Bombay High Court
Jitendra Bhalchandra Salunke vs The State Of Mah And Ors on 20 June, 2017
Bench: S.C. Dharmadhikari
*1* 902.wp.7534.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7534 OF 2012
Jitendra s/o Bhalchandra Salunke,
Age : 28 years, Occupation : Present Nil,
R/o 20-B, Kiran Society,
SRP Colony, Nakane Road,
Deopur, Dhule, District Dhule.
...PETITIONER
-VERSUS-
1 The State of Maharashtra.
Its Secretary, Tribal Development
Department, Mantralaya, Mumbai-32.
2 The Committee for Scrutiny and
Verification of Tribe Claims,
Through its Deputy Director (Research),
Nandurbar, Division Nandurbar.
3 The Sub Divisional Officer,
Shirpur Division, Shirpur,
District Dhule.
4 The North Maharashtra University,
Jalgaon.
Through its Registrar,
Jalgaon-425001.
5 The Principal,
Adarsh Shikshan Prasarak Mandal,
Bapusaheb D.D.Vispute College of
Education, Walwadi, Dhule-424002.
6 The Deputy Commissioner (Administration),
Department of Social Justice and
Special Assistance, Commissionerate of
Social Welfare, Maharashtra State,
Churchgate, Pune.
...RESPONDENTS
::: Uploaded on - 28/06/2017 ::: Downloaded on - 28/08/2017 06:48:17 :::
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WITH
CIVIL APPLICATION NO.4041 OF 2014
IN WP/7534/2012
WITH
CIVIL APPLICATION NO.2139 OF 2017
IN WP/7534/2012
JITENDRA BHALCHANDRA SALUNKE
VERSUS
THE STATE OF MAH AND ORS
...
Advocate for Petitioner : Shri A.S.Golegaonkar a/w Shri M.A.Golegaonkar
h/f Shri Koralkar Arun H.
AGP for Respondents / State : Shri P.S.Patil.
Advocate for Respondent 4 : Shri Yogesh Bolkar h/f Shri A.B.Girase.
...
CORAM: S.C. DHARMADHIKARI
AND
MANGESH S. PATIL, JJ.
DATE :- 20th June, 2017
Oral Judgment :
1 Rule.
2 The Respondents waive service. By consent, Rule is made
returnable forthwith.
3 This Writ Petition under Article 226 of the Constitution of
India challenges the order dated 30.07.2012 passed by the Committee for
Scrutiny and Verification of Tribe Claims, Nandurbar, Respondent No.2 to
this petition.
4 The present petition was instituted in this Court in September,
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2012. On 10.09.2012, this Court while issuing notice passed the following
order:-
"1. Heard. Issue notice to respondents returnable on
08.10.2012. AGP waives service of notice for
respondents 1 and 3 and Mr.Tope, standing counsel
waives service of notice for respondent No.2.
2. Till the next date, no adverse order be passed against the
petitioner on account of non production of validity
certificate."
5 We have to set out very few facts to appreciate the arguments
of the Petitioner.
6 The Petitioner claims that he belongs to "Thakur" Scheduled
Tribe. That is duly notified and recognized as such. The First Respondent
is the State of Maharashtra through it's Department of Tribal Development
and which has set up Respondent No.2 Committee styled as "The
Committee for Scrutiny and Verification of Tribe Claims". The Third
Respondent is the competent authority within whose area of operation,
the Petitioner resides and therefore, has issued the Caste/ Tribe Certificate
in favour of the Petitioner. The other Respondents are the North
Maharashtra University, Jalgaon and the Principal of an Educational
Institution. However, we are not concerned with them any further as no
reliefs are claimed by the Petitioner against these Respondents.
7 The caste/ tribe certificate dated 12.11.1999 based on which
the Petitioner was seeking to pursue an educational degree course, came
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to be forwarded to Respondent No.2/ Scrutiny Committee. Along with the
same, the Petitioner claims to have forwarded 56 documents to support
the claim that he belongs to Thakur Scheduled Tribe. According to the
Petitioner, some of these were Tribe Validity Certificates issued in favour of
the Petitioner's relatives including his father Bhalchandra Baburao Salunke
on 21.07.2005. There is a Certificate of Validity issued by the Nashik
Scrutiny Committee in favour of the Petitioner's real paternal uncle
Pramod Baburao Salunke. The said Pramod had to file a writ petition in
this Court being Writ Petition No.2278/1996. Pramod challenged the
order of the Scrutiny Committee dated 24.03.1995 denying him the Tribe
Validity Certificate. This Writ Petition was allowed on 17.03.2004. As a
result of which, Pramod obtained the Tribe Validity Certificate. Then, there
is reliance placed upon another Certificate of Validity issued on
15.02.2003 by the Scrutiny Committee at Nashik in favour of the
Petitioner's real paternal uncle, namely, Manohar Baburao Salunke. The
Petitioner filed affidavits of these persons as also genealogy and family
tree. The Petitioner also relies upon the Certificates of Validity issued way
back on 24.02.1993 in favour of his paternal cousin aunt, Ranjana
Rambhau Thakur and dated 05.07.1997 and 20.01.2005 in favour of
other paternal cousin brothers Dipak Jayraj Thakur and Pankaj Shrikant
Salunke.
8 The Petitioner claims that he also forwarded other documents
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and styled as "First Page of Service Book" issued to his grandfather,
namely, Babu Gaba Thakur. Against relevant column (caste), it is
mentioned as "Thakur" in the said service book. It is stated that these are
very old entries and pertaining to the years 1928, 1939 and 1945.
Fortunately, the Petitioner claims that his grandfather is alive and he filed
his affidavit. Then, the Petitioner claims that entries as far as the caste
column in the school records of his father and others would indicate that
they are belonging to "Thakur" Scheduled Tribe.
9 The Petitioner further claims that each of these documents are
produced before the Vigilance Cell which was directed to hold an inquiry
and investigation after the Petitioner's tribe certificate was forwarded for
scrutiny and verification to Respondent No.2 Committee. The Vigilance
Cell Officials visited the village concerned. They interviewed these
persons. They have recorded that each of these persons are familiar with
the traits, characteristics, rituals, customs and practices in the Thakur
Scheduled Tribe. While it is true that the Vigilance Cell's report submitted
to the Scrutiny Committee on 11.04.2006 and any opinion of the Research
Officer dated 01.06.2011 are not binding, but probative value of
documents referred therein could not have been ignored. It is in these
circumstances that the Petitioner relies upon the direction of this Court to
expedite the scrutiny and verification of the claim. He would submit that if
his claim was not genuine and bonafide, this Court would not have
*6* 902.wp.7534.12
directed the Scrutiny Committee to expedite the process.
10 In these circumstances the Petitioner's Advocate Shri
Golegaonkar would submit that the Scrutiny Committee framed five
points. Five points framed by the Scrutiny Committee read as under:-
Sr.No. Issues Answer
1 Whether the tribe claim of the Applicant is proved by No.
way of documentary evidence?
2 Whether the tribe claim of the Applicant is proved by No.
way of affinity test?
3 Whether the removal of area restriction by Act No.108 of No.
1976 enables the Thakur Community to claim the status
of Thakur scheduled tribe?
4 Whether the applicant is entitled to scheduled tribe as No.
per current legal position?
5 Whether the validity certificate issued to applicant's No.
second cousin precludes the committee to decide his claim
on merit?
11 Shri Golegaonkar would submit that on each of these points,
the Scrutiny Committee rendered a finding in the negative. There is
absolutely no discussion much less, cogent and satisfactory reasoning by
which the Scrutiny Committee discards and brushes aside the voluminous
documentary evidence. He criticizes the observations in the Scrutiny
Committee's order and particularly on points 1 and 2. Shri Golegaonkar
would submit that every document produced by the Petitioner describes
his relatives' caste/ tribe as "Thakur" Scheduled Tribe.
12 Shri Golegaonkar would submit that the tribe was referred in
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the Constitutional provision as also in the notification issued by the
Governor only after Articles 341 and 342 are inserted in the Constitution
of India. Prior thereto, no tribe or caste was described as "Scheduled" as
no schedule was prepared. In such circumstances he would submit that
the order of the Scrutiny Committee is perverse and vitiated by total non
application of mind. The Scrutiny Committee's reasoning cannot be
sustained. Then, the criticism is that for discarding the certificates of
validity, the Scrutiny Committee has only expressed a view that same are
not conclusive and decisive. Relying upon the judgment of the Honourable
Supreme Court in the case of Madhuri Patil v/s Additional Commissioner,
1994 (6) SCC 241, it is mechanically recorded that the certificates of
validity cannot be taken into consideration once it is found that the
reports and records made available before the Scrutiny Committee at
Nashik itself were questionable and doubtful. The Scrutiny Committee at
Nashik has reasoned that in view of the High Court's orders, it has no
choice or alternative, but to issue the certificates of validity. Therefore, the
judgments, orders and certificates of validity issued in these cases cannot
be relied upon, is the conclusion of the Scrutiny Committee in this case.
Even this approach is criticized and mainly because it is contrary to
several judgments and orders of this Court. Shri Golegaonkar tenders a
compilation of such orders and judgments.
13 Pertinently, we do not find any denial of any factual assertion
*8* 902.wp.7534.12
made in this petition.
14 The learned AGP, however, would submit that the Scrutiny
Committee in the peculiar fact situation is placed in a difficult situation.
Suppose there are directions by this Court to issue the certificates of
validity to all only on the ground that in their family the father, brother
and sister such certificates have been issued earlier, then, the Scrutiny
Committee cannot scrutinize any claim at all. Eventually, the claims have
to be verified and scrutinized and each case must be decided
independently. It is possible that in a family, somebody has misrepresented
and misled the Scrutiny Committee and obtained the caste validity
certificate. That does not mean that in all matters such certificates of
validity have to be held as conclusive evidence. It is in these circumstances
a deeper probe and scrutiny is made and that is why this Court should not
be critical of the Scrutiny Committee's approach in this case. Secondly, the
Petitioner has failed in the socio-cultural affinity test. That is a valid and
lawful guide. Such test is held because in the orders of the Scrutiny
Committee at Nashik and heavily relied upon in this case, that Committee
was helpless and observed that none of the traits and characteristics of
"Thakur" Scheduled Tribe match with the description and explanation
given by the Petitioner's paternal cousin Pramod.
15 It is in these circumstances that the learned AGP would
submit that the Scrutiny Committee has rightly discarded these
*9* 902.wp.7534.12
documents. By it's independent scrutiny, investigation and verification, it
has held on all points against the Petitioner. These are pure findings of
fact. No legal issue is involved and therefore, this Court should not
interfere in it's writ jurisdiction in such orders as that would mean this
Court is a further appellate court. Once there is no perversity or error of
law apparent on the face of record, then, this Court should not interfere
with the impugned order in it's writ jurisdiction and consequently, the
petition be dismissed.
16 We have found from the record that the Petitioner produced
the certificate of validity issued to his father Bhalchandra by the Scrutiny
Committee at Nashik. The certificate of validity is dated 21.07.2005.
Pertinently, the tribe certificate of the Petitioner's father was issued on
22.08.1973 by the Executive Magistrate, Dhule. That certificate was
holding the field. It is common ground that when Bhalchandra's claim was
being scrutinized and verified, a thorough inquiry was made by the
Scrutiny Committee at Nashik. That is apparent from the communication
addressed to the concerned Police Officials. The Vigilance Cell was set up
even at that time. One Mr.V.M.Nikam attached to the said Vigilance Cell
and Police Officer addressed a communication to the Deputy Director
(Research) of Nashik Scrutiny Committee. He gave reference to not only
earlier certificates of validity, but pointed out that not only Bhalchandra,
but Bhalchandra's younger brother (Manohar) claimed the certificate of
*10* 902.wp.7534.12
validity. His real younger brother Manohar Baburao Thakur was issued the
certificate of validity on 15.02.2003 by the Nashik Scrutiny Committee.
Bhalchandra produced a certified true copy of such certificate of validity
issued to Manohar Baburao Thakur and even established relationship with
him. Then, one paternal cousin Dipak Thakur was issued the certificate of
validity on 05.07.1997 by the Scrutiny Committee at Nashik.
17 Additionally, Petitioner's father (Bhalchandra) filed an
affidavit on the stamp paper dated 12.07.2011 in which he not only
explained the circumstances in which the certificate of validity was issued
to him by the Nashik Scrutiny Committee, but pointed out as to how other
persons including Manohar are related to him. He has placed genealogy
and family tree before the Scrutiny Committee. Thereafter, the certificate
of validity issued to Pramod on 17.03.2004 was relied upon. Pertinently,
Pramod possesses the caste certificate issued by the Tahasildar, Nandurbar
on 24.11.1978. He obtained the certificate of validity by virtue of an order
passed by this Court. It is stated that this Court's order was binding on the
Scrutiny Committee and that is why it was compelled to issue the
certificate of validity in favour of Pramod. This finding of the Scrutiny
Committee and in the present order impugned before us belies the factual
position. Pramod was denied the certificate of validity on 24.03.1995. The
Scrutiny Committee at Nashik doubted the genuineness and bonafides of
his claim in rejecting the certificate of validity. Pramod was compelled to
*11* 902.wp.7534.12
file a writ petition in this Court being Writ Petition No.2278/1996. It was
decided on 06.10.2003. The order passed by this Court in that Writ
Petition reads as under:-
"The Petitioner's caste claim was invalidated by
the Respondent No.2 Committee by order dated
24.03.1995 as belong to Thakur Scheduled Tribe and
the said order is under challenge in this petition. While
granting Rule, interim relief in term of prayer clause
(d) was ordered by this Court on 22.08.1995 and as a
result thereof, the impugned decision came to be stayed.
However, in spite of the notice having been served on the
petitioner and the petition being transferred to this
Bench, none appeared on 17th July 2003 and therefore,
the petitioner came to be dismissed in default. By
allowing Civil Application St.No.28027 of 2003,
petition has been restored today.
2. A perusal of the impugned decision shows that the
Respondent No.2 Committee recorded a specific finding
that the petitioner belongs to the Thakur Caste (purely
non-tribal group) and the said caste having various sub-
castes and categories is not to be equated or mistaken
for Thakur community (including Ka and Ma
categories). In the view of the Committee, unless a
person belonging to Thakur Caste shows himself to be
belonging either to Ka and Ma Thakur sub-groups, he
would not be entitled for being called as Thakur
Scheduled Tribe. In recording this opinion, the
Committee appeared to be aware of the fact that the
Government of Maharashtra has declared Thakur caste
(purely non tribal group) as other OBC.
3. In view of our reasoning in Writ Petition No.2128 of
1996, the view taken by the Committee is unsustainable
and once the Committee has recorded a finding that the
petitioner belongs to the Thakur caste, it is not
permissible further to hold that he does not belong to
Thakur Scheduled Tribe. We will have to, therefore,
allow the petition.
4. In the result, the petition is allowed and the impugned
decision dated 24.08.1995 is hereby quashed and set
*12* 902.wp.7534.12
aside. The Respondent No.2 Committee at Nashik is
directed to issue Caste Validity Certificate in favour of
the Petitioner certifying that he belongs to the Thakur
Scheduled Tribe as expeditiously as possible and
preferably within a period of six weeks. Rule made
absolute accordingly with no order as to costs."
18 We do not see how this order and which not only binds the
Scrutiny Committee in Pramod's case, but equally the present Scrutiny
Committee, could have been ignored. Pertinently, this Court criticized the
approach of the Scrutiny Committee at Nashik in insisting on absolute
proof. It also referred to the fact that the certificate of validity was issued
to Manohar and in issuing that certificate of validity dated 15.02.2003,
the Scrutiny Committee at Nashik observed thus:-
"Shri Manohar Baburao Thakur has applied for
recruitment in Government Service against the seat
reserved for the Scheduled Tribe claiming himself as
belonging to Thakur, Scheduled Tribe. As per the
instructions contained in Government Resolutions
quoted in the preamble at Sr.Nos.(1) to (4) above, his
case vide the letter quoted in the preamble at Sr.No.(5)
above referred to the Scrutiny Committee for verification
of his tribe claim.
Whereas after gone through the documents, facts and
replies given by the applicant and considering the
various orders passed by the Hon'ble High Court of
Judicature at Mumbai in W.P. No.2746/1998,
5454/1998, 856/1998, the Caste Certificate of Shri
Manohar Baburao Thakur as belonging to Thakur,
Scheduled Tribe bearing No.Nil dated 31.12.1992 issued
by the Executive Magistrate, Sindkheda, District Dhule is
held valid.
This decision is applicable in this case only."
*13* 902.wp.7534.12
19 The documents relied on in Manohar's case were on record.
There are certificates of validity issued to other close relatives and from
the paternal side including one Ranjana Thakur. All these certificates of
validity were obtained after a prolonged legal battle. They were not
obtained or granted for the asking. They were not issued as a matter of
course or mechanically and in a stereotype manner. There were orders of
this Court in each of these cases and they reminded the Scrutiny
Committee of it's duty in law. We do not see any reason for discarding and
brushing aside such binding orders as the Scrutiny Committees nor the
Government challenged them at any stage. In our opinion, such
certificates of validity issued more than a decade back in favour of these
close relatives of the Petitioner could not have been brushed aside.
20 The Scrutiny Committees and constituted 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 (Maharashtra Act No.XXIII of 2001) (for short "the
Act"), somehow feel obliged to scrutinize and verify each and every claim
independently and on merits even if the same is laid by a member of the
very family in whose case certificates of validity issued to father, son,
daughter, real cousins and uncles from the paternal side are expressly
*14* 902.wp.7534.12
relied upon by the claimant-applicant. These certificates are not set aside
but holding the field. True it is that there could be cases where genuine
and bonafide tribals are deprived of the benefits because vocal amongst
them, who are educated or literate, grab them by resorting to illegal and
corrupt means. It could be that some bogus and dubious claims are
granted and certificates awarded with connivance and involvement of
even public officials. Further, true it is that such persons commit a grave
and heinous crime. However, we have never seen the Scrutiny
Committees, when questioning such certificates going further and deeper
into the matter. It is not enough to merely question or doubt the
documents. If the contents of such documents have to be demolished,
then, legally known means are available. The Committee ought to go
through the entire records including available anthropological data. There
are studies and research papers which would indicate the area where the
tribe was predominantly found and in a part of the State. If a person is not
originally from this part of the State, but by taking advantage of similarity
of names, surnames or some traits, characteristics, customs and practices,
passes himself as a scheduled tribe member and grabs benefits and
concessions by obtaining these certificates, then, we would expect the
Scrutiny Committees not to stop only by recording a general and vague
finding. Particulars of fraud perpetrated, details and from the data
available including the perpetrators, etc. have to be revealed. The
*15* 902.wp.7534.12
documents can be discarded if the Scrutiny Committee was bold enough
to forward them to the experts including handwriting experts and made
inquiries and investigation about the manner of their issuance in great
details. Nothing of this has ever been done by any Scrutiny Committee
though it is fully empowered by law to do so.
21 We find rarely Scrutiny Committees going and launching
criminal prosecution and bringing the guilty to book. Even if the State
launches criminal prosecution or private parties do so, still we do not find
that the Scrutiny Committees' rendering their assistance by appearing as
witnesses at the trial of such cases. Thus, the Committees should educate
the tribals about their rights through researchers and experts. Tribals
ought to be made aware by awareness campaigns being organized with
the help of District Legal Services Authority operating at district or even at
Talula level. Legal literacy campaigns so as to awaken the tribals and
making them aware of the fact that those who cannot be termed as tribals
at all, have grabbed all the benefits meant for them. We have never seen
any active campaign of this nature. Then, to say that every certificate of
validity produced cannot be accepted mechanically and scrutiny will have
to be held on merits in each claim laid by members of the family and it
must be decided independently, is not supportable at all. Such a finding
then cannot be sustained.
22 We have found from the impugned order that the Scrutiny
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Committee framed points for it's consideration. One of the point was,
whether, these certificates of validity issued to the Petitioner's father and
other relatives preclude the Scrutiny Committee to decide the claim on
merits.
23 There is no such prohibition as is entertained by the Scrutiny
Committee. That cannot be a proposition and as broadly laid down by any
judgments. The Scrutiny Committee is not precluded from holding
necessary verification and scrutiny and deciding the claim on merits if it
finds that the certificate of validity and certified true copy of which is
produced, is not valid piece of evidence and that is not reliable and
trustworthy as the same is obtained by perpetrating a fraud or
misrepresenting the Committees. Hence, the framing of point itself
indicates as to how the Scrutiny Committee has not applied it's mind to
legal principles. The Scrutiny Committee was aware that the Petitioner has
given reply to the opinions in the report of the Vigilance Cell in writing.
The Scrutiny Committee was informed that all certificates of validity are
legally admissible evidence. These have, therefore, high probative value.
However, the Scrutiny Committee feels that when inquiries are not held in
the manner set out by the Act, then, such certificates of validity have no
probative value. The letter of the Tribal Research Cell, which is relied
upon by the Petitioner has, therefore, no evidentiary value.
24 We are sorry to say that this is not a correct understanding of
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the matter. In the present case, the Scrutiny Committee was aware that
there are judicial orders pursuant to which certificates of validity have
been issued to the Petitioner's close relatives. Manohar, Ranjana, Pramod,
all of them fought a long legal battle and for decades together. Relying
upon their orders and passed by the competent courts, the certificate of
validity was issued to the Petitioner's father. It is unfortunate that the
Scrutiny Committee shows disrespect to this Court's orders. The Scrutiny
Committee disregards and brushes aside not only the orders, but
observations and conclusions therein though most of the orders are passed
after the Act was brought into effect. The Committee relies on convenient
observations and paragraphs from the said judgments which are picked up
and read completely out of context by the Scrutiny Committee. When you
read judgments and orders not in their entirety and as a whole, in the
backdrop of the facts, circumstances and material brought on record, then,
you are bound to fall into a grave legal error. This is apparent from
paragraphs after paragraphs of the discussion by the Scrutiny Committee
on the issue or Point No.5.
25 If the Scrutiny Committees are but a substitute for competent
civil courts, then, they ought to be aware that no civil court would have
discarded such valid piece of evidence unless it was established and
proved that same was tainted by fraud and vitiated by gross
misrepresentation. If the Scrutiny Committees are obliged to go into such
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details as are warranted by the Act, then, we do not find any application
of mind from that angle. It is a casual and lighthearted approach of all the
Scrutiny Committees, which we have noticed and the present Committee
is no exception. It reproduces paragraphs after paragraphs from some
orders and comes to a conclusion that the Nashik Scrutiny Committee has
reluctantly issued the certificate of validity to the Petitioner's father. True it
is that there are some findings in the Nashik Scrutiny Committee's order,
however, the Nashik Scrutiny Committee order very clearly says that in
Writ Petition No.3153/1996 (Sunil Murlidhar Thakur vs. State of
Maharashtra), this Court in it's judgment recorded that it is undisputed
that the Committee in that case recorded a finding that the Petitioner
belongs to Thakur, but it proceeded on an erroneous assumption to hold
that Thakur community is different than Thakur Scheduled Tribe. In the
light of this court's decision in the case of Chandrakant Bajirao Shinde vs.
State of Maharashtra, the Scrutiny Committee was not justified in
verifying the claim on the basis of sociocultural test, affinity test and
ethnic linkage to find out whether, the Petitioner belongs to Thakur
Scheduled Tribe, when admittedly, the documents produced on record
show in unequivocal terms that the caste was Thakur Scheduled Tribe.
The present Scrutiny Committee in the impugned order did not even apply
it's mind to such a judgment of this Court. These judgments cannot be
construed or interpreted like statutes for sustaining the approach of any
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Scrutiny Committee or upholding it. It is rather unfortunate that some
words which have been employed throughout are coined by the Scrutiny
Committees and those incharge of the Tribal Welfare Development. It is
not a creation of the courts. The courts are obliged to find out whether,
the reasoning is sound and based on judicial principles and reflects
application of mind and awareness to the facts. No Committee much less
any Scrutiny Committee or an Authority exercising judicial powers should
feel that it is compelled to obey and respect a judgment of this Court. That
it is bound to do. It is its constitutional obligation and duty as every
judgment and order of this Court binds it. Hence, we observe that Pramod
got benefits of the judgment of this Court and there was no necessity of
any independent discussion on his claim, but falling in the same error
which the Nashik Committee committed in passing orders denying the
certificate of validity to Pramod, the Committee at Nandurbar issued the
impugned order. A stray observation in Pankaj's case and made by that
Committee has been heavily relied upon. If Pankaj misled the Committee,
according to Respondent No.2/ Nandurbar Committee which passed the
order in this case, then, that was not enough. The Petitioner was relying
not only on Pankaj's order. The Committee at Nashik issued the certificates
of validity to Manohar, Pramod, Ranjana and the Petitioner's father. All of
them cannot be and are not guilty of fraud or misrepresentation. These
persons and noted above succeeded in proving their claims even prior to
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Pankaj and may be Pankaj obtained an advantage wrongfully by relying on
them. However, Pankaj's order and passed by the Scrutiny Committee at
Nashik was not enough to come to a conclusion that there is a fraud
perpetrated by the present Petitioner. That the present Petitioner
misrepresented and grossly, is also not a conclusion capable of being
recorded. To be precise, neither of these conclusions are recorded in the
impugned order. There are no findings, much less based on some reasons
and cogent material, of a fraud. In such circumstances no amount of
reference to the judgments and orders of this Court and picking up stray
observations therefrom, to conveniently record a negative finding, would
enable us to sustain the impugned order.
26 We do not think we should scrutinize the findings on other
issues as we have noticed patent non application of mind, perversity and a
gross error of law apparent on the face of the record. Once the finding on
issue No.5 can be termed as such and conclusion is wholly perverse, then,
the entire order of the Scrutiny Committee is unsustainable and cannot be
upheld in law.
27 For the above reasons, this Writ Petition succeeds. Rule is
made absolute in terms of prayer clauses (A) and (B), which read thus:-
"(A) This Writ Petition may kindly be allowed and kindly be
hold and declare that the petitioner belongs to "Thakur"
Schedule Tribe and direct the scrutiny committee to issue
the caste validity certificate within 4 weeks by issuing
appropriate writ, order or directives, as the case may be.
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(B) The impugned order dated 30.07.2012 passed by the
respondent No.2 Scrutiny Committee invalidated the
tribe claim of the petitioner of Thakur, Schedule Tribe,
may kindly be quashed and set aside by issuing writ of
mandamus or any other appropriate writ."
28 The Scrutiny Committee is now directed to issue the
Certificate of Validity to the Petitioner within a period of FOUR WEEKS
from the date of receipt of a copy of this order. Ordinarily, we would be
justified in imposing heavy costs and to be paid personally by the
members of the Scrutiny Committee for causing undue embarrassment
and harassing the Petitioner and his family, but we refrain from doing so
in the present case only because of the persuasion of the learned AGP.
Hence, no order as to costs.
29 All the pending Civil Applications are disposed of.
kps (MANGESH S. PATIL, J.) (S.C. DHARMADHIKARI, J.)
