Tushar Pandurang Baviskar vs The State Of Maharashtra And ...
2017 Latest Caselaw 3231 Bom

                                     (1)                          902 wp 801.14

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                        WRIT PETITION NO. 801 OF 2014


      Tushar s/o Pandurang Baviskar
      Age: 23 years, Occ. Education,
      R/o Plot No. 17, Gut No. 60,
      Shiva Colony, Jalgaon,
      District Jalgaon.                               ...      Petitioner

               Versus

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

2.    The Scheduled Tribe Certificate
      Scrutiny Committee, Nandurbar
      Region, Nandurbar.                              ...      Respondents


                                    with
                       WRIT PETITION NO. 8058 OF 2013

      Rohan s/o Ganesh Sonawane,
      Age: 26 years, Occ. Student,
      R/o Tanaji Malusare road,
      Asoda Road, Jalgaon,
      Tq. & District Jalgaon.                         ...      Petitioner

               Versus

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




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                                          (2)                              902 wp 801.14

2.    The Scheduled Tribes Certificate
      Scrutiny and Verification Committee,
      Nandurbar Region, Nandurbar.                            ...      Respondents

                                    ----
Mr. S.R. Barlinge, Advocate for the petitioner/s.
Mr. P.S.Patil, AGP for respondent-state.
                                    ----

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

                                    DATE       : 15.06.2017.

ORAL JUDGMENT :-

.               Rule. Rule made returnable forthwith and heard finally with

consent of learned advocates for the parties.

2. The petitioners before us are aggrieved and dissatisfied with

the orders passed by the Scrutiny Committee.

3. The Scrutiny Committee namely the Scheduled Tribe

Certificate Scrutiny Committee, Nandurbar Region, Nandurbar by the

impugned orders dated 08.12.2011 and 21.06.2013 refused to grant

caste / tribe validity certificates to the petitioners.

4. It is common ground that the petitioners' are residing at

Jalgaon. They claim that they belong to 'Tokre Koli Scheduled Tribe'. The

Caste / Tribe Certificates were issued by the Competent Authority in

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terms of 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") on 06.09.2001 and 10.08.2011, respectively.

5. On the strength of this caste certificate, the petitioner in writ

petition no. 801/2014, obtained admission in an educational institution

namely Kendriya Vidyalaya, Jalgaon. The caste certificate was forwarded

for scrutiny and verification by that school to the second-respondent

committee. The petitioner complains that the committee took six years to

scrutinize and verify the claim and eventually by the impugned order

rejected it. The caste certificate of petitioner in writ petition no.

8058/2013 was referred for scrutiny and verification of the claim for

election purpose by the Tahsildar, Jalgaon to the second-respondent

committee and the same was also rejected.

6. In assailing the orders, Mr. Barlinge, advocate appearing for

the petitioners would submit that, there was no need for detailed scrutiny

and verification. There were documents which would show that within the

family, the claims have been accepted and certificates of validity were

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issued to the petitioners close relatives from the paternal side. The law is

clear in the sense that, if such certificates of validity, granted by the duly

authorized scrutiny committee are brought to the notice of the tribe

scrutiny committee in the present proceedings, then, they are strong

proof or evidence, they can be relied upon to grant a caste / tribe validity

certificate, unless there is a proof of a fraud or misrepresentation. Mr.

Barlinge, submits that it is not enough to ignore these certificates of

validity on the ground that when they were granted, detailed scrutiny

and verification was not done. The sweeping observation that, the merits

of the claim were never considered is invariably made in such orders.

For the criticism of Mr. Barlinge is to be considered, he would submit that

in the present case, the certificate of validity issued to one relative from

the paternal side was upheld by this Court. Once it was upheld by this

Court, then, there was no warrant for discarding or brushing aside the

same. The committee's order, therefore, is perverse and vitiated by total

non-application of mind.

7. On the earlier occasion, when these matters were argued,

this Court noticed that, if certificates of validity were issued to close

relatives from the paternal side and certified / true copies of the same

are produced, then, it would be better if the original record is brought

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before this Court and for its perusal.

8. Mr. Patil, appearing on behalf of the state and scrutiny

committee, produces the record for our perusal. He would also submit

that the committee has been influenced to a great extent by certain

judgments of this Court and observations made therein, to the effect that

every case has to be decided on its own merits. Therefore, the scrutiny

and verification cannot be dispensed with merely because such

certificates are produced. Mr. Patil, therefore, would support the

conclusion of the committee.

9. With the assistance of both advocates, we have perused the

petition and its annexures, as also the original records. The petitioner

produced as many as twenty documents. They inter alia included

certified true copies of validity certificates issued by Nashik Committee to

one Suyog Pandurang Baviskar. An affidavit was also filed by said Suyog

and establishing the relationship with the petitioner-applicant. Then, a

certificate of validity issued to one Pandurang Damu Baviskar, father of

the petitioner in writ petition no. 801/2014 was also produced.

10. The scrutiny committee, however, held that when the leading

judgment in the case of Madhuri Patil V/s. Additional Commissioner

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and Ors. reported in AIR 1995 SC 894, was brought to its notice and

equally the Maharashtra Act No. 23 of 2001 and the rules made

thereunder, then, on the strength of the father's validity certificate, the

petitioners cannot succeed. The committee went about forwarding the

documents to the Vigilance Cell, for a vigilance inquiry, however, it forgot

and overlooked that such vigilance inquiry was conducted by the

Vigilance Cell of Nashik Committee in the case of (Suyog writ petition no.

801/2014). The findings of the vigilance inquiry are referred. The

committee, however, conveniently takes up one entry in the records of

Pandurang, namely the school record and says that he was admitted in

the School on 08.07.1972 but his caste was recorded as 'Hindu

Suryavanshi Koli'. It is in these circumstances, that the committee found

that even Pandurang has not obtained the certificate of validity, after a

thorough and proper scrutiny, that is why the committee feels that it is

justified in then asking the petitioner writ petition no. 801/2014 to prove

his affinity and connection with the Scheduled Tribe. This is how the

committee took about six years. The committee framed about four points

and held that the petitioner-applicant has failed to prove any

documentary evidence. Secondly, he has failed to clear the affinity test.

Thirdly, he has failed to establish and prove his status as a Scheduled

Tribe. The important point no.4 was whether certificate of validity issued

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to petitioner's father and brother precludes the committee from deciding

the petitioner's claim on merit. That the committee says, it is not

precluded and, therefore, answers this point as well in the negative.

11. The reasons as far as point nos. 1 and 4 are that the

petitioner's father, though, having filed an explanation in writing and

stated that some time because of the illiteracy of the senior family

members, the entries could have been recorded in his school record as

above but that by itself is not decisive. The committee instead of

considering whether this admission is legal, valid and conclusive, not only

relied upon it but recorded that the petitioner's father has managed to

record the caste of the petitioner in his school record as 'Tokare Koli',

with a view to grab concessions meant for 'Tokare Koli Scheduled Tribe'.

The committee forgot that not only the father but the petitioner's brother

also possess a validity proof. That is why, it knew that it would have to

demolish the claims of these relatives as well. That is how it went about

referring to the affinity test. The justification for going into the affinity

test and its result has to be found in the reasons on point no.4. The

committee found that the first page of the service book of the petitioner's

father carries an entry in the caste column as 'Hindu Tokare Koli', then, it

remarks that earlier caste entry was 'Hindu Koli', but subsequently 'Hindu

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Tokare Koli' was also written besides this entry. No correction is made in

the first entry. From this entry it can be concluded that the petitioner's

father has rightly recorded his caste as 'Hindu Koli'. The earlier

committees have issued validity certificate to the petitioner's father and

brother but by neglecting these entries. Then, the affidavit of petitioner's

father dated 02.07.2005 is referred and the explanation therein that such

entries are made due to illiteracy of the parents. That ground and

explanation is rejected by picking up one paragraph from Madhuri Patil

(supra). The father also gave other reasons and which are rejected.

These reasons are re-produced by the committee in the impugned order

in its discussion on point no.4 at running page 40 of the paper book. The

committee, then, holds that the petitioner's father has relied upon the

certificates of blood relatives but still it will have to decide each and

every case on its merits.

12. This Court has repeatedly held that such approach of the

committees would result in utter chaos, the result is for all to see. A

Committee at Nashik accepts the father's claim and issues him certificate

of validity. The committee at Nandurbar finds fault necessarily with the

claim of the father but the committee at Nashik does not. However,

Nandurbar Committee thinks that it has an appellate power or a power

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by which it can discard the certificates of validity issued by the Nashik

committee. It goes behind the order of the Nashik committee and holds

that the committee did not consider the claim on merits. That is why we

called for the original record and proceedings.

13. We found that in the case of Suyog Pandurang Baviskar, the

Scrutiny Committee at Nashik verified and scrutinized Suyog's claim as

belonging to 'Tokare Koli Scheduled Tribe'. Pertinently, Suyog is the real

brother of the petitioner in writ petition no. 801/2014. The scrutiny

committee at Nashik holds that a police inquiry has been conducted in

the matter and the vigilance cell submitted its report to the scrutiny

committee mentioning that the Tribe claim of Suyog's uncle from the

paternal side Pratap-Waman Baviskar, is upheld by the Commissioner,

Nashik Division, Nashik in Appeal no. 58 of 1992, as well as, by this

Court in Writ Petition No. 1703 of 1993. The tribe claim of Pratap's

children Shailendra and Chitra have also been validated by the scrutiny

committee. While it is true that those were some of the relatives from

the maternal side but Suyog's claim was not decided exclusively by

relying on these certificates of validity issued to the relatives from

maternal side. The Scrutiny Committee at Nashik had before it an

affidavit of another relative and within that family, it may be that the

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Scrutiny Committee at Nashik comes to a conclusion that these are near

relatives. It may have missed the point that the relatives are from

maternal side but that by itself without anything more does not mean

that it failed to scrutinize Suyog's claim on merits. If one finds that

police inquiry was conducted in the matter and vigilance cell submitted

the report to the Scrutiny Committee while scrutinizing and verifying

Suyog's claim, then, that is a detailed order and contains reasons.

14. We do not think, how the committee in the impugned order

and sitting at Nandurbar comes to a conclusion that Suyog obtained the

certificate of validity from the Nashik Scrutiny Committee without any

adjudication of his claim on merits.

15. We are left with such reasoning of the committee, which

tempts us to observe that when certificates of validity are produced of his

real brother and granted to his father, the committee cannot start with

the presumption of dishonesty, fraud and equally misrepresentation. The

presumption ought to be otherwise. These are valid and substantial piece

of evidence and for them to be discarded, there has to be a established

fraud.

16. In the present order, the Nandurbar scrutiny committee holds

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that ratio of the validity certificates granted to the father and brother

cannot be relied upon by the petitioner. That is because, though, his

father and brother have obtained such certificates of validity, the father

failed to prove his socio-cultural affinity test with 'Tokare Koli Scheduled

Tribe'. It is in these circumstances, that the committee feels that the

judgment of this Court in the case of Muktai Gulab Deoraj V/s. State

of Maharashtra and Ors., in Writ Petition 8776/2010 would clinch

the issue. The committee erred in that case according to the Division

Bench in granting a certificate of validity in favour of the father of Muktai,

ignoring the vital documentary evidence showing caste of petitioner's

father 'Suryavanshi Koli' and grandfather's caste as 'Koli'. Therefore,

when this Court passed an order and through its various Benches in

about 10 or 12 cases relying upon the entries 'Hindu Koli', that does not

mean that the entire community or members of this community / tribe

have derived benefits and concessions wrongfully and fraudulently. That

the whole community or tribe, therefore, is not what it projects itself to

be but a forward caste or tribe. We do not think how some orders of this

Court can lead to a general presumption. That has coloured completely

the conclusion of the committee in the impugned order.

17. Not a word is there about any fraud or misrepresentation.

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There is only reference to some general observations in this Court's

various judgments and on the strength of the same, the claim of the

petitioner is denied. Pertinently, the Nashik Committee having gone

through the claim on merits may have erred in making some

observations. That does not mean a fraud was perpetrated by the family,

namely the petitioner's father, his real brother on scrutiny committees

and the general public. Something more was required to be brought on

record. In the instant case, we do not find that there was enough

material to discard and brush aside these certificates of validity.

Pertinently, the petitioner's father and his brother are issued a certificate

of validity. Hence, no reliance could have been placed on the orders, of

this Court in the case of Govind Ratan Saindane and Rupali Uttam

Saindane. There may be some relatives of the present petitioners from

maternal side, who have obtained the benefit, however, we are not going

by those certificates but we are referring to the reasoning in the present

order and impugned before us, which ignores and completely brushes

aside the certificates of validity issued to the petitioner's brother and

father. The original records have been called only with a view to

ascertain the correctness of the factual submission. That submission was

that certificates of validity were issued to Suyog and the petitioner's

father, after a thorough scrutiny and verification. We do not think that

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the reliance on Suyog's order and the proceedings before the Nashik

Committee was, therefore, not well placed. We find that this reliance is

quite apposite.

18. In the result, we cannot sustain the impugned order, it is

vitiated by total non application of mind and perversity, in the sense it

ignores and brushes aside reliable and valid piece of evidence.

19. Before parting with the orders, we wish to observe that there

is an increasing tendency and a pattern which emerges from the

committee's orders and impugned before us. The committees in the

cases of 'Tokare Koli Scheduled Tribe' and 'Koli Mahadev Scheduled Tribe'

have on most occasions prejudged the issues before them. They have

started with the presumption that the claims of the applicant's before

them and towards these tribes are patently fraudulent or dishonest and

cannot be accepted. The general rule is of denial of certificates of

validity. In the process, these committees have created total confusion

and utter chaos. If one member of the family and a close relative from

the paternal side has obtained the certificate of validity, say for example

and in the instant case at Nashik, from the Nashik Scrutiny Committee,

promptly, the Nandurbar Scrutiny Committee feels it obliged to discard it.

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That it has made some discovery and has some documentary evidence is

enough for it to ignore the certificate of validity granted by a Competent

Scrutiny Committee.

20. The committees ought to be aware that they are not

discarding some documents or documentary piece of evidence relied by

parties. By the above approach, they are doubting the genuineness and

sanctity of the proceedings before another Scrutiny Committee. That is a

disturbing trend. If you start doubting your own colleagues and brother

members of the Scrutiny Committee, then, possibly the whole edifice as

is sought to be built by the Act No. 23 of 2001 will collapse, rather it has

already collapsed. If this trend increases, then, we would not hesitate to

wind up and dissolve such committees in writ jurisdiction for we cannot

remain a silent spectator to such chaos and confusion. Our time is

indeed very precious. The deserving litigants and cases have to wait

only because this Court on the eve of school and college admissions,

employment drives and elections is flooded with petitions challenging

rejection of certificates of validity by scrutiny committees, even though

the documentary evidence of the above nature is produced before them.

Now another trend has emerged and that is not only a certificate of

validity is refused but even the caste / tribe certificate is not issued.

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Such orders are invariably upheld by the scrutiny committees resulting in

additional litigation before this Court.

21. We do not think that Act No. 23 of 2001 if implemented and

enforced in this manner works for the benefit and upliftment of

Scheduled Tribe and Scheduled Castes.

22. We feel that such acts are enacted so as to end casteism and

untouchability and bring about equality. Some day there would be no

need for an Act like this or a Scrutiny Committee or a caste certificate

itself, however, that hope is belied because though the number of tribals

taking education, employment, proceeding to contest elections is

increasing, still once they are denied these benefits and concessions

meant for them, they would be discouraged and thrown back to

centuries. Their plight is sought to be improved by measures taken by a

welfare State, however, they are pushed back if the tribe certificates are

routinely denied to them as their plight is worse than the Scheduled

Castes.

23. In such circumstances, one more order of this nature and by

the Nandurbar Committee would enable us to take away all matters

pending before it and forward them to some other Scrutiny Committee,

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although, that might entail some loss to the litigants and applicants. We

however will not hesitate to do it. Secondly, we will also not hesitate to

pass an order of removal of such of these scrutiny members, who

routinely indulge in these acts. We issue a warning to them that

hereafter such an approach will attract penalties as well.

24. We refrain from imposing personal costs on these Members

who have passed the impugned orders only because they may have

ceased to be Members by now and Mr. Patil was fair and reasonable in his

approach. He did not defend their actions beyond a point. However,

even that course is open for us and we wish to remind all concerned.

25. The writ petitions are allowed. The impugned orders are

quashed and set aside. The certificates of validity shall be issued to the

petitioners within a period of (2) two weeks from the date of receipt of a

copy of this order, failing which the officials of the Scrutiny Committee

will have to pay personal costs quantified at Rupees Fifty Thousand (Rs.

50,000/-) each. Rule is made absolute accordingly.

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


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