Dheeraj Dnyaneshwar Salunke ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 2348 Bom

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  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
         AURANGABAD BENCH, AURANGABAD


              WRIT PETITION NO. 8207 OF 2016 

Dheeraj s/o Dnyaneshwar Salunke,
age 18 years, occ. Student,
through his father 
Dnyaneshwar s/o Pitambar Salunke,
age 9 years, occ. Service,
r/o Suhasnagar, Jamner Road,
Bhusawal, District Jalgaon        ...Petitioner
                 
         VERSUS

1]   The State of Maharashtra,
     through its Secretary,
     Tribal Development Department,
     Mantralaya, Mumbai - 32,

2]      The Scheduled Tribe Certificates
        Scrutiny Committee, Nandurbar
        Region, Nandurbar,

3]      The Director of Medical
        Education and Research
        Maharashtra State, Mumbai     ...Respondents

                         .....
Shri S.R.Barlinge, advocate for petitioner 
Smt. M.A.Deshpande, A.G.P. for respondents 
                         .....


     CORAM : R.M.BORDE AND K.L.WADANE, JJ.

               DATE OF RESERVING
               THE JUDGMENT              : 19.4.2017

               DATE OF PRONOUNCEMENT
               OF THE JUDGMENT         : 05.5.2017



::: Uploaded on - 06/05/2017          ::: Downloaded on - 07/05/2017 01:00:46 :::
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JUDGMENT (Per K.L.Wadane, J.) 

Rule. Learned A.G.P. waives service of

notice on Rule. Rule is made returnable

forthwith. With the consent of the learned

counsel for the parties, the petition is taken up

for final hearing at the admissions stage.

2. The petitioner is challenging the

communication/order of the Caste Scrutiny

Committee/respondent no.2 dated 30.6.2016.

3. The petitioner belongs to Tokre Koli

Scheduled Tribe and has received a certificate to

that effect from the competent authority on

21.11.2014. The tribe claim of the petitioner

was referred to the Scrutiny Committee by his

college on 26.12.2014. In support of the tribe

claim of the petitioner he submitted several

documents including validity certificate of his

father, his mother and the decision of this Court

validating the tribe claim of his brother namely

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Rohit Dnyaneshwar Salunke.

4. The Scrutiny Committee had invalidated

tribe claim of the brother of the petitioner on

31.8.2012, wherein it had considered the same

documents which the present Scrutiny Committee has

considered in respect of the petitioner. The

decision of the Caste Scrutiny Committee in the

case of Rohit Salunke was challenged in Writ

Petition No. 2902 of 2013 and this Court, after

considering all the documents and on verification

of the record of the Scrutiny Committee allowed

the said Writ Petition on 14.10.2014.

5. Despite the above referred decision in

favour of the brother of the petitioner, the same

Scrutiny Committee has invalidated the tribe claim

of the petitioner and it is further contended that

the State of Maharashtra is going to challenge the

decision of this Court in the case of Rohit

Salunke before the Hon'ble Apex Court. The tribe

claim of the near blood relation of the petitioner

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is validated and the validity certificate is not

obtained by fraud or representation. In such

circumstances, it would not be open for the

Scrutiny Committee to take contrary view. In

this view of the matter, the decision of the

Scrutiny Committee dated 30.6.2016 deserves to be

quashed and set aside.

6. The affidavit-in-reply is filed on behalf

of respondent no.2 and it is contended that in the

matter of Rohit Salunke the members of the

Committee want to mention that the Government of

Maharashtra has decided to challenge the order

passed by this Court before the Hon'ble Supreme

Court.

7. We have heard the arguments of Mr.

S.R.Barlinge, learned counsel for the petitioner

and Mrs. M.A.Deshpande, learned A.G.P. for the

respondents/State.

8. It is undisputed fact that tribe claim of

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the father and the mother of the petitioner was

validated by the concerned Caste Scrutiny

Committee and those certificates are still in

force and the same have not been set aside by the

competent authority. It is not the case of the

respondents that the validity certificate of the

tribe claim of the father and the mother of the

petitioner were obtained by fraud or that the

concerned Caste Scrutiny Committee was having no

jurisdiction to decide the tribe claim.

9. In such circumstances, it cannot be said

that the validity certificates of father and

mother of the petitioner were obtained by

suppressing material facts by fraud.

10. It is not in dispute that, the father of

the petitioner Dnyaneshwar Salunke, so also mother

of the petitioner Mrs. Surekha Salunke have been

issued with the validity certificates and their

tribe claims as belonging to Tokare Koli

(Scheduled Tribe) have been validated. The same

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is done after the vigilance enquiry report and

conducting the affinity test. It is undisputed

that, all the evidence which is considered in the

present case was available and produced on record

at the time of issuance of validity certificate of

father and mother of the petitioner.

11. No doubt, the argument canvassed by the

learned counsel for respondent No. 2/Committee

that validity certificates issued in favour of

near relatives cannot be the sole basis for

issuing validity in favour of the petitioner and

the basic documents are required to be considered

and they will play an important role, cannot be

disputed. However, considering the documents on

record showing the tribe as Tokare Koli and only

in one or two documents the caste is mentioned as

Backward Class and Koli would not be sufficient to

negate the claim of the petitioner, more

particularly, when on the basis of same evidence

led by the father of the petitioner, the

petitioner's father's tribe claim is validated.

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The   petitioner   was   minor.     The   father   has   given 

the statement and while giving statement regarding

affinity, it was observed that, the same is not in

consonance with the actual traits, custom of

Tokare Koli. However, the same evidence led by

the father while considering case of the

petitioner's father was accepted to have passed

the affinity test. A diagonally opposite view is

taken in the present matter and tribe claim of the

petitioner was turned down by the same Committee.

12. Mr. Barlinge, learned counsel for the

petitioner has relied upon the observations in the

case of Apporva d/o Vinay Nichale vs Divisional

Caste Certificate Scrutiny Committee, reported in

2010 (6) Mh.L.J. 401, wherein it is observed

that : -

" 4. We have considered the matter and we are of the view that the petitioner's caste claim that she belongs to Kanjar Bhat-Nomadic Tribe ought to have been accepted by the Committee merely on the basis that identical caste claim of her sister that she belongs to Kanjar Bhat has been allowed by the Committee, even

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apart from the Government Resolution. We are of the opinion that the guidelines provided by the said Govt. Resolution are sound and based on sound principles. It would indeed be chaotic otherwise. If the relationship by blood is established or not doubted, and one such relative has been confirmed as belonging to a particular caste, there is no reason why public time or money should be spent in the committee testing the same evidence and making the same conclusion unless of course the Committee finds on the evidence that the validity of the certificate of such relation has been obtained by fraud. "

13. The above observations of the Hon'ble Apex

Court are squarely applicable to the facts of the

present case. Further more, it is material to

note that the evidence placed on record at the

time of examination of the tribe validity of the

father and the mother of the petitioner is placed

on record by the petitioner in the present matter,

in which a different view is taken by respondent

no.2 Committee. In fact, there was no reason for

respondent no.2 Committee to disbelieve the

evidence led by the petitioner in support of his

tribe claim. It is contended that the State is

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intending to challenge the decision of validating

the tribe claim of the brother of the petitioner,

before the Hon'ble Apex Court, however, the

respondent failed to produce any record to show

that the decision of this Court in the case of

Rohit Salunke was challenged before the Hon'ble

Apex Court and the same was either stayed or set

aside.

14. Considering all the afore said aspects of

the matter, the judgment of the Committee cannot

sustain. As such, the same deserves to be set

aside.

15. In the result, the Writ Petition is

allowed. The impugned judgment and order passed

by respondent no.2 Committee dated 30.6.2016 is

quashed and set aside. Respondent no.2 Committee

is directed to issue validity certificate in

favour of the petitioner as belonging to Tokre

Koli (Scheduled Tribe).

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16. Rule is accordingly made absolute in the

above terms. There shall be no order as to costs.

         (K.L.WADANE)        (R.M.BORDE)
                  JUDGE               JUDGE


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