Mr. Vineet S/O Vilas Gadmade vs Scheduled Tribe Caste Cert. ...
2017 Latest Caselaw 895 Bom

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                                                  1



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

WRIT PETITION NO.507/2017 AND WRIT PETITION NO.1211/2017

WRIT PETITION NO.507/2017

Shubham Sharad Gadamade Aged 22 years, "Shivalay Apartments"

        Plot No.  218,  Reshimbagh,
        Opp:  C.P. & Berar  Vyayamshala,
        Nagpur-440 009.                                            ..PETITIONER

                                    v e r s u s

1)      The Scheduled  Tribe  Certificate 
        Scrutiny Committee, Nagpur 
        Through its Member-Secretary 
        Adivasi  Vikas Bhavan 
        Giripeth,  At & Po: Nagpur-440 010.

2)      State of Maharashtra
        Through its Principal Secretary
        Tribal  Development  Department 
        Mantralaya Extension 
        Madam Cama Road,  Mumbai-400 032. 

3)      The Directorate of  Technical Education
        Maharashtra State 
        Through its Regional Directorate 
        Joint Director Technical Education 
        Regional Office, 
        Govt. Polytechnic Campus, 
        Sadar Bazar, Nagpur-440001.





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4)        Principal,
          Yashwantrao  Chavan College of  Engineering 

Hingna Road, Wanadongri, Nagpur 441110. ...RESPONDENTS

...........................................................................................................................

Shri S.P.Khare, Adv. for petitioner Smt.Ketaki Joshi, A.G.P. for Respondent nos.1 to 3 Shri P.D. Meghe, Advocate for Respondent no.4 ............................................................................................................................

WRIT PETITION NO.1211/2017

          Mr. Vineet  s/o Vilas Gadmade 
          Aged 22 years, occu; student 
          R/o Flat No.204, Baba Santosh Arkade 
          Ganesh Nagar, Nagpur.                                                                ..PETITIONER

                                          v e r s u s

1)        The Scheduled  Tribe Caste  Certificate 
          Scrutiny Committee, Nagpur 
          Through its Deputy Director and 
          Member-Secretary,Giripeth, Nagpur.

2)        Karmaveer  Dadasaheb Kannamwar College 
          of Engineering  Great Nag Road 
          Nandanwan, Nagpur- 440009
          Through its Principal.

3)        The Registrar 
          Rashtrasant Tukdoji Maharaj 
          Nagpur University, Nagpur. 

4)         Sub-Divisional Officer
           Umred Dist. Nagpur.                                                                  ...RESPONDENTS

...........................................................................................................................

Shri Ananta Ramteke, Adv. for petitioner Smt.Ketaki Joshi, A.G.P. for Respondent nos.1 & 4 Smt. Dashputre, Adocate for Respondent no.3-University ............................................................................................................................

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                                          CORAM:    B.P
                                                      . DHARMADHIKARI   &
                                                                         
                                                         MRS . SWAPNA  JOSHI, JJ
                                                                                . 
                                          DATED :       21  March,  2017
                                                          st



ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)

1. We are hearing arguments in these matters since last 3 to 4

days. Both these matters arise out of a common order passed by Scrutiny

Committee, namely, Scheduled Tribe Caste Certificate Scrutiny Committee,

Nagpur Division, Nagpur in Case Nos. 66 and 283 of the years 2011-12. The

petitioners-Shubham and Vineet are cousins.

2. Writ Petition No.507/2017 is filed by Shubham, on 21.12.2016

and, on 25.01.2017 this Court issued notice. Respondent no.4-College was

directed to arrange for and to return the documents of petitioner or then

point out the reasons for not returning the same, by filing an affidavit.

Shubham has completed his education i.e. Bachelor of Engineering (B.E.) but

his result has not been declared and the documents are withheld.

3. The other petitioner-Vineet's case is also identical and though

he has appeared in the examination, his result is also not declared as yet.

4. Both these petitioners though aware that their matter has been

decided by common order by Scrutiny Committee, have not disclosed to this

Court that his brother has filed the petition.

5. It is counsel for respondent no.1-Committee which after getting

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knowledge from the Officer of Scrutiny Committee, during hearing, pointed

out this fact and accordingly, we directed both the matters to be placed

together.

6. Adv. Khare has pointed out that there are already eight validities

given to blood relatives and those validities have been discarded only

mechanically. According to him, the approach of the Scrutiny Committee in

such matters is rather pedantic and without looking into the decisions of the

Hon'ble Apex Court in Civil Appeal No.5270/2004, the impugned order has

been passed. He has relied upon the judgment of Hon'ble Apex Court in the

case of State of Maharashtra vs. Mana Adim Jamat Mandal,reported at (2006)

Vol.4 SCC Page 98, and also pointed out the Division Bench judgment of this

Court, which formed subject-matter of consideration in that judgment of Apex

Court.

7. Adv. Khare argues that Government Resolution (G.R.) which was

found invalid by that Division Bench i.e. dated 24.04.1985 has correctly

described the traits and customs to be applied,to find out whether person

belongs to 'Mana' scheduled Tribe or not. Those traits then found invalid

could not have been overlooked by Scrutiny Committee after 'Mana' has

become an independent entry as Scheduled Tribe by severing its connection

with Gonds. He contends that thus wrong norms have been applied and

affinity has been judged on incorrect touchstones.

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8. He submits that a Book titled 'People of India (Maharashtra)'

Volume XXX Part Two published by Anthropological Survey of India, ought to

have been looked into and failure to do so again has resulted in denial of

justice. He contends that the test of primitiveness was relevant in 1935 but

with the progress and advancement in society, is not now that relevant. He has

taken us through various vigilance reports on record, to urge that those

reports are grossly insufficient and do not record any finding on affinity.

9. Though three vigilance reports to which our attention has been

invited i.e. dated 09.07.2012, 26.08.2015 and 08.08.2016 are not filed as

part of petition, same have been made available to this Court during

arguments. After show cause notices and reports were made available for

perusal of this Court with replies thereto submitted by petitioners, we had

adjourned the matter as requested by learned A.G.P. to enable her to obtain

necessary instructions. Hearing was resumed thereafter.

10. Adv. Ananta Ramteke, appearing for petitioner in Writ Petition

No.1211/2017 has adopted arguments of Adv. Khare and, in addition, has

invited our attention to Division Bench judgment of this Court, in the case of

Mayur Nannaware vs. Scheduled Tribe Caste Certificate Scrutiny Committee

and others, reported at 2014 (Vol.1) Mh.L.J. 437 and, Apoorva Nichale vs.

Divisional Caste Certificate Scrutiny Committee, reported at 2011 (Vol.2)

BCR 824. He contends that in view of the validities already available in the

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family, when the vigilance inquiries were already conducted, it was not open

to Scrutiny Committee to undertake that exercise again or to reach a different

conclusion on the basis of very same documents. He further adds that the

validities already awarded should have been acted upon and the petitioners

were not therefore required to do anything more.

11. Learned A.G.P. has taken us through the Division Bench

judgment of this Court in the case of Mana Adim Jamat Mandal vs. State of

Maharashtra and others, reported at 2003 (Vol.3) Mh.L.J. 513, in an effort

to distinguish that judgment. It is contended that after G.R. dated 24.04.1985

was found bad and unsustainable, the Scrutiny Committee has rightly looked

into affinity angle. She points out that several opportunities were given to

petitioners and there have been five vigilance enquiries, in view of documents

produced on record from time to time. Few documents were even found

interpolated by Vigilance cell. In some documents, caste was found recorded

as 'Mani'. In this situation, merely on the strength of documents caste claim

could not have been decided and, therefore, affinity test has been applied. She

invited our attention to exercise of vigilance as is apparent in three vigilance

reports, mentioned supra. She contends that statements of elderly members in

the family were recorded. Information about traits, customs was obtained and

then a show-cause notice was issued to both the petitioners. Petitioners have

given their replies to the same, but have not tendered any evidence and

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avoided to discharge the burden cast upon them by Section 8 of the Act

No.XXIII of 2001. She therefore submits that as there is no jurisdictional error

or perversity in impugned orders, the petitions need to be dismissed.

12. While replying to arguments of learned AGP, Shri Khare

earnestly requested for one more opportunity to the petitioners. According

to him, petitioners have appropriately replied to show cause notice after due

vigilance report and they have pointed out on each occasion the material in

their support. He, upon instructions, states that petitioner-Subham is ready

and wiling to deposit the difference /balance amount of tuition fee and

others fees for 2013-14 session as open category student, if his result is

declared and he is permitted to prosecute his studies further. He also states

that the petitioners were under the impression that procedure prescribed in

law is being followed and therefore did not, at any time, volunteer to

adduce evidence as expected by Section 8 of Act No.XXIII of 2001. He

submits that petitioners have acted as per legal advice. He also submitted, in

this situation, reasonable amount is ordered to be deposited with the Scrutiny

Committee as costs, only to show their bona fides, petitioners are ready and

willing to do so.

13. Learned A.G.P. has strongly opposed any remand. She contends

that several opportunities have been given to petitioners and they have also

utilized it to the hilt. In this situation, ordering remand at this stage would

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be putting a premium on their nefarious designs. She points out that on

previous occasion not only writ petition but contempt petition was also filed

for expeditious disposal of caste claim and still appropriate evidence was not

adduced. Our attention is invited to 2003 Rules framed under Act No.XXIII of

2001 to urge that therein the procedure has been prescribed and that

procedure has been followed by the Committee. As there is no challenge to

any statutory provisions and as 2003 Rules are subject to Section 8, the

order of Scrutiny Committee deserves to be maintained.

14. Adv. Ramteke has pointed out that caste 'Mani' and 'Mana' are

synonymous and imply one and same thing. Inviting attention to impugned

order of Scrutiny Committee, he states that certificate at Sr.No. 4 looked into

paragraph 7 there, shows an entry of a male child born to one Dasru Kisan.

The date of birth is 13.07.1923 and there caste is recorded as 'Mana'.

Certificate at Sr.No.16 in that paragraph is about death of very same Dasru

Kisan. That death has taken place on 14.06.1957 and while recording his

caste, the word 'Mani' has been employed. He submits that person in

certificate at Sr.No. 4 and at.Sr. No. 16 is same and his case therefore cannot

be different. According to him, in this situation, had petitioners been given a

proper opportunity, they could have pointed out all relevant aspects to the

Committee.

15. We have perused the order of the Scrutiny Committee with the

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assistance of respective counsel. The document at Sr.No.4 about male child

born to Dasru Kisan and document ar Sr.No.16 about death of Dasru are not

found to be tampered or interpolated. As such, caste noted therein could not

have been different. Findings of Committee in para 21(d) show an

undisputed entry 'Mana' in the year 1922 to 1928. Other entries of relatives

of petitioners during said period are 'Mani'. Old records containing these

entries are found "intact" by the Scrutiny Committee.

16. In the light of arguments advanced, we have also considered the

scheme of 2012 Rules framed under Act. No.XXIII of 2001. There while

dealing with report of vigilance cell and issues to be dealt with as also in Rule

17 while dealing with the procedure of Scrutiny Committee, the relevant

stages are prescribed. Under Rule 17(1) Scrutiny Committee has to first

ascertain whether it has received complete caste claim and necessary

information. Under sub-rule (6) if Committee is satisfied after perusal of caste

claim about the genuineness of Scheduled Castes or Scheduled Castes

converts to Buddhism or Denotified Tribes or Nomadic Tribes or Other

Backward Class and Special Backward category claim, the Scrutiny Committee

has to forthwith issue validity certificate without enquiry by Vigilance cell.

Under Sub-rule (7), if after such verification the Committee finds that

documents do not satisfy or conclusively prove that status, it has to refer

the caste claim to Vigilance cell for carrying out suitable enquiry. The proviso

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thereto specifically stipulates that finding recorded by vigilance cell are not

binding on Scrutiny Committee as said enquiry by Vigilance is only meant for

its internal assistance. The Scrutiny Committee has to record its reasons for

discarding the report of Vigilance cell. Sub-rule (8) and sub-rule (9) are

about the steps to be taken by Vigilance cell. Sub-rule (10) then speaks of

cases which are referred to vigilance cell. If after receipt of the report of

Vigilance cell, the Scrutiny Committee is satisfied about genuineness of status

of the applicant, it can decide matter finally by written decision and forward

copy of that decision and validity certificate to the concerned authorities or

authority. Sub-rule (11) (i) envisages case in which Scrutiny Committee is

not satisfied about the claim of applicant. In that contingency, it has to call

upon applicant to prove his caste claim by discharging his burden as

contemplated under section 8 of Act No. XXIII of 2001 and for that specific

purpose, form i.e. Form No.25 has been prescribed. Under sub-rule (ii) if

after such a notice is issued, an applicant requests through written application

for copies of Vigilance enquiry report or any other document, the request can

be granted. In present matter, we need not dwell upon further procedure.

17. Form No.25 reveals that the Committee, while issuing notice to

applicant to discharge his burden by adducing evidence under section 8 of

Act No.XXIII of 2001 is required to disclose its findings on Vigilance cell. The

Form then shows that therein after disclosing those reasons, the finding of

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Committee that it is not satisfied about applicant's caste appears and the

claimant/ applicant is informed accordingly. The later paragraph in Form No.

25 then invites his attention to Section 8 of the Act and of burden cast upon

him thereby.

18. Though these rules are not applicable to the verification of caste

claim of present petitioners and procedure for verification is prescribed in

2003 Rules framed for that purpose, it is admitted position, the status of

vigilance report in present matter, is not different. The vigilance report even

in present matter is only for assistance of Scrutiny Committee.

19. On 24.02.2017, while deciding Writ Petition No. 6449 and 6450

both of 2016 filed by one Sk.Hamid Sk. Hanif in relation to 'Lohar' (V.J.{B})

caste, this Court has looked into the scheme of Rule 17 of the Maharashtra

Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis),

Nomadic Tribes and Other backward Classes and Special Backward Category

(Regulation of Issuance and Verification of) Caste Certificate Rules,2012.

Following observations made therein hold good even in present matter.

"(A) Finding recorded and opinion expressed, if any, by the Vigilance Officer are neither binding on Scrutiny Committee nor can be used as evidence, in support of the Claim. (B) Rule 17(6) empowers the Scrutiny Committee to forthwith issue Validity without enquiry by vigilance cell, in appropriate matters.

(C) Other wise, it refers the claim to the vigilance cell under sub-

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rule (7). Finding recorded by the Vigilance Cell is not binding on Scrutiny Committee, as the vigilance inquiry is for providing internal assistance to it but the Scrutiny Committee must record its reasons for discarding the report of the Vigilance Cell which is in favour of the claimant.

(D) Findings of the Scrutiny Committee in Form 25 are only for not accepting the vigilance report when it is in favour of the claimant. (E) Even if the or When the said reports are against the the claimant seeking the validity, reasons for accepting it or additional reasons therefor are required to be communicated. Claimant is not entitled to demonstrate that the such vigilance report is bad and it should have been in his favour.

(F) Similarly, merely because this vigilance report is against the claimant, the validity can not be denied to him. If after grant of opportunity to him in terms of S. 8 of the Act no. 23 of 2001, he succeeds in discharging that burden, validity certificate must be granted to him.

(G) The Scrutiny Committee has to itself appreciate all material and it can not, as an appellate or supervisory authority seat over the vigilance cell and resort to passive application of mind. Errors or mischief, if any, by such vigilance cell officers, therefore can not enure to the benefit of either the claimant like petitioner before us or the objector like the respondent no. 2.

(H) When such findings in Form 25 are communicated, the burden caste upon the claimant by S. 8 of Act no. 23 of 2001 springs into life. As such, he can summon all the witnesses in support of the documents with him or elderly persons to establish his caste claim. Mere conducting cross-examination and showing that the vigilance

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cell acted wrongly in submitting an adverse report or the Scrutiny Committee erred in discarding the favourable vigilance report, is not sufficient to prove the caste.

(I) Object of providing a vigilance inquiry is only to cut short the otherwise elaborate procedure in genuine cases. This summary procedure is possible, when the vigilance report reveals that the caste claim appears to be genuine. In that event also, if the Scrutiny Committee agrees with it, validity can be immediately issued. Otherwise, if records dissent, elaborate procedure needs to be adopted. It has then to fix the matter formally for claimants evidence in support of his caste claim.

(J) When obligation under S. 8 of 23 of 2001 Act springs into life and the claimant has to prove his caste, the vigilance report only remains a document on record of the proceedings not binding on anybody. Mere adverse report on his caste by the vigilance cell can not be used to deny validity without giving the claimant an opportunity to prove his case in terms of S. 8. If he does not use that opportunity, his caste claim can be rejected not because of adverse vigilance cell report but because of his failure to substantiate it. (K) If at that stage, he leads proper evidence in support of his caste, the same may be validated."

20. In this situation, when vigilance enquiry is only for assistance of

Scrutiny Committee and, therefore, an internal affair, petitioners cannot

succeed in obtaining validity merely by demonstrating that vigilance enquiry

was /is faulty. They have to lead evidence in terms of burden cast upon them

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independently and thereby substantiate their caste claim. Unfortunately, in

all matters argued before this Court and even in present matter, arguments

have been advanced as if by showing that finding of Vigilance cell is bad, the

petitioners would be entitled to grant of validity. Having realized this error,

the petitioners offered to pay difference/balance in amount of tuition fee and

other fees as open category student and also to pay some costs to Scrutiny

Committee, to show their bona fides.

21. Here, perusal of record shows some substance in contention of

Adv. Khare that at one juncture, the norms prescribed in G.R. dated

24.04.1985 were found valid to judge the status of a person as belonging to

'Mana' Scheduled Tribe. That G.R. is being relied upon by him, to urge that

even today those tests are valid. According to learned A.G.P. those tests were

in the backdrop of law then prevailing, particularly judgments of Hon'ble Apex

Court, in the case of Dina vs. Sukhdeobabu and others, reported at AIR 1980

SC 150. After judgment of Division Bench of this Court and the judgment of

Hon'ble Apex Court in the case of State of Maharashtra vs. Mana Adim

Jamat Mandal ( supra), it has become clear that those norms ascertained by

associating 'Mana' with gonds were not valid. According to her, therefore,

reliance upon G.R. dated 24.04.1985 now at this stage is not valid. She also

states that the G.R. is already quashed and set aside.

22. Effort to fall back upon G.R. dated 24.04.1985 as recording

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correct tests to decide affinity of 'Manas' needs an in-depth enquiry.

Whether 'Mana' as it now stands takes into fold all Mana people or still it is

permissible to divide them as tribal Manas and non-tribal Manas. Impact of

G.R. Dated 24.04.1985 may call for scrutiny in that backdrop. Whether

'Manas' then looked into on 24.04.1985 constituted a different group then

present 'Manas' is the cardinal question. If group subjected to verification is

same, the G.R. Dated 24.04.1985 may be valid even now. The Book of

Anthropological Survey of India may also throw some light on this aspect.

23. In these matters, after perusal of records, as we find that

petitioners were never expressly called upon to discharge burden cast upon

them by adducing evidence under section 8 of Act No.XXIII of 2001, we are

inclined to grant them one more opportunity. Validities already available

cannot be lightly discarded. However considering the previous chequered

history and litigation, we saddle upon them costs of Rs.50,000/- (rupees fifty

thousand). The petitioners shall deposit that amount with Scrutiny Committee

within four weeks from today.

24. It is open to petitioners to pay to their College the difference/

balance in amount of tuition fee and other fees as open category students to

their respective Colleges for year 2013-14. If the Colleges receive such

amount, the respective college shall then inform the University accordingly

and the concerned University shall arrange to declare their results.

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Contingent upon that result and need thereafter, necessary documents

including mark-sheets etc. shall be returned by the respective College to the

concerned petitioner. If ultimately the caste claim is invalidated, the State

Government shall be free to take necessary action for recovery of the

amount in terms of Section 10 of Act XXIII of 2001.

25. If the petitioners deposit the amount of costs with Scrutiny

Committee as mentioned supra, we direct them to appear before the

Committee on 3

rd May 2017 . The Committee shall then extend to them

opportunity to adduce evidence, under section 8 of the Act of XXIII of 2001

and attempt to decide the caste claim afresh at the earliest. Only to facilitate

this exercise, the impugned order dated 29.09.2016 in both the Writ Petitions

is quashed and set aside.

26. Rule is made absolute accordingly.

                  JUDGE                                   JUDGE

sahare