was not called upon to answer the
relevance or otherwise of the affinity test, particularly when an upper caste
by name Halbi, recognized in State of Maharashtra as Special Backward
Class, exists. The application of mind by the Division Bench therefore does
not throw any light on contentions raised by the learned A.G.P. before us.
Said Division Bench therefore, only looked into the old documents and
found them decisive. Perhaps its attention was not invited to existence of an
upper caste with very same name.
10. In present matter, the Scrutiny Committee has sent all the
documents for vigilance enquiry. Documents submitted by the petitioner
mentions caste as Halbi, are not found to be interpolated or doubtful. The
Scrutiny Committee has looked into those documents also.
11. Documents for verification were made available by the petitioners
only and records show that the vigilance authorities came across a
document of one Uttam Sonparote, which mentions his caste as Koshti.
Uttam was admitted in a school at Achalpur on 03.04.1939 and his date of
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birth is 29.03.1933. The extract of admission register carries blank against
column in which profession is to be recorded. Contention that said
document could not have been looked into because its is on maternal side,
cannot be accepted, because candidate has forwarded the documents of his
mother also in support of his caste claim. Those documents are mentioned
at Sr.No. 16, 17, 18, 19 and 20 by the Scrutiny Committee.
12. When the Vigilance Cell Authorities came across such a document,
it was put to petitioner, and petitioner has pointed out that being on
maternal side, it was not a clinching circumstance. However, the Scrutiny
Committee has applied the affinity test also and consideration thereof is
contained at page no.5 of the order of the Scrutiny Committee. The result
thereof is a finding that petitioner does not belong to Halbi Scheduled Tribe.
13. As rightly pointed out by the learned A.G.P. here petitioner has not
questioned order of the Scrutiny Committee by pointing out that there is no
upper caste Halbi or then Halbi Koshti recognizes Special Backward Classes
in State of Maharashtra. In view of this finding of the Scrutiny Committee it
is apparent that mere reliance on old document to urge that the petitioner
belongs to Halbi Scheduled Tribe is erroneous and misconceived.
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14. However, during arguments, learned counsel for petitioners has
invited our attention to the fact that presence of other community by name
Halbi Koshti community or recognition as Special Backward Class was
never expressly put to the petitioners, and as such the petitioners could not
explain the same to the Scrutiny Committee. According to him, before
using such material it ought to have been put to the petitioners. Learned
A.G.P. has submitted that after order was passed by the Scrutiny
Committee, a ground in this respect could have been raised in the Writ
Petition. Petitioners have not raised any such ground expressly. As already
noted supra, insistence in the matter is only upon old documents which
mention caste as Halbi.
15. In this situation, in present facts when petitioner has already
completed education and is in private employment, we declare that the
impugned order of invalidation shall not be used to the prejudice or affect
the education of petitioner or degree of engineering obtained by him at any
point in future. We also direct that it shall not be used as res-judicata while
examining caste claim of any of the blood relatives of petitioner.
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16. If such claims are pending or are made by any blood relatives, the
same shall be examined independently by the Committee on its own merit.
With these directions we dispose of the present Writ Petition. No costs.
JUDGE JUDGE
Rgd.
