Mr. Akshay Santosh Gandhi vs State Of Maharashtra, Through ...
2017 Latest Caselaw 8924 Bom

Ladda 
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               CIVIL   APPELLATE  JURISDICTION

                             WRIT  PETITION NO. 6633 of 2014.

             1        Akshay Santosh Gandhi,                     PETITIONER.
                      age 19 years, residing at
                      post   :   Parshwanath   General   Store, 
                      Akluj Chowk,
                      Temburni taluka, Madha,
                      District Solapur

                                        VERSUS.
             1        State of Maharashtra,
                      through : Its Secretary,
                      Tribal Development Department,
                      Mantralaya, Mumbai 400 032.


             2        Scheduled Tribe Certificate
                      Scrutiny Committee, Solapur
                      Division, Solapur through its
                      Member-Secretary, having its
                      Solapur Division, District Solapur. 


             3        Seth   Govindji   Raoji   Ayrvedic 
                      College,   21/A/13,   Budhwarpeth, 
                      Samrat Chowk,
                      Solapur, District Solapur.


             4        Sub-Divisional Officer,
                      Madha Sub-Division at
                                                                                            1/21
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                  Kurudwadi, District Solapur,



        5        Maharashtra University of               RESPONDENTS
                 Health Sciences,
                 Gangapur Road, Nashik
                 through : Its Registrar. 


Mr.   Shailesh   Chavan   i/by   Mr.   Milind   Deshmukh, 
Advocate,  for the Petitioner. 
Mr. Bhupesh V. Samant, AGP for the Respondents.


                         CORAM  :  S.C. DHARMADHIKARI  &
                                       SMT. BHARATI H. DANGRE, JJ.

                          RESERVED ON:-          1st November, 2017.
                          PRONOUNCED ON:-   22nd November, 2017. 


JUDGMENT (PER: SMT. BHARATI, H. DANGRE,J)

1 The present writ petition is filed by the petitioner praying

issuance of writ in the nature of certiorari for quashing and setting

aside the impugned order dated 28th March, 2014 passed by the two

Members of the Scheduled Tribe Certificate Scrutiny Committee,

Solapur Division, Solapur ("the Committee" for short) with a further

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direction to issue caste validity certificate in respect of caste certificate

dated 5th July, 2012 issued to the petitioner by respondent No.4 as

belonging to the caste "Gujjar" (O.B.C.). Pending hearing and disposal

of the petition, the petitioner has also prayed for issuance of directions

to Respondent No. 3 and 5 not to cancel the admission of the

petitioner and continue him to pursue education.

2 The petitioner claims that he belongs to Gujjar Caste

which is recognized as OBC in the State of Maharashtra. According to

the petitioner, the school record of his father, uncle, grandfather and

other relatives from paternal side duly reflect the caste as "Gujjar".

According to the petitioner, based on the said documents, the Special

Social Officer Madha, Kurduwadi, District Sholapur issued him a caste

certificate as belonging to caste Gujjar (OBC 326) on 5 th July, 2012.

The said certificate was forwarded for verification to Respondent No.3

Committee and the petitioner participated in the enquiry for its

verification and produced voluminous evidence in support of his caste

claim. The Committee obtained Vigilance report and also conducted a

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detailed school/home enquiry. A home and school enquiry report was

received by the Committee on 10 th December, 2013 and since the

Committee was unable to agree with the findings of the said report, a

show cause notice was issued to the petitioner and he was afforded an

opportunity of hearing on several dates before the Committee. The

Committee took a decision on 28 March, 2014 and there was

disagreement between the members of the Committee. The Member

Secretary validated the claim whereas the Secretary and the Chairman

of the Committee invalidated the same. Since decision of the

Committee is the decision of the majority, the claim of the petitioner

as belonging to caste "Gujjar" was invalidated by order dated 28th

March, 2014.

3 We have heard learned Counsel Shri Milind Deshmukh

appearing on behalf of the petitioner and also Shri Samant, learned

A.G.P. appearing for the respondents.

4 The learned counsel appearing on behalf of the petitioner

vehemently argued that the Member Secretary has followed the right

course of action in validating the claim of the petitioner and ignoring

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the entries "Jain (Gujjar)" / "Gujjar (Jain)" by observing that "Jain" is

not a caste but a religion and the documents which reflected such

entries prior to Constitution specifically the entries of 1937-38 are of

great probative value and the said entries cannot be construed to mean

that there is a caste known as "Jain (Gujjar)" or "Gujjar (Jain)". The

learned counsel placed heavy reliance on the document of petitioner's

great grandfather Gautam Sakharam Gujjar of the year 1932 which is

a lease deed where the caste is mentioned as "Gujjar" and occupation

is mentioned as business. According to the learned counsel, the home

enquiry supported the claim of the petitioner since the local residents

reported that the grandfather, cousin grandfather of the petitioner

were belonging to caste Gujjar and they were engaged into activities

of agriculture and trading of agriculture products. According to the

learned counsel for the petitioner, the Committee ought to have

validated the claim of the petitioner since the vigilance enquiry report

supported the case of the petitioner as belonging to caste Gujjar.

5 Per contra, the learned AGP relied upon the majority view

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in the decision of the Committee and specifically referred to the record

relied upon by the petitioner and argued that the entry at Serial

No.326 in the list of other backward classes notified by the State

Government of Maharashtra specifically included caste "Dode Gujjar,

Leva Gujjar, Reva Gujjar, Suryawanshi Gujjar". However, did not

include Gujjar (Jain) or (Jain) (Gujjar) as allied caste. Mr. Samant

also relied upon the view expressed by the majority and would submit

that it was only the Gujjar residing at Dhule and Jalgaon Districts who

were entitled for being recognised as Gujjar and the petitioner and his

forefathers were residents of Solapur District and, therefore, they

cannot be said to be belonging to caste Gujjar which finds place at

Serial No.326 of the list mentioned above. Further the learned AGP

would also argue that the petitioners predecessors are found to be

engaged in an activity of trading whereas as per record the persons

belonging to Gujjar caste were engaged mainly into occupation of

agriculture. Mr. Samant also invited our attention to the Government

Resolution of 1st March, 2006 issued by the Social Justice, Cultural

Affairs and Special Assistance Department, Mantralaya, Mumbai by

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which the State Government on the recommendation of State

Backward Commission included certain castes in the list of other class

which was in existence. According to the learned AGP, Entry at Serial

No. 326 of the list of O.B.C., the caste "Dode Gujjar" was included,

however, by the said Government Resolution the following castes came

to be included at Entry No. 326 as corresponding castes/sub caste.

"Gujjar, Leve Gujjar, Reve Gujjar, Reva Gujjar, Suryawanshi Gujjar".

The learned AGP prays for dismissal of the writ petition

and for confirmation of the order passed by the Caste Scrutiny

Committee.

The said writ petition was filed by the petitioner on 7 th

July, 2014. On 3rd September, 2014, this Court considering the fact

that there is difference of opinion, amongst the members of the

committee, with regard to caste claim of the petitioner, was pleased to

grant interim relief in terms of prayer clause (d), by which the

petitioner has prayed for directions to respondent Nos. 3 and 5 not to

cancel the admission and allow the petitioner to appear for

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examination. This Court had made it clear that there was no question

of claiming any equities in case the final order goes against the

petitioner.

On 4th September, 2015 on a Civil Application filed by the

petitioner this Court directed respondent No.3 and 5 to declare the

result of the petitioner and permitted him to pursue further studies in

case he passes. On 8th November, 2017 we heard the matter and we

had asked the learned AGP to produce the original record before us.

Mr. Samant has also placed on record list of OBC in State of

Maharashtra so also the Government Resolution on 1st January, 2001

and Government Resolution dated 1st March, 2006.

6 We have carefully perused the impugned order and also

the record produced by the learned AGP.

The petitioner is claiming belonging to Gujjar caste

(O.B.C.). The State Government has published list of other backward

classes in the State of Maharashtra and entry No.326 as on date reads

as follows :

326 :- "दोडे गुजर - ३२६ :- गुजर, लेवे गुजर, रेवे गुजर, रेवा गुजर, सूयरवश ं ी गुजर"

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The petitioner claims to be belonging to Gujjar caste. In

order to substantiate his claim of belonging to the said caste, he relied

upon the documentary evidence in the form of the documents

reflecting his caste as Gujjar. As far as the petitioner himself is

concerned, he has relied upon the certificate issued by the Sub-

Divisional Officer, Madha Division Kurduwadi dated 5 th July, 2012

which mention his caste as "Gujjar". He has also placed on record a

document in the form of school leaving certificate issued by Principal,

Walchand College of Arts and Science, Solapur dated 27th July, 2010

where his caste is mentioned as "Jain". The petitioner has also placed

on record a school entry in the school leaving certificate of his father

Santosh Kailaschand Gandhi issued by the Head Master, Zilla parishad

Primary School, Upalwate, taluka Mhada, District Solapur where the

caste is mentioned as "िबगर मागास जैन " ("non backward Jain"). The

petitioner has placed reliance on a school leaving certificate of his

cousin grandfather namely Motichand Gautamchand Gujjar issued by

Head Mistress, Zilla Parishad Primary School, Kem, taluka Karmala,

District Solapur which in the caste column mentions the caste as

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Gujjar (Jain). The date of admission of said Motichand Gautamchand

Gujjar is shown as 6th November, 1930. The petitioner has also placed

reliance on document in favour of his real grandfather Kailash

Gautamchand Gujjar which is school leaving certificate issued by Head

Mistress, Zilla Parishad Primary School, Kem, Taluka Karmala, District

Solapur which shows date of admission 10th March, 1937. He also

placed his reliance on a school leaving certificate of his another cousin

grandfather Pammulal Gautamchand Gujjar issued by the same school

who had issued two earlier certificates where the caste is mentioned as

Gujjar Jain (गुजर जैन). Another document produced by the petitioner is

the school leaving certificate in favour of his cousin aunt Surekha

Motilal Gandhi issued by the Head Master, Zilla Parishad Primary

School, Upalwate, taluka Madha, District Solapur where date of

admission in the school is reflected as 13 th July, 1956. Another

document in favour of his real aunt, Shubhangi Kailashchand Gandhi.

Her school leaving certificate mentions the school admission as 1 st

June, 1964 issued by the Head Master, Zilla Parishad Primary School,

Uppalwate, taluka Madha, District Solapur. The petitioner also placed

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reliance on one document of his great grandfather Gautamchand

Sakharam Gujjar which is a school leaving certificate issued by Head

Master Zilla Parishad Primary School, Kem, taluka Karmala, District

Solapur, where the school entry is mentioned as 1 st April, 1889 and

which is in "मोडी" "modi" language. The said document mentions the

caste as "Gujjar".

The tabulation of these documents is reflecting the caste is as

below :-

Sr No. Details of document. Relationship to the petitioner.

1 Caste Certificate issued by Sub-Divisional Self.

Officer, Madha Division Kurduwadi in favour of Akshay Santosh Gandhi 5/7/2012 2 School Leaving Certificate issued by Self.

Principal, Walchand College of Arts and Science Solapur in favour of Akshay Santosh Gandhi dated 20/7/2010 3 School Leaving Certificate issued by Head Father Master, Zilla parishad Primary School, Upalwate, Taluka Madha, Distroct Solapur in favour of Santosh Kailashchand Gandhi dated 22/6/1972

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4 School Leaving Certificate issued by Head Cousin grandfather.

Mistress, Z.P. Primary School, Camp, taluka Karmala, District Solapur in favour of Motichand Gautamchand Gujjar 06/11/1930 5 School Leaving Certificate issued by Head Real grandfather Mistress, Z.P. Primary School, Camp, taluka Karmala, District Solapur Kailas Gautamchand Gujjar 10/3/1937.

6 School Leaving Certificate issued by Uncle.

Principal, Shri Uma Junior College of Arts and Commerce Solapur in favour of Sandip Kailaschand Gandhi 24/6/1985.

7 School Leaving Certificate issued by Head Cousin grandfather Master, Z.P. Primary School, Camp, taluka Karmala, District Solapur, in favour of Pammulal Gautamchand Gujjar 06/11/1930 8 School Leaving Certificate issued by Head Real paternal aunt.

Master, Z.P. Primary School, Upawate, Taluka Mahda, District Solapur, in favour of Shubhangi Kailashchand Gandhi dated 1/6/1964.

9 School Leaving Certificate issued by Head Cousin paternal aunt.

Master, Zilla Parishad Primary School, Upalwate, taluka Madha, District Solapur in favour of Surekha Motilal Gandhi

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13/7/1956.

10 School Leaving Certificate issued by Head Cousin paternal aunt.

Master, Zilla Parishad Primary School, Upalwate, taluka Madha, District Solapur in favour of Savita Motilal Gandhi 13/7/1961 11 School Leaving Certificate issued by Head Cousin uncle.

Master, Zilla Parishad Primary School, Upalwate, taluka Madha, District Solapur, in favour of Subhash Motilal Gandhi 11/6/1947 12 School Leaving Certificate issued by Head Cousin uncle.

Master, Zilla Parishad Primary School, Upalwate, taluka Madha, District Solapur, in favour of Shashank Motilal Gandhi 19/6/1958.

13 School Leaving Certificate issued by Head Great grandfather.

Master, Z.P. Primary School, Camp, taluka Karmala, District Solapur, in favour of Gautamchand Sakharam Gujjar 1/4/1889 14 Akshay Santosh Gandhi filed affidavits Self.

dated 5/9/2012 and 6/11/2012.

On the basis of the aforesaid documents produced before

the Committee, the petitioner claims that he belongs to the caste

"Gujjar" and the word "Jain" prefixing or affixing "Gujjar" is of no

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consequence and rather in some of the old documents the caste is

mentioned as "Gujjar". The State Government on 1st January, 2001

issued a Government Resolution implementing the recommendation of

Mutatkar Committee and State Backward Class Commission (Khatri

Commission) in their report of the year 1993 to 2000 which had

recommended inclusion of 226 castes into the list of other backward

classes.However, the State Government approved 46 recommendations

and issued a Resolution including the said caste in the list of other

backward classes either in the form of caste to be included for the first

time or the corresponding castes to the entries already find place in

the list of other backward class. This Government Resolution included

Entry No. 326 which introduced caste "Gujjar" for the first time in the

list of other backward classes. Entry at Sr. No.326 read as caste "दोडे

गुजर" "Dode Gujjar". The backward class commission forwarded its

recommendation to the State Government in the form of its 13 to 16 th

Report in the year 2005 and 2006 and recommended inclusion of

certain castes and exclusion of certain castes from the list of other

backward classes. The State Government in order to implement the

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recommendation of the said commission issued a Government

Resolution on 1st March, 2006 thereby including certain corresponding

castes in the list of other backward class and clubbing them with the

original caste in the list. Entry No. 326 which was added by

Government Resolution dated 1st January, 2001 came to be further

amended by inclusion of the following corresponding castes / sub-

castes, namely "Gujjar, Leva Gujjar, Reve Gujjar, Reva Gujjar,

Suryawanshi Gujjar. Thus, it is apparent that initially by virtue of

entry No.326 only caste "दोडे गुजर" "Dode Gujjar" was recognized as

other backward class in State of Maharashtra and the caste "Gujjar" is

included in the list of other backward class with effect from 1 st March,

2006. The documents on which the petitioner has placed reliance and

specifically the pre-constitutional documents namely the school

leaving certificate of his grandfather of the year 1937, his cousin

grandfather Motichand Gautamchand Gujjar of the year 1930 and

another cousin grandfather Pammulal Gautamchand Gujjar of 1930,

mentions the caste as "Gujjar (Jain)" "Jain (Gujjar)" in respect of his

real grandfather. There was and there is not any caste as Gujjar (Jain)

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or "Jain Gujjar" in the list of other backward class. The caste "Gujjar"

came to be included in the list of other backward class from 1 st March,

2006 and the corresponding caste included in the list of OBC are

"Dode Gujjar, Leva Gujjar, Reve Gujjar, Reva Gujjar and Suryawanshi

Gujjar". However, we do not find any mention of caste "Jain Gujjar" /

"Gujjar Jain". An entry in the list of SC, ST/OBC has to be read as it is

and it is settled position of law that the Presidential Notification

identifying the said SC/ST or the Notifications issued by the State

Government in relation to "other backward class" are not susceptible

of any interpretation and it is not permissible for the courts to add or

delete any of these entries.

7 The majority view of Respondent No.2 Committee in its

order dated 28th March, 2014 has specifically noted that the entry No.

326 in the list of other backward classes do not include Gujjar (Jain)

or Jain (Gujjar) as an corresponding caste or sub-caste of "Dode

(Gujjar)" The Committee has relied upon the report of the backward

classes commission which had recorded a finding that the persons

residing in District other than Dhule and Jalgaon are not entitled for

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issuance of certificate belonging to Gujjar caste and therefore the place

of residence of the applicant assumes significance. The majority view

of the committee observes that as per the documents submitted by the

applicant and the materials collected by the Vigilance Cell, the

applicant is resident of Solapur and he is not connected with Jalgaon

and Dhule districts. Further the Committee has observed that

occupation of the ancestors of the applicant were trading in

agricultural produce, whereas the persons belonging to Gujjar caste

are agriculturist. The Committee observed that all the persons

belonging to Gujjar and corresponding caste as well as sub-caste who

were residents of Dhule and Jalgaon Districts were carrying out

agriculture as their main profession. The Committee has placed

reliance on several recommendations of the backward class

commission wherein reference is found about Gujjar caste based on

which recommendation was made for its inclusion at Entry No. 326

along with "Dode Gujjar, Leva Gujjar, Reva Gujjar, Suryawanshi Gujjar"

who were all found in Jalgaon and Dhule Districts. The Committee has

also further observed that the persons belonging to any of the caste at

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entry No. 326 are connected with the other castes in the said entry and

their language is Gujrav and mother tongue is Marathi. However, the

Committee noted that the present applicant does not show any

consanguinity with Gujjar caste. On examination of the characteristic

of the applicant the Committee has noted that he did not show any

similarity with the characteristics possessed by the caste who are

placed at serial No.326. The Committee has thus concluded that the

applicant does not establish that he belongs to Gujjar caste and even if

the applicant would have been the resident of Dhule or Jalgaon

District, still he was not entitled for procuring the caste validity

certificate of Gujjar Caste and not entitled for the benefits available to

the said caste.

We are in agreement with the said findings recorded by the

Committee and the petitioner has not shown any perversity or gross

illegality in the finding recorded by the Committee. The caste of the

petitioner as reflected from the documents of his forefathers appears

to be Jain Gujjar or Gujjar Jain which do not find place in the list of

other backward class in the State of Maharashtra. In such

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circumstances, the petitioner is not entitled to avail the benefits of

belonging to Gujjar caste when the documents of his own ancestors

and that of pre-constitutional era refers that the caste was Jain

Gujjar/Gujjar Jain. The documents referring the caste as Gujjar on

which the petitioner has placed reliance are post constitutional

documents as far as one document of 1889 is concerned, the

Committee has expressed that there is some interpolation and the

word Gujjar is written in different ink and different handwriting and

has therefore disregarded the said document. It did not accept it as

conclusive proof in favour of the petitioner to establish that he belongs

to caste Gujjar (OBC). The Committee has also recorded a finding that

as far as the entry in school leaving certificate of Shri Subhash Motilal

Gandhi where the date of birth is mentioned as "11/6/1947" and the

caste is mentioned as Jain (Gujjar) who is the cousin grandfather and

another school leaving certificate of Shashikant Motilal Gandhi

reflecting the date of admission in the school as 19/6/1958 mention

the caste as Jain (Gujjar). On comparison of the said documents with

the school record, the committee has observed that the word Gujjar

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has been written in the different ink and it appears that it is written

subsequently. In any case, the said entry is not purely into Gujjar who

is recognized as other backward class.

8 It is well settled position of law that entries in the

Scheduled Castes and Scheduled Tribes Order are not open for

interpretation and the said entries have to be read as they and the

Hon'ble Apex Court in no uncertain terms has laid down the law that

the the caste/tribe entered in the Presidential Notification is not open

for interpretation by the State Government or the Courts. As far as the

other backward classes are concerned, the State Government by

issuing the Government Resolution has notified various castes to be

included in the list of other backward class on recommendation of the

backward class commission which after a detailed study of the

particular caste has recommended its inclusion or exclusion. The State

Government by issuing the Government Resolution on 1 st March, 2006

has included several corresponding caste entries at Entry No.326 of list

of OBC in State of Maharashtra namely "Dode Gujjar" and included

caste "Gujjar, Leva Gujjar, Reva Gujjar, Suryawanshi Gujjar" at entry

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No. 326. However, this did not include Jain Gujjar/Gujjar (Jain). In

the light of the law laid down by the Hon'ble Apex Court that it is not

permissible to read caste Gujjar (Jain)/ Jain(Gujjar) into the list of

other backward classes notified by the State Government nor is it

permissible for us to deduce an inference that caste Gujjar (Jain) /

Jain (Gujjar) is synonymous to Gujjar which is included at Serial No.

326. We refrain ourselves from undertaking the said exercise and

confer benefits on the petitioner though the documents are produced

by him reflect the caste as Jain (Gujjar) / Gujjar (Jain).

9 We find that there is no perversity or error of law apparent

on face of the record in the findings recorded by the Caste Scrutiny

Committee by majority view. The findings of the Committee needs to

be upheld and the writ petition filed by the petitioner deserves to be

dismissed. Same is therefore dismissed. No order as to costs.

[SMT.BHARATI H. DANGRE,J.] [S.C. DHARMADHIKARI, J.]

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