Kirti Baburao Thakur vs The State Of Maharashtra And ...
2017 Latest Caselaw 3140 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                             WRIT PETITION NO. 6170 OF 2013

Kirti d/o Baburao Thakur,
Age : 50 years, Occupation : Service,
presently working with Maharashtra
State Road Transport Corporation,
Amravati Division, Amravati.
                                                  ...PETITIONER

          -VERSUS-

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

2         The Committee for Scheduled Tribe
          Certificate Scrutiny and Verification of
          Tribe Claim, Nandurbar Region,
          Nandurbar.

3         The Divisional Controller,
          Maharashtra State Road Transport 
          Corporation, Central Office,
          Maharashtra.
          Vahatuk Bhavan, 
          Dr.Anandrao Nayak Street,
          Mumbai-400008.
                                                  ...RESPONDENTS

                                         ...
         Advocate for Petitioner : Shri Barlinge S.R.. And P.v.suryawanshi
              AGP for Respondents 1 and 2 / State : Shri P.S.Patil. 
                  Advocate for Respondent 3 : Shri D.S.Bagul.
                                         ...

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

                                                        *2*                           902.wp.6170.13




                                        DATE :-  14th June, 2017

Oral Judgment :

1               Heard.

2               Rule.

3               The Respondents waive service.

4               By consent, rule is made returnable forthwith.

5               The Petitioner is a citizen of India and claims that she belongs 

to "Thakur" Scheduled Tribe. The certificate was issued certifying her

tribe/ caste as such on 24.05.2004. The copy of the said tribe certificate

issued by the competent authority is annexed at annexure-A to the

petition paper book. Since the Petitioner sought employment with

Respondent No.3/ Maharashtra State Road Transport Corporation and was

appointed, her tribe certificate was forwarded for scrutiny and verification

to Respondent No.2/ Scrutiny Committee.

6 Respondent No.2 having invalidated the claim and refused

the tribe validity certificate that the present petition is filed. The only

contention and which we find to be of substance and raised by Shri

Barlinge, learned Advocate for the Petitioner, is that the Petitioner in

support of her tribe claim furnished several documents. One of the

documents is the tribe validity certificate of her real sister Prajakta Thakur.

The Petitioner specifically relied upon the order passed by the Nagpur

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Bench of this Court in favour of her sister Prajakta Thakur. She also

forwarded the documents pertaining to Vasant Pawar, who is close relative

from paternal side and whose tribe claim was held to be valid by the

Commissioner, Nashik Division, Nashik.

7 The Scrutiny Committee in considering these two documents

has observed as under:-

"I. The applicant in her reply has contended that she has submitted copy of High Court's order passed in favour of her real sister and a copy of an appeal order passed in favour of her cousin. Hence, she is also liable for getting the validity certificate of Thakur, Scheduled Tribe. After perusing the High Court's order passed in case of applicant's sister (W.P. No.993/1982) it is found that the Hon'ble High Court has given her ratio of an appeal order passed by the Commissioner, Nashik Division in favour of her first cousin Shri Vasant Pawar. The Hon'ble High Court in the third para of the order has observed as follows:-

"3. In the case of Milling vs. State (1986 (1) ---

403) and W.P. No.2697/1984 decided on 04.02.1987 this court has taken a view that no inconsistent order on the question can be made in the case of closed relatives. Applying the ratio of these two decisions, the petition is allowed. The impugned orders of the Caste Scrutiny Committee and the Commissioner are quashed and set aside. It is hereby held that the petitioner belongs to Thakur Scheduled Tribe."

The ratio of this order cannot be given to the applicant because the judgment pertains to the period prior to Madhuri Patil's judgment. The High Court has given applicant's sister ratio of an appeal order passed by the Commissioner, Nashik Division in favour of her first cousin. At present the appellate authority of the scrutiny committee is Hon'ble High Court and not the Additional Commissioner."

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8               Shri Barlinge would submit that this is total non application 

of mind for there is no allegation of fraud or misrepresentation. Further, a

mere allegation would not suffice, but there has to be proof of such fraud

or misrepresentation in obtaining the certificates of validity, or else the

certificates of validity issued to close relatives are valid and reliable piece

of evidence. Hence, the Writ Petition be allowed.

9 On the other hand, the learned AGP would submit that the

Scrutiny Committee has rightly discarded the two documents that is

because the Scrutiny Committee has found that the certificate issued by

the Divisional Commissioner at the relevant time cannot bind it once 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 (Maharashtra Act No.XXIII of 2001) has been

brought in. Secondly, there is consistent view taken by this Court that the

certificates of validity issued to close relatives from paternal side by

themselves do not clinch the issue. There has to be an independent proof

of the claim and that is by establishing and proving the socio-cultural

affinity. In the present case, the Scrutiny Committee has found that close

relatives have obtained the certificates of validity, but in their cases a

detailed inquiry was not made and on merits. That is why the Scrutiny

Committee undertook the task of holding a proper and elaborate inquiry.

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It is in these circumstances the learned AGP would submit that the order

of the Scrutiny Committee does not call for any interference in writ

jurisdiction.

10 After having perused the petition and all annexures thereto,

so also, compilation of judgments relied upon, we do not think that the

Scrutiny Committee's order can be sustained. First of all, the Scrutiny

Committee is of the view that we exercise appellate powers. The writ

jurisdiction is not to be equated with appellate jurisdiction. There is basic

fallacy in the understanding of the Scrutiny Committee about the nature

of this Court's jurisdiction. This Court has constitutional power and by

which we supervise the working of the Tribunals and Authorities

performing judicial or quasi-judicial functions and subordinate to this

Court. We issue writ of certiorari and equally we exercise the power

conferred in us by Article 226 of the Constitution of India and that is not

an appellate power. It is only when there is an error apparent on the face

of record or the order of such authorities is perverse that we exercise our

writ jurisdiction and interfere with their orders and actions. Yet, we do not

sit as a further court of appeal. Therefore, the understanding of the

Scrutiny Committee that this Court is an appellate authority of the

Scrutiny Committee is incorrect.

11 Secondly, the Scrutiny Committee has committed a grave

error, rather it's members have misconducted themselves in ignoring and

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brushing aside the binding order of this Court passed in the case of the

Petitioner's real sister. This Court directed that the Petitioner's real sister is

entitled to a certificate of validity as she has proved her claim of belonging

to "Thakur" Scheduled Tribe. The order of this Court cannot be ignored on

a specious plea that when this Court passed the order, the judgment of the

Honourable Supreme Court in the case of Madhuri Patil v/s Additional

Commissioner, 1994 (6) SCC 241, was not in the field or that this Court

was not concerned with the proceedings which were held before the

Nashik Committee. This Court exercises the power of issuing prerogative

writs and equally it passes the orders and so long as it's orders are in force

and not set aside by the process know to law, they bind all the authorities

including the Scrutiny Committee.

12 Thirdly, this Court in the orders passed in the case of close

relatives has held that as and when such certificates are produced

routinely they should not be relied upon as their could be exceptions.

Further, the certificates of validity should not be relied upon when they

are obtained by perpetrating a fraud which is fraud on the public and by

misrepresenting the authorities. In this case, the certificate of validity

issued to the Petitioner's sister, therefore, could not have been discarded

nor the order passed in the case of Vasant Pawar. It is unfortunate that the

Scrutiny Committee approaches the whole proceedings in such manner. It

is further unfortunate that the Scrutiny Committee routinely doubts the

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genuineness and bonafides of the claimants and their claims. One cannot

start with presumption of dishonesty. Dishonesty and fraud are serious

allegations which are easily made, but difficult to prove.

13 In such circumstances to hold that everybody is trying to pass

himself as "Thakur" Scheduled Tribe is a too vague or general observation

enabling the Scrutiny Committee to discard the valid piece of evidence.

Since that has been done in the instant case, we have no alternative, but

to quash and set aside the impugned order. It is, accordingly, quashed and

set aside. The Writ Petition succeeds. The Petitioner is entitled to the

Certificate of Validity. That shall be issued as expeditiously as possible and

in any event within a period of TWO WEEKS from the date of receipt of

the copy of this order.

                 14              Rule is made absolute in the above terms.



kps                    (MANGESH S. PATIL, J.)                           (S.C. DHARMADHIKARI, J.)