Ku.Pushpa Namdeorao Pakhale ... vs The Staate Of Mah. Mumbaai & Others
2017 Latest Caselaw 4004 Bom

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

                              WRIT PETITION NO. 1485/2002

*        Ku. Pushpa Namdeorao Pakhale 
         Aged about 29 years, 
         occu: service R/o  Anwarpura , 
         Post & Taluka Achalpur, Dist. Amaravati.                                       ..PETITIONER.


                                                  VERSUS

1)       The  State of Maharashtra 
         Through the Secretary 
         Tribal Development Department 
         Mantralaya, Mumbai-32

2)       The Deputy  Director and Secretary
         Scheduled Tribes Caste Verification 
         Scrutiny Committee, 
         Adiwasi Vikas Bhavan 
         Giripeth, Amravati Road
         Nagpur.

3)       The Chairman 
         Maharashtra State Board of  Secondary 
         and Higher Secondary Education, Pune.
         (Amended as per  Court's order 
         dated 25.06.2003)                                                    ..RESPONDENTS
                                                                                           . 

...................................................................................................................
         Mr. G.R. Kothari, Advocate h/for Mr. V.R.Choudhary, Advocate 
         for the petitioner 
         Mr.V.P.Maldhure, Assistant Government Pleader for respondent 
         Nos.1& 2
         Mr. Rohit Vaidya, Adv.h/for Mr. Anand Parchure, Advocate for 
         respondent no.3. 
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                                        CORAM :  R.K. DESHPANDE &
                                                         MRS.SWAPNA JOSHI, JJ.

                                        DATED :    5       th
                                                              July, 2017
                                                                        

ORAL JUDGMENT:  (Per R.K.DESHPANDE, J.)

The petitioner joined the service under the Maharashtra

State Board of Secondary and Higher Secondary Education in Amravati

Division, as a candidate belonging to 'Halbi' Scheduled Tribe category,

on 18.1.2000. The caste certificate produced by the petitioner, issued on

28.12.1999 by the Sub-Divisional Officer, Achalpur was sent for scrutiny

and verification to the Scheduled Tribes Caste Verification Scrutiny

Committee/respondent no.2. The said Committee has invalidated the

caste claim of the petitioner by an order dated 18.12.2001, which is the

subject-matter of challenge in this petition. The petitioner was also

terminated from service by an order dated 8.3.2002 on the ground that

the claim of the petitioner for 'Halbi' Scheduled Tribe is held to be

invalid and she is consequentially out of employment.

2. It is not in dispute that the petitioner produced before the

said Committee an abstract of school admission register in respect of her

father Namdeo Bajirao Pakhale in which the entry was made in 1950

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showing that he belongs to 'Halbi' Scheduled Tribe category and the

profession is of weaver. The school leaving certificate in the name of

the father of Namdeo Pakhale was also produced in which the entry of

caste was recorded as 'Halbi' Scheduled Tribe on 1.4.1950. An abstract

of birth register in respect of male child born to Bajirao Sakharam

Halbi, the grandfather of the candidate, was reported on 26.6.1943. The

other documents produced on record pertain to post-1950 period

showing the entries of the blood relatives of the peititioner as 'Halbi'

Scheduled Tribe.

3. The Committee relied upon certain documents of 1933,

1939, 1930 in respect of maternal relatives of the petitioner showing the

caste as 'Koshti' or 'Halba-Koshthi'. On internal page 5 of the order, the

Committee records the finding as under :

" Shri Namdeo Bajirao Pakhale specifically stated that their ancestors profession was weaving on Magat. He also stated that his marriage is within a caste. He could not state about divisions found in Halba, Scheduled Tribe.

The above characteristics as stated by Shri Namdeo Bajirao Pakhale during enquiry do not resemble with that of

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Halba, Scheduled Tribe.

As per the information the ancestors profession of the candidate is weaving. The tribal Halbas do not follow the occupation of weaving. Weaving is a taboo among tribal Halba. Whereas weaving is the ancestral occupation among Halba Koshti."

4. The Committee rejects the document at Sr.Nos.1 and 3

pertaining to the father of the petitioner showing his caste as 'Halbi'

Scheduled Tribe as on 1.4.1950 and in respect of grandfather Bajirao

Halbi made on 26.6.1953 showing the caste as 'Halbi' Scheduled Tribe.

The reason assigned is that the profession shown is of weaver which is a

taboo amongst tribal 'Halba'. In respect of document no.3 which is of

dated 26.6.1943 the finding is recorded as under :

" The documents quoted at sr.no.3 is birth record in respect of grandfather of the candidate showing his caste as Halbi. Only from this entry it is not clear that whether this entry belongs to Halbi, Scheduled Tribe. It is observed by the Scrutiny Committee that in some part of Vidarbh and old MP. region, in old records the sub-caste Halbi of the caste Koshti is recorded as Halbi, which is popularly known as Halba-Koshti. However these particular entries cannot be treated as Halba-

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Halbi Scheduled Tribe. It is evident from the fact that the documents obtained by Vigilance Cell in respect of grandfather and other relatives of the candidate show their caste as Koshti. Moreover characteristics, customs of these people do not resemble with that of Halbi Scheduled Tribe and they do not have any ethnic linkage with them."

5. In the decision of the Division Bench of this Court in Priya

Pravin Parate vs. Scheduled Tribes Caste Certificates Srutiny

Committee, Nagpur, reported in 2013 (1) Mh.L.J.180, this Court has

held that that while dealing with the documentary evidence a greater

reliance has to be placed on pre-independence documents, because they

furnish higher degree of probative value to the declaration of status of

a tribe. The Court records the finding that at least four documents

placed on record pertaining to pre-Constitutional era, clearly go to

show that the petitioner's great grandfather and his brothers belong to

'Halbi' Tribe. In paragraph 10, the Court holds as under:-

"10. Insofar as the reliance on some of the entries pertaining to petitioners relatives from paternal side showing caste to be 'Koshti' on which Mr. Deshpande, learned Counsel relies, are concerned, perusal of the said document would reveal that

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though the caste of the said person is written as Koshti, the profession is also shown as weaving. As can be seen from the Gazetteer of Amravati District, that Halbi's in erstwhile Ellichpur and Ajangaon Surji in Daryapur Taluq in Amravati District were also engaged in the profession of waving. It is common knowledge that persons engaged in the profession of weaving were called as "Koshti". A possibility cannot be ruled out that due to this, said entries might have recorded. It is also relevant to refer to some portion from the authority of R.V. Russell on Tribes and Castes of the Central Provinces of India published in 1916, wherein while dealing with the Halba Tribe, it has been stated that "some of these soldiers may have migrated west and taken service under the Gond Kings of Chanda, and their descendants may now be represented by the Bhandara Zamindars, who, however, if this theory be correct, have entirely forgotten their origin. Others took up weaving and have become amalgamated with the koshti caste in Bhadara and Berar."

From the aforesaid authority, it would reveal that persons belonging to Halba Tribe had migrated to west and taken service under the Gond Kings of Chanda. It can also be seen that some of them had taken to weaving and had amalgamated with the Koshti caste in Bhandara and Berar. 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-

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Constitution era which clearly certify the petitioners great- grandfather and his brothers to be Halbi, could not have been lightly brushed aside by the Scrutiny Committee. As discussed hereinabove, the Hon'ble Apex Court in case of Anand ( supra), found that the pre-independence documents have a greater probative value and they should be given due consideration while considering the claim of a tribal."

6. Applying the aforesaid law laid down by this Court, we are

of the view that merely because some of the entries show that the

occupation of weaving is followed that cannot be a ground to reject the

claim made on the basis of the documents having probative value which

are in the present case at Sr. Nos. 1,3 and 4, considered by the Scrutiny

Committee. In view of the decision of the Apex Court in Anand vs.

Committee for Scrutiny & Verification of Tribe Claims, reported in

2011(6) Mh.L.J.919, the affinity test cannot be applied to reject the

documents having high probative value. Rule 2 (f) of the Maharashtra

Scheduled Tribes (Regulation of Issuance and Verification of ) Certificate

Rules, 2002 defines the term 'relative' means blood relatives from the

paternal side of the applicant. The Committee therefore committed an

error in relying upon the documents relating to maternal side of the

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petitioner. It is urged that the definition of relative is subsequent to the

decision given by the Committee in the present case. However, that does

not make any difference. Caste of a person cannot be decided on the

basis of the caste of his maternal relatives, it has to be decided on the

basis of the entries in relation to the relatives on the paternal side. We

do not find any material placed on record to hold that in some part of

Vidarbha and old M.P. region, in old records the sub-caste Halbi of the

caste Koshti is recorded as Halbi, which is known as Halba-Koshti. No

evidence can be let in to exclude any community from the entry 'Halbi'

on the basis of such artificial distinction.

7. In view of this, the following order is passed :-

(i) The Writ Petition is allowed. The order dated 18.12.2001

passed by the respondent No.2-Committee is hereby quashed set

aside. It is hereby declared that the petitioner has established her

claim for 'Halbi' Scheduled Tribe, which is entry at Sr.No.19 in the

Constitution (Scheduled Tribe ) Order, 1950.

(ii) The respondent no.2-Committee is directed to issue caste

validity certificate in the name of the petitioner showing her caste

as 'Halbi' Scheduled Tribe.

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(iii) The order of termination dated 8.3.2002 passed by the

respondent no.3 is hereby quashed aside.

(iv) The petitioner is directed to be reinstated in service on the

post of Junior Clerk, which she was holding prior to the date of

her termination from service.

(v) We make it clear that the order of termination is set aside as

it is based on presumption that the caste claim of the petitioner

has been invalidated and we have not touched any other ground.

(vi) About 15 years have lapsed after the date of termination of

the petitioner from service. We do not know the factual position as

to whether the petitioner is gainfully employed somewhere else or

not. It is therefore not possible for us to grant back wages.

(vii) However upon reinstatement of the petitioner she will be

entitled to all the monetary benefits including seniority of the post,

excluding the back wages.

(viii) Rule is made absolute accordingly. No costs.

                        JUDGE                                JUDGE

sahare