Bombay High Court
Kishor Shankarsingh ... vs Schedule Tribe Caste Certificate ... on 23 November, 2017
Bench: Prasanna B. Varale
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1714/2000
PETITIONER : Kishor Shankarsingh Bais,
aged about 36 years, Occupation - service -
Primary School Teacher at Panchayat Samiti
Tiwsa, resident of Daryapur, Tahsil
Daryapur, District - Amravati.
...V E R S U S...
RESPONDENTS :- 1. The Scheduled Tribes Caste Certificate
Scrutiny Committee, Adivasi Bhavan,
Giripeth, Nagpur, through its Member
Secretary.
2. The State of Maharashtra, through
its Secretary, Tribal Development
Department, Mantralaya, Mumbai - 32.
3. Zilla Parishad, Amravati, through its
Chief Executive Officer, Tahsil and District -
Amravati.
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Shri Ashwin Deshpande, Advocate for petitioner
Mrs. A.R. Kulkarni, AGP for respondent nos.1 and 2
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CORAM : PRASANNA B. VARALE AND
ARUN D. UPADHYE, JJ.
DATE : 23.11.2017
ORAL JUDGMENT (PER : PRASANNA B. VARALE, J.)
1. By this petition, the petitioner is challenging the order
passed by the respondent no.1 - The Scheduled Tribes Caste Certificate
Scrutiny Committee, Nagpur. It is the case of the petitioner that the
petitioner who is belonging to Scheduled Tribe Community Thakur was
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selected through a duly selection process and adopted by the Regional
Subordinate Service Selection Board and was appointed by respondent
no.3 - Zilla Parishad by order dated 28/1/1998 as primary school teacher
in the pay scale of Rs.1200-2040/-. It is submitted that the petitioner was
initially appointed at Tiwsa and was then transferred to other school at
Dhanodi and thereafter was transferred at Hingni Mirjapur. It is
submitted that in response to the communication issued by the Block
Education Officer dated 11/3/1993 the petitioner forwarded his caste
certificate along with the documents in support of his claim to the
Additional Commissioner Tribal Development Department. The petitioner
in response to the communication also appeared for the personal
interview to substantiate his claim for Thakur Scheduled Tribe. The Caste
Scrutiny Committee by order dated 7/11/1997 invalidated the caste claim
of the petitioner. Being aggrieved by the said order, the petitioner
approached this Court by filing Writ petition No.879/1998. During the
pendency of the petition, it was observed that the formality as set out in
the judgment of the Hon'ble Apex Court in the case of Madhuri Patil is not
followed, namely, calling for vigilance cell's report and furnishing a copy
thereof to the petitioner. A pursis to that effect was filed. The order of the
Scrutiny Committee was set aside and the matter was remanded back to
the Committee for fresh consideration.
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2. Shri Deshpande, the learned Counsel for the petitioner
submitted that the petitioner to substantiate his claim submitted the
documents before the Committee. The learned Counsel submitted that
these documents were included one of the most important document, i.e.,
a document of pre independence era showing the social status of the
grand-father of the petitioner as Thakur. Learned Counsel further
submitted that the father of the petitioner was illiterate person. He
submitted that the petitioner is the first generation in his family who
obtained the education. He submitted that the other family members such
as uncle, father, grand-father and great grand-father were all illiterate
persons. The learned Counsel then submitted that the petitioner
submitted all the documents supporting his claim before the Scrutiny
Committee. Learned Counsel fairly submitted that though these
documents include certain documents in respect of the uncle of the
petitioner, the grand-father of the petitioner and father of the petitioner,
the family tree of the petitioner was not placed before the Scrutiny
Committee. Learned Counsel for the petitioner placed on record the
family tree for our perusal and for consideration of the documentary
evidence submitted before the Scrutiny Committee. Learned Counsel then
submitted that the respondent no.1 - Scrutiny Committee by order dated
25/4/2000 invalidated the caste claim of the petitioner on the ground
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that the petitioner failed to substantiate his claim in affinity test. Learned
Counsel vehemently submitted that the decision of the Committee is
clearly unsustainable for the reason that the Committee could not have
arrived at that conclusion only by relying the affinity test. Learned
Counsel further submitted that in view of the judgment of this Court as
well as the Hon'ble Apex Court the affinity test is one of the criteria to
assess the claim of the candidate but the affinity test could not be a sole
criteria to assess the claim. Learned Counsel for the petitioner further
submitted that the decision of the Committee without going into the
documentary evidence and only with passing reference that the
documents are rejected, cannot throw the petitioner out of consideration.
3. Mrs. Kulkarni, the learned Assistant Government Pleader for
the respondent nos.1 and 2 opposes the petition.
4. We have gone through the material placed on record. The
order impugned in the petition of the Scrutiny Committee refers to the
documents submitted by the petitioner. These are the documents, namely,
copy of caste certificate issued by the Executive Magistrate, Daryapur,
dated 28/1/1992, copy of primary school leaving certificate of the
candidate dated 17/10/1992, copy of secondary school leaving certificate
in the name of Shamsingh Bais, dated 30/6/1990, copy of caste certificate
issued in favour of one Shamsingh Bais dated 14/2/1992, copy of caste
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certificate issued in the name of Rajesh Bais dated 20/2/1989, copy of
birth extract issued in the name of Siraj Thakur, dated 3/1/2000, copy of
sale-deed in the name of Govind Lattusingh, copy of death extract issued
in the name of candidate's father, dated 17/1/2000, copy of secondary
school leaving certificate of the candidate Harbans Bahadursingh
Amarpalsingh Thakur dated 2/2/1990, copy of primary school leaving
certificate issued in the name of Ku. Bharti Harbansingh Thakur dated
30/4/1983, copy of secondary school leaving certificate issued in the
name of Ku. Bharti Harbansingh Thakur, dated 18/5/1991, copy of caste
certificate issued in the name of Ku. Kavita Harbansingh Thakur, dated
2/10/1990, copy of caste certificate issued in the name of Ku. Bharti
Thakur, dated 21/1/1991, copy of 7/12 extract issued in the name of
Ashoksingh Thakur, copy of secondary school leaving certificate issued in
the name of Rahul Ashoksingh Bais, dated 9/6/1998 and original copy of
the affidavit sworn by the candidate dated 17/11/1997.
5. Learned Counsel for the petitioner vehemently submitted
that though the document at serial no.6 referred to as the copy of birth
extract in the name of Shivpal Thakur issued by Tahsildar, Anjangaon
dated 3/1/2000 the document is of 12/12/1927. He submitted that this
document was having a great importance and was decisive document in
favour of the petitioner as this document was of pre independence era.
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Learned Counsel for the petitioner submitted that document at serial no.7
is also a document of 6/2/1926 and the same is also of pre independence
era. Learned Counsel submitted that though the Committee refers to the
documents at serial nos.6 to 8, it only observed that on the background of
socio-cultural traits, ethnic linkage, affinity test and police vigilance
report, these documents are rejected. The learned Counsel for the
petitioner submitted that the Committee ought to have assessed the
documents independently considering the potential value of the said
documents. Learned Counsel submitted that such wholesome rejection of
the Committee on erroneous appreciation of the documents is clearly
untenable and unsustainable. Insofar as the documents referred to by the
Committee at serial nos.6 to 8 are concerned, the document at serial no.8
is a document of post independence era but the document at serial nos.6
and 7 are concerned, they are certainly the documents of
pre independence era. The document at serial no.6 which is placed on
record at Exh.24 shows that it is the copy of birth and death of Kotwal
register. The document is of the year 1927. The copy issued from the
office of Tahsildar Anjangaon is a certified copy and the endorsement of
Tahsildar is dated 3/1/2000, whereas the document is attested by the
Block Education Officer, Panchayat Samiti, Daryapur. Learned Counsel for
the petitioner was justified in submitting that the Committee treated this
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document as if a document of post independence era only on the basis of
the date 3/1/2000 which is the date on certificate of the Tahsildar. The
document is issued in the name of Shivpal. The social status, i.e., caste
shown in the document is Thakur. The another document, i.e., document
at serial no.7 is the copy of sale-deed of the year 1926. This is also a
pre independence era document in the name of Govind Ramsingh
Lattusingh Thakur. Before the Committee, the petitioner submitted that
along with claim he is submitting the documents to substantiate his claim
and these documents are related to his parental relations, such as,
grand-father, uncle, father and cousin uncle etc. While evaluating these
documents, the other documents, namely, the document at serial nos.1, 4,
5, 12 and 13 where the copies of the caste certificate issued in favour of
the petitioner, his sister, his brother and uncle etc. are looked into. The
Committee observed that these are the documents supplied for scrutiny
before the Scrutiny Committee. Then while assessing the other documents
the Committee observed that these are the documents of post
independence era and the caste recorded in these documents such as
school leaving certificate etc. is as per the information given by the
parents or guardians of the wards admitting them in the school. At the
cost of repetition, it is stated that insofar as the important documents, i.e.,
at serial nos.6 and 7 which are the documents of pre independence era,
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the Committee has just made a cursory remark and general observation
without assessing the evidentiary value of these documents so as to
decide the claim of the petitioner. Learned Counsel for the petitioner was
justified in submitting that the approach is unsustainable in view of the
judgment of the Hon'ble Apex Court. Learned Counsel was also justified
in placing heavy reliance on the judgment of this Court in the case of
Priya s/o Pravin Parate...Versus...Scheduled Tribes Caste Certificates
Scrutiny Committee, Nagpur and others, reported in 2013 (1) Mh.L.J.
180 and the judgment of the Hon'ble Apex Court in the case of
Anand....Versus...Committee for Scrutiny and Verification of Tribe
Claims and others, reported in 2011 (6) Mh.L.J. 919. In the case of
Priya s/o Pravin Parate (Supra) the Division Bench of this Court found
that though the documents were submitted before the Committee of pre
independence era the Committee failed to consider this material and the
claim was rejected. In the present case also the documents are of pre
independence era. It is nobody's case that these documents are either
fraudulent or obtained by ill-means. It would be useful to refer to the
observations of this Court in para 13 of the said judgment, which are as
under :-
"13. It is nobody's case that the aforesaid documents
are either fraudulent or fabricated one. In the report of the
vigilance cell committee, veracity and genuineness of these
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documents have not been doubted. In that view of the matter,
in view of the documents of pre-Constitution era, which
according to the judgment of the Hon'ble Apex Court have a
greater probative value, the claim of petitioners could not
have been rejected."
6. Similarly, in the judgment in the case of Anand (Supra) the
Hon'ble Apex Court set out the broad parameters while dealing with the
caste claim. Insofar as the affinity test is concerned, the Hon'ble Apex
Court by considering the various aspects was pleased to hold that the
affinity test may be used to corroborate the documentary evidence and
should not be the sole criteria to reject the claim. Learned Counsel for the
petitioner was justified in submitting that the rejection of the caste claim
of the petitioner only on the basis of alleged failure of the petitioner to
establish the affinity test without considering the documents, is
unsustainable.
7. Considering these aspects of the matter, we find that the
order impugned in the petition needs to be quashed and set aside. Hence,
we allow the writ petition. The impugned order passed by the respondent
no.1 - The Scheduled Tribes Caste Certificate Scrutiny Committee is
quashed and set aside. The matter is remanded back to the Caste Scrutiny
Committee to decide the claim of the petitioner afresh as expeditiously as
possible and not later than twelve weeks from the date of the order of this
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Court.
8. Learned Counsel for the petitioner submits that the
petitioner be permitted to submit the documents before the Caste Scrutiny
Committee which were not earlier available with the petitioner but
subsequently came to the knowledge of the petitioner and these
documents support the claim of the petitioner. The learned Counsel also
submitted that the petitioner though initially failed to submit the family
tree before the Committee, the petitioner be permitted to place the family
tree before the Committee so as to have a better appreciation of the
documents placed before the Committee in support of the claim of the
petitioner.
9. If the petitioner approaches the Scrutiny Committee with
the request of placing on record these documents, the Scrutiny Committee
may consider the request of the petitioner on merits.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
