Poonam Osprakash Rathod vs Scheduled Tribe Certificate ...
2017 Latest Caselaw 4931 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                       WRIT PETITION NO. 4575 OF 2012


      Poonam Omprakash Rathod,
      Age: 32 years, Occ. Service,
      R/o Thakur Provision, B-5,
      Giriraj Housing Society,
      Pandharpur Post- Vadgaon,
      Aurangabd, Tq. & Dist. Aurangabad.                     ...      Petitioner

               Versus

1.    The Scheduled Tribe Certificate
      Scrutiny Committee, Aurangabad
      Division, Aurangabad
      Through its Member Secretary.

2.    Deputy Director of Education,
      Aurangabad Region, Aurangabad
      Railway Station Road, Aurangabad.

3.    Saraswati Bhuwan Education Society,
      College of Science, Aurangpura,
      Aurangabad
      Through its Principal.                                 ...      Respondents


                                     ----
Mr. Anandsingh Bayas, advocate for the petitioner.
Mr. A.R.Kale, AGP for respondent-state.
Mr. V.P. Golewar h/f. Mr. A.R. Joshi, advocate for respondent no.3
                                     ----

                                    CORAM :     S.C. DHARMADHIKARI &
                                                MANGESH S. PATIL, JJ.

                                    DATE      : 24.07.2017





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ORAL JUDGMENT :-

.               Rule. Rule made returnable forthwith and heard finally with

consent of learned advocates for the parties.

2. This petition under Article 226 of the Constitution of India,

challenges the order passed by the Scrutiny Committee set up under the

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes,

(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special

Backward Category (Regulation of Issuance and Verification of) Caste

Certificate Act, 2000 (for short the "Maharashtra Act No. 23 of 2001") to

verify the caste certificate.

3. The order passed on 14.05.2012, invalidates the tribe claim

of the petitioner as belonging to Thakur Scheduled Tribe.

4. It is common ground that the petitioner applied on the

strength of a caste certificate issued on 29.01.1993 (Annexure 'A') for

appointment as as Assistant Teacher in the respondent nos. 3 and 4

institution.

5. The petitioner was initially appointed as a Shikshan Sevak

which is the nomenclature carried by the said post prior an amendment

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to the Maharashtra Employees of Private Schools (Conditions of Service)

Act, 1977. The appointment order was issued on 24.11.2008, for a

period of three years.

6. Since the appointment was against a reserved seat, the caste

certificate was forwarded to the competent Scrutiny Committee.

7. The first respondent committee has taken on record as many

as 34 documents, which the petitioner produced, so as to discharge the

burden cast by Section 8 of the Act 23 of 2001.

8. The petitioner heavily relied upon a pre-constitutional

document as also a certificate of validity issued to her paternal uncle by

the same Scrutiny Committee. The Scrutiny Committee in invalidating

the claim has held, firstly that the document which was produced in

which the entry is Thakur, that document does not say whether Thakur

means Thakur Scheduled Tribe or Thakur Simplicitor as a surname. As

far as, the certificate of validity is concerned the finding is that, though,

such certificate of validity may be tendered as proof of the claim and to

discharge the burden under Section 8, still the candidate must establish

and prove further that the certificate of validity issued to close relative

from the paternal side was after a adjudication on merits. The

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committee feels and we are sorry to say none of these committees are

exceptions that mere production of certificate of validity issued to close

relative on paternal side is not enough. In some cases, the files are

called and the original files reveal that the certificate of validity is issued

under the signature of the Scrutiny Committee Members. However, there

is no detailed order according to the committee available in the file.

Such a opinion is expressed, sometimes after a decade or more of the

certificate of validity is issued. Though no finding is rendered on the

competence of the Scrutiny Committee to issue the certificate of validity

yet, or not able to trace a reasoned order, the conclusion invariably

reached is there is no adjudication on merits. For all this, the certificate

holder or the claimant relative relying on it is blamed. This suggests that

a certificate of validity can be easily procured and no effort is taken in

issuing it by the committee. If this is how the committees, proceed,

according to the petitioner's counsel, then, it is not the petitioner who is

at fault.

9. The argument of Mr. Bayas before us is that the petitioner

has no control over the proceedings. In such cases, if the claims are

decided on perusal of the entire record and if there is no doubt

entertained by the Scrutiny Committee nor the contents of the

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documents are ever questioned, then, straight away a certificate of

validity is issued. The documents are carefully perused and their

contents scrutinized. That does not mean that there is no adjudication on

merits. If the applicant is obliged to discharge the burden under Section

8, then, how that burden is discharged in an individual case and how the

committee has satisfied itself is not within the domain or control of the

party or applicant. It is entirely for the committee how to comply with

the procedural rules and if any deviation from the procedural rule is

pointed out that does not mean that the order is necessarily vitiated in

law. Similarly, when the committee had before it authentic documents in

the form of the school records and of 1941 and the committee has

applied its mind, then, whether in 1941 the tribe was known as

Scheduled Tribe, for that concept came only when the Constitution of

India was brought into effect, is not required in law. It is only in the

Constitution of India and by Article 341, 342 and Article 366 (24 and 25)

that these terms or words have been defined. Therefore, the words

Scheduled Caste and Scheduled Tribe were employed only after the

constitution came into force. This basic fallacy in the committee's order

is enough to set aside and quash the impugned order is the final

submission.

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10. The learned A.G.P. appearing for the State supported the

order and submitted that the committee must scrutinize each case on its

merits for there are number of false claims detected particularly in

relation to the Scheduled Tribes. If the committee is cautious and careful

that does not mean that its order is vitiated by a error of law apparent on

the face of record or perversity. In the circumstances, this Court should

should proceed to dismiss the petition.

11. We have perused the writ petition and all the annexures

thereto including the impugned order. The committee's order is at page

77 of the paper book Annexure 'O', copy of that order reveals that the

petitioner was appointed in the S.B.E.S. Science College at Aurangapura,

Aurangabad by an appointment order and which appointment order is

also a condition that the appointment is subject to production of a

caste/tribe validity certificate. That is how on 02.12.2008, a proposal

was forwarded by the Management for the verification of the caste

certificate.

12. In para 2 of the impugned order, the committee makes

reference and serially to the documents produced. True it is that, in the

original caste certificate of the petitioner herself, the tribe is mentioned

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as Thakur Scheduled Tribe but this is a caste certificate issued on

29.01.1993. Then, there is a primary school admission register extract

in respect of the applicant issued by the Headmaster of a primary School

in Ahmednagar but there the petitioner's caste is mentioned as 'Hindu

Rajput'. Then, there is an attested copy of a certificate in respect of

petitioner issued by the very Headmaster of the Primary School who says

that inadvertently and by mistake he mentioned the caste as Hindu

Rajput instead of Hindu Thakur. Now, he has effected the correction

because of birth certificate of the candidate issued by the Ahmednagar

Municipal Corporation and the affidavit of the Omprakash Gulabchand

Rathod shows that this a mistake. Then, there is another document

styled as leaving certificate in respect of the petitioner's father issued on

14.06.1961. This is a document according to the committee which

mentions his caste as Hindu Rathod. Then, there is an attested copy of

the Primary School admission register extract, in respect of the

petitioner's father which again carries the same nomenclature in the

caste column, namely, Hindu Rathod. Then, the applicant's grand father,

Gulabchand Kushalchand Rathod, was issued a caste certificate on

07.05.1967, there the tribe is mentioned as Thakur Scheduled Tribe,

then, an attested copy of the school admission register extract in respect

of Arunkumar Gulabchand Rathod (candidate's real uncle) issued by the

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Headmaster of a school at Ahmednagar mentions the caste as Hindu

Thakur, the date of admission is 09.06.1969. Then, a caste certificate is

issued to Arunkumar Gulabchand Rathod by the Tahsildar and Executive

Magistrate, Gangapur, District Aurangabad on 02.04.1984, wherein, the

tribe is mentioned as Thakur Scheduled Tribe. It is, then, stated that

there is a certificate issued in respect of Arunkumar Gulabchand Rathod

by the Headmaster of the Sitaram Sarda Vidyalaya, Ahmednagar

mentioning that the caste is recorded by mistake as Hindu Rathod

instead of Hindu Thakur in school record.

13. Then, what we have are similar corrections but there is

another caste certificate issued to Akshay Arunkumar Rathod who is the

son of Arunkumar. Arunkumar is the brother of petitioner's father and,

therefore, Akshay is her first/real cousin on the paternal side. In relation

to Akshay the entry in the caste certificate is Thakur Scheduled Tribe

which is dated 03.10.1994. Then, Akanksha Arun Rathod, the sister of

Akshay and in her case the entry in the caste column of the school

admission register is Hindu Thakur. Then, another certificate is issued

styled as caste certificate to Akanksha but in which the Tribe is

mentioned as Hindu Thakur Scheduled Tribe, which is dated 26.08.2008.

There are similar such certificates issued to the distant cousins but in

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them the entry is "Hindu Thakur". In respect of Saurabh Shyamkumar

Rathod, the petitioner's second cousin/cousin cousin, the certificate of

validity was issued by the Scheduled Tribe Certificate Scrutiny

Committee, Nashik Division, Nashik on 28.09.2005 with the tribe

mentioned as Thakur Scheduled Tribe. Then, the genealogy is produced,

even in respect of another uncle of the petitioner Shivnarayan

Gulabchand Rathod, the caste certificate issued by the Competent

Authority on 02.05.1978 certifies Shivnarayan as Thakur Scheduled

Tribe. We have another document and produced in respect of one Rakhi

Omprakash Rathod the relation is not mentioned, wherein, also the tribe

is mentioned as Thakur Scheduled Tribe, a certificate of validity was also

issued to Rakhi by the Scrutiny Committee at Nashik. Even, if we omit

from consideration these documents where the relation is not mentioned

what remains on record is a photocopy of the school admission register

extract in respect of Ramnarayan Gulabchand Rathod, petitioner's real

uncle, where the caste column carries the entry as Thakur and the date

of admission is 30.08.1941. Then, we have a document which is styled as

certificate of validity issued to Arunkumar Gulabchand Rathod by the

very Aurangabad committee on 15.02.2011. Then, there is an original

affidavit of Akshay Arunkumar Rathod before the notary, wherein, the

paternal genealogy is mentioned and that is dated 16.02.2011. Then,

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there is a attested copy of validity certificate in respect of Akshay, which

is dated 15.02.2011.

14. In relation to all these documents, there are on record

statements of the certificate holders. The committee still feels obliged to

hold an inquiry through the vigilance cell and calls for a report. So far so

good. The committee frames some points for consideration and in

relation to the documents which we have made a brief reference and

appearing at serial no. VIII, XIII, XV, XVI, XXII, XXVIII, XXIX and XXX

are the school records of the candidates and paternal relatives, in that

the caste is recorded as Hindu Thakur and Thakur. The committee holds

that the entries do not mention specifically whether Hindu Thakur means

Hindu Thakur Scheduled Tribe or Thakur Simplictor means Thakur

Scheduled Tribe. Pertinently, some of the documents are pre-

constitutional. In the sense, the school records maintained before the

Constitution of India came into force and in that, namely, way back in the

year 1941, prior to 1950 when the Constitution of India was brought into

effect, the entries are Thakur. The concept of the term Scheduled Tribe

was not in vogue at the relevant time, namely, in 1941. The committee

has not referred to any legal provision by which it can arrive at a

conclusion that in 1941 the authorities were obliged to record the caste

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and tribes as Scheduled Caste and Scheduled Tribe. Hence, we would

never find a reference in these documents and against the tribe/caste

name as Scheduled Caste and Scheduled Tribe. This is a patent non-

application of mind on the part of the committee.

15. Then, in discarding the certificate of validity issued to the

petitioner's uncle from the paternal side, real uncle Arunkumar, a

mechanical and stereotype reason is assigned, namely, that the

certificate of validity has been issued without any adjudication on merits.

We do not see how this reason can be assigned, as a matter of course,

and in every matter. We do not think that the committees' can lightly

brush aside such certificates of validity. These certificates of validity have

been issued by Competent Scrutiny Committees, the certificate of validity

was issued to close relatives from the paternal side and by the genealogy

and the family tree, so also the affidavits, the relationship at least with

Arunkumar was established and proved. The Aurangabad Committee

may fault a Nashik Scrutiny Committee in not adjudicating the claim of

the validity certificate holder on merits. However, when it itself issues a

certificate of validity to Arunkumar then, discarding it, on the spacious

ground that the claim of Arunkumar was not adjudicated on merits and,

therefore, the certificate of validity has no evidentiary value, is without

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any legal basis. Pertinently, Arunkumar was present before the

Committee. Even one Laxminarayan Chotelal Rathod was present before

the committee. They gave certain information, according to the

committee, with regard to the characteristics, trails, rituals, ceremonies

and practices prevalent in the community. The Scrutiny Committee

opines that they do not tally or are not consistent with the rituals, trails

and characteristics of Thakur Scheduled Tribe. It is expected that the

certificates may have been issued recently but the holders of the same

ought to be familiar and must establish complete affinity with the tribe.

Even if one custom tradition, practice, ritual is not recited or is not

referred in the statements orally made, then, the certificates lose their

evidentiary value.

16. However, when other certificates of validity was produced, it

is stated that the document produced by the candidate in para 2 at serial

nos. 18, 24, 32 and 34 along with a necessary affidavit are the validity

certificates in respect of Saurabh Shyamkumar Rathod, Rakhi Omprakash

Rathod. We can omit safely from consideration Saurabh and Rakhi's

certificates for there the relationship was not established is the finding.

However, when Arunkumar and Akshay's certificate of validity were

brought on record as authentic proof, the relationship was established.

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The committee feels that they may be paternal blood relatives but in the

case of the present candidate, namely, the petitioner during the course of

the scrutiny she produced some other documents in respect of her

paternal blood relatives in which the caste is clearly recorded as Hindu

Rajput and Hindu Rathod. Therefore, Arunkumar and Akshay's

certificates have no evidentiary value is the conclusion. Pertinently, the

committee does not apply its mind to the position emerging from the

record. We have carefully perused the order of the Scrutiny Committee.

The committee has taken on record serially all the documents and by

numbering them. Where the committee was confused is when it holds

that the caste recorded in cases of some blood relatives is Hindu Rajput

and Hindu Rathod. Those entries are not in the caste certificate. The

entries to this effect are in the school admission registers. However,

when these very persons applied for caste certificate and in terms of the

Maharashtra Act No. 23 of 2001, then, the committee should have been

aware that, the three provisions namely Sections 4, 5 and 6 of the Act 23

of 2001 obliged the Competent Authority to come to a definite

satisfaction. As far as, the caste certificate, the Competent Authority may

on an application made to it under Section 3, after satisfying itself about

the genuineness of the claim and following the procedure as prescribed,

issue a certificate within such time limit and in such form as may be

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prescribed or reject the application for reasons to be recorded in writing

[see Section 4(1)]. Now if a caste certificate is issued recording that the

petitioner's relatives and close ones from paternal side are belonging to

Thakur Scheduled Tribe, the constitutional notification entry is also

reflected, then, we do not see how these documents can be discarded

and reliance can be placed on the school admission registers or the

purported corrections therein. This means that caste certificate was

issued by the Competent Authority to these persons without application

of mind. Surely, the committee was not sitting in appeal over a decision

to issue the caste certificate to these close relatives on the paternal side.

It is by this process, the validity certificates have been discarded. The

validity certificates have been issued by the Competent Scrutiny

Committees one of which includes the Aurangabad Committee. If they

are so easily discarded and omitted from consideration, particularly

without arriving at the satisfaction whether they are tainted or vitiated by

fraud or misrepresentation, then, we are sorry to say that the Scrutiny

Committee and its Members deliberately brush aside binding judgments

of this Court. This Court has been consistently laying down the principle

that it is not permissible to discard a certificate of validity, produced as

proof by the applicants/claimants, unless the committee comes to a

conclusion that they are not pertaining to close relatives from the

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paternal side or that they have been obtained by fraud or

misrepresentation. The specific words may not be employed and used

but surely there must be an indication that the committees' have applied

their minds on these lines and in the backdrop of settled legal tests. If

there is no indication of this nature in the entire order, then, we are sorry

to say that, we are not obliged to sustain the Scrutiny Committees

findings and conclusions. If the Scrutiny Committees' have completely

misdirected themselves and have coined a third principle, namely, though

there is a certificate of validity produced but that is issued without any

adjudication on merits and which is a ground routinely assigned to

discard valid piece of evidence, then, we must step in our writ

jurisdiction. Pertinently, the committee does not feel obliged to discard

these certificates of validity for they have been issued much after the

judgment of the Supreme Court in the case of in the case of Madhuri

Patil V/s. Additional Commissioner and Ors. reported in AIR 1995

SC 894. The judgment in the case of Dharmendra Devrao Patil was

referred by the committee in the impugned order. It is dealing with a

case where the certificate of validity was issued not only prior to

Madhuri Patil (Supra), but even prior to the Maharashtra Act No. 23 of

2001. However, if certificates of validity have been issued not only after

the Madhuri Patil judgment but after the Maharashtra Act No. 23 of

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2001 by competent Scrutiny Committees on due application of mind and

consideration of relevant documents, then, the Scrutiny Committee

cannot ignore them by a wholesale or a general finding that there has

been no adjudication on merits. It should at least specify what does it

mean by adjudication on merits. In the present case, we do not find any

indication of this nature in the impugned order.

17. For all the above reasons and the discussion in detail, we

proceed to quash and set aside the impugned order. The writ petition

succeeds. Rule is made absolute accordingly. Once the impugned order

is quashed and set aside, the Committee shall now proceed to issue the

certificate of validity as expeditiously as possible and within a period of

four weeks form today.

18. The other finding of the committee specifically on the point of

area restriction and the impact of its removal is ex facie erroneous and

legally unsustainable. A common order was passed by the Hon'ble

Supreme Court of India in Civil Appeal No. 2336 of 2011, along with

other Special Leave Petitions and Civil Appeals decided on 08.03.2017 in

the case of Jaywant Dilip Pawar V/s. State of Maharashtra and

Ors. That common order reads as under:

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          "       The short point raised by learned counsel for the

appellants in these appeals is that after 'The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976' (Act No.108 of 1976) was published in the Gazette on 20.09.1976, the area restriction of Scheduled Tribes in the State of Maharashtra for the Thakur community has been deleted and all members of Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur and Ma Thakar community are treated to be Scheduled Tribes. The Scrutiny Committee has negated the claim of the appellants on the ground that the relatives of the appellants were not residents of the areas mentioned in the Presidential Order, 1956 and further they were not able to give any details of customs and traditions being observed by the said community.

In our considered opinion, that is wholly irrelevant. The appellants have only to establish that they belong to the community mentioned at Serial No.44 of Part IX of Second Schedule of Act No.108 of 1976.

The High Court has dismissed the Writ Petitions preferred by the appellants only on the ground that the Scrutiny Committee had given detailed reasons and the Court will not go into the merits of the matter afresh.

In our considered opinion, the approach of the High Court was totally erroneous. It ought to have considered the Act No.108 of 1976 and given its own reasoning.

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We, therefore, set aside the impugned order passed by the High Court and remand the matter back to the High Court for expeditiously deciding the matter afresh in accordance with law.

The Civil Appeals as well as the Special Leave Petitions are disposed of in the above terms. "

19. In view of the above common order, even the other ground

assigned by the Committee does not survive. The certificate of validity

could not have been denied on this ground.

20. Needles to clarify that in the light of the over-whelming

documentary evidence, the claim of the petitioner stands proved and she

need not undergo any affinity test.

21. The above additional reasons as well enable us to allow this

writ petition and grant the relief as above. Civil application pending, if

any, also stands disposed of.

      [MANGESH S. PATIL, J.]                          [S.C. DHARMADHIKARI, J.]




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