Bombay High Court
Organization For Rights Of Tribal ... vs Prashant Pandit Shelake on 25 September, 2017
Bench: Shantanu S. Kemkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 10304 OF 2017
Prashant Pandit Shelke ...Petitioner
Versus
1.State Of Maharashtra , Through Its
Secretary , Tribal Development Dept.
2. Scheduled Tribe Certificate Scrutiny
Committee, Aurangabad Division through its
Member Secretary
3. Directorate of Medical Education and
Research and Competent Authority, State
CET Cell, Maharashtra State.
4. Commissioner and Competent Authority
State Common Entrance Test Cell.
5. Topiwala National Medical College, through
its Dean.And Ors. ...Respondents
with
Civil Application No.2230 of 2017
---
Mr R.K. Mendadkar a/w Mr Bhangoji with Mr.Pratap Jadhavar, for the
Petitioner.
Mr A.A. Kumbhakoni, Advocate General a/w Mr.Ashutosh Gavnekar,
Special Counsel and Mr.Sandeep Babar, AGP for the State-Respondent.
----
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CORAM : SHANTANU S. KEMKAR &
G. S. KULKARNI, JJ.
DATE : SEPTEMBER 25, 2017
ORAL JUDGMENT: (Per G.S.Kulkarni, J.)
1. This petition under Article 226 of the Constitution of India
challenges the order dated 2 September 2017 passed by respondent no.2 -
Scheduled Tribe Certificate Scrutiny Committee (for short 'the Scrutiny
Committee'), Aurangabad Bench whereby the Scrutiny Committee has
invalidated the caste certificate of the petitioner as belonging to 'Koli
Mahadev' Scheduled tribe falling under the Constitution (Scheduled
Tribes) Order,1950.
2. The case of the petitioner is that by birth he belongs to 'Koli
Mahadev' Scheduled tribe. A caste certificate dated 28 July 2008 to that
effect was granted to the petitioner by the competent authority. As the
petitioner was aspirant to pursue higher education in the field of
medicine, the petitioner had approached the Scrutiny Committee seeking
validity of the caste certificate. The application for a validity certificate
was made by the petitioner on 13 December 2010 through his Junior
College which was supported by various documents which included caste
validity certificate granted to his father - Pandit Shamrao Shelke. The
petitioner had appeared for NEET 2017 examination. During the
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verification of the documents, the competent authority for admission to
the medical course directed the petitioner to file affidavit-cum-
undertaking in regard to the caste claim of the petitioner as the
proceedings for verification of his caste certificate was pending before
respondent no.2-Committee. This affidavit was filed, and the petitioner
was granted medical admission in respondent no.5 - Topiwala National
Medical College. In pursuance of the orders passed by this Court
(Aurangabad Bench) in Writ Petition No.8851 of 2017, provisional
admission was granted to the students whose caste certificates were
pending for validation before the scrutiny committee. The said order of
this Court was being challenged before the Supreme Court in SLP
NO.20210-20224/2017. By an order dated 18 August 2017, the Supreme
Court directed all the caste scrutiny committees who were seised of the
matters of the students seeking admission to the medical course to dispose
of the proceedings. On 30 August 2017 the caste scrutiny committee
issued a notice to the petitioner to remain present for hearing on 31
August 2017. The petitioner appeared for hearing and ultimately by the
impugned order the caste certificate of the petitioner was invalidated. In
assailing the impugned order, the learned Counsel for the petitioner has
made the following submissions:-
(a) It is submitted that the scrutiny committee has discarded a vital
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document namely the caste validity certificate which was granted to the
petitioner's father - Pandit Shamrao Shelke.
(b) It is submitted that the certificate of validity was granted to the
petitioner's father after following a proper procedure namely after a
vigilance inquiry being conducted.
(c) It is submitted that there was no material to show that the
petitioner's father had obtained validity certificate by practising any fraud
or by misrepresentation or that the scrutiny committee had no jurisdiction.
(d) It is submitted that there are several documents to show that the
relatives of the petitioner belong to 'Koli Mahadev' or 'Mahadev Koli' and
therefore, considering the decision of this Court in "Prakash Subhash
Bhoplle Vs. Deputy Collector & Ors."1, the Committee could not have
reached to a conclusion that the petitioner did not belong to scheduled
tribe 'Koli Mahadev'.
(e) It is submitted that the observations in regard to the place of
residence of the petitioner being Taluka Bhokardan, District Jalana, that it
is not the place of origin from where a 'Koli Mahadev' Scheduled tribe
would find his roots, so as to grant the benefit of a caste certificate
belonging to scheduled tribe, are erroneous inasmuch as the area
restriction are no more relevant in view of Central Act No.108 of 1976.
1 2015(6) Bom.C.R.554
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3. On the other hand, the learned Advocate General would
submit that the order passed by the caste scrutiny committee calls for no
interference, as the scrutiny committee has taken into consideration all
the documents as presented on behalf of the petitioner as also has applied
the correct principles of law to conclude that the caste validity certificate
granted in favour of the petitioner's father cannot be accepted. It is
submitted that the scrutiny committee has rightly observed that the place
of residence of the petitioner is an area where the traditionally 'Mahadev
Kolis' have no roots. The committee would thus be correct in its
observation that the petitioner having failed to produce any documents to
show that his linkage to the area where the root of the 'Mahadev Koli' or
'Koli Mahadev', tribe is found, the caste certificate of the petitioner cannot
be granted a validity. In support of the submission, learned Advocate
General placed reliance on the decisions of this Court in (i) "Muktai d/o.
Gulab Deoraj Vs. 1.Scheduled Tribe Certificate, Scrutiny Committee & Anr. 2,
dated 6 December 2010; (ii) Dattu s/o. Namdev Thakur Vs. State of
Maharashtra & Ors3; (iii) the decision of Full Bench Bench of this Court in
"Yogita d/o. Anil Sonawane Vs. State of Maharashtra(supra).
4. We have heard the learned Counsel for the parties. With their
2 Writ Petition no.8776 of 2010, decided on 6 December 2010
3 (2010)2 Mh.L.J. 494
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assistance we have perused the impugned order as also the documents
placed on record.
5. It is not in dispute that the petitioner's father - Pandit
Shamrao Shelke approached the caste scrutiny committee in the year
2007 seeking validity of the caste certificate issued to him belonging to
the scheduled tribe 'Koli Mahadev'. It is also not in dispute that the said
caste scrutiny committee had invited a vigilance report and pertinently all
the details including the details of residence as furnished in the said
application which are similar to that of the petitioner were considered.
Perusal of the vigilance report in relation to the proceedings relating to the
validity certificate granted to the petitioner's father shows that the
vigilance officer had listed the names of about eight relatives from the
paternal side of the petitioner's father, all relatives were shown to belong
to the 'Koli Mahadeo' / 'Mahadev Koli' tribe. The documents in regard to
them pertain to the period between 1968 to 2006. A list of which has
been annexed to the vigilance report and which can be found at page 77
of the paper book. The scrutiny committee in the case of the petitioner's
father considered all these documents and a caste validity certificate came
to be granted to the petitioner's father that he belongs to 'Koli Mahadev'
Scheduled tribe. The only observation as can be found in the impugned
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order to discard the validity certificate granted to the petitioner's father
was on a reasoning that there were contradictory entries in the documents
considered by the vigilance cell, in the validity caste certificate
proceedings of the petitioner's father, namely that the entries were of
Mahadev Koli, M.Koli, Hindu Mahadev Koli, Hindu Koli Mahadev and
therefore, though the validity was granted in favour of the petitioner's
father, the same cannot be considered. This reasoning has been set out in
answering issue no.3 as framed by the committee namely as to whether
the validity certificate granted to the petitioner's father can be considered
to grant a validity of the petitioner's caste certificate. We cannot accept
the reasoning of the committee. This is for two fold reasons. Firstly that it
appears that the scrutiny committee appropriately considered that there
was no inconsistency in all these documents which were considered by the
said caste scrutiny committee wherein the nomenclature 'Mahadev Koli'
or 'Koli Mahadev' was borne by the documents so considered. The
nomenclature as indicated in the documents was not simplicitor 'Koli'. We
are not shown any material which would persuade us to conclude that the
validity certificate which has been granted to the petitioner's father was
granted on any fraud being played or the committee having acted without
jurisdiction or that the conclusion which has arrived at by the said scrutiny
committee was based on such material that no reasonable body could
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reach such conclusion. We observe this as we have gone through the
report of the vigilance cell in the proceedings pertaining to the petitioner's
father caste certificate, and a caste validity certificate having being
granted to the petitioner's father. We therefore see no reason as to why
the committee should discard the said validity certificate granted to the
petitioner's father and that too observing that the castes as
interchangeably used as 'Koli Mahadev' or 'Mahadev Koli', on the different
documents placed before the said caste scrutiny committee. In any case,
the caste scrutiny committee if was to be of the opinion that there is some
contradiction in some entries, then there ought to have been some
discussion in that regard in the impugned order. In our opinion, there
cannot be any contradiction in such interchanging. Law in this regard is
well considered in the decision of the Division Bench of this court
"Prakash Subhash Bhople Vs. Deputy Collector & Ors.(supra), wherein the
Court held as under:-
"6. There is a littlle doubt that 'Koli Mahadev' are referred as
'Mahadev Koli' and for years together certificates were issued by
the competent authorities in favour of persons belonging to the
tribal community certifying their tribe as 'Mahadev Koli' and that
such certificates have been validated by the Scrutiny Committees
without raising the issue.
... ... ...
15. Further, in view of the judgment of the Supreme Court in
the matter of State of Maharashtra Vs. Milind and others (Supra),
referred to above, it will have to be concluded that although the
Scrutiny Committee has referred to the discrepancy appeared in
recording description of the tribe in the certificates issued by the
competent authorities, in past, thousands of certificates have been
issued and the Scrutiny Committee has also validated such
certificates referring to the tribe at Sr.No.29, in Scheduled Tribes
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Order,1950, as 'Mahadev Koli'. In the judgment of Madhuri Patil,
reference to the tribe, admittedly, is as 'Mahadev Koli'. It is not a
matter of dispute that in past tribe certificates have been issued
referring to the tribe as 'Mahadev Koli' and those certificates have
been validated by the Scrutiny Committees after observing the
procedure prescribed in the matter of Madhuri Patil as well as
Maharashtra Scheduled Castes, Scheduled Tribes, Denotified
Tribes (Vimukta Jatis), Namadic Tribes, Other Backward Classes
and Special Backward Category (Regulation of Issuance and
Verification of) Caste Certificate Act (23 of 2001). The caste
certificates and tribe certificates issued in past, after observing
due procedure and in case of issuance of validity certificates, after
holding vigilance cell inquiry as well as on consideration of
affinity test, such certificates and validity certificates shall have to
be treated as having been validly issued and shall be treated valid
for all practicable purposes."
6. In regard to area restriction, we may refer to the decision of
the Supreme Court in the case "Kumari Madhuri Patil & Anr. Vs. Additional
Commissioner, Tribal Development and Ors."4 where the Supreme Court has
observed that by the Amendment Act of 1976, the area restrictions have
been removed. A Division Bench of this Court in its decision in Writ
Petition No.1316 of 1994 decided on 28 January 2003, speaking through
Hon'ble Mr. Justice R.M.Lodha (as His Lordship then was) referring to the
decision in "Madhuri Patil" (supra) made the following observations:-
"4. In Kumari Madhuri Patil and another Vs. Additional
Commissioner, Tribal Development and others, (1994)6 SCC 241,
the Supreme Court, with reference to the Amending Act,1976
observed that by 1976 Amendment, there was no substantial
change except removing area restriction. The Division Bench of
this Court in Writ Petition No.3709 of 1998, Shri.Dipak Krishna
Sable Vs. State of Maharashtra & Ors. observed thus:
"2 Invalidation of petitioner's tribe claim as belonging
to Scheduled Tribe Mahadev Koli, is impugned in the
present petition. The only ground set up for invalidating
4 (1994)6 SCC 241
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the caste certificate is that the place of residence of the
petitioner being outside the Scheduled Area, the
Respondent No.2 Magistrate is not competent to issue
caste certificate. The ground assigned can no longer be
justified in view of the provisions of the Amending Act,108
of 1976, which has removed the area restriction w.e.f. 27 th
July,1977. In view of the aforesaid Amending Act, all
Tribals whether residing in or outside the Scheduled Area
are entitled for concessions privileges conferred on
Scheduled Tribes. Moreover, there is no nexus between
Scheduled Area as appearing in Article 244 of the
Constitution and Scheduled Tribes as appearing in Article
342 of the Constitution."
5. We find from the impugned order that the caste scrutiny
Committee observed that the certificate has been issued by the
Executive Magistrate of the area where the claimant is ordinarily
resident, the place of such residence being outside the Scheduled
Areas set out in the Constitutional Order No.9 of 26.01.1950 (Part
"A" States) and the C.O. No.26 of 07.12.1950 (Part "B" States)
and, therefore, in the result the caste certificate of the applicant
was held to be invalid. The observations made, thus, by the
committee in the impugned order with regard to area restriction
are not justified and not in accord with the legal position. The
matter, thus, requires reconsideration and in view thereof, we do
not intend to deal with the matter further lest it may prejudice the
consideration of the matter objectively by the Scrutiny
Committee."
7. In the decision of the Division Bench of this Court in "Dinesh
Ramesh Thakur Vs. The State of Maharashtra & Ors."5 this Court referring
to the decision of the Full Bench of this court in "Shilpa Vishnu Thakur Vs.
State of Maharashtra & Ors."6 held that the scrutiny committee is not
prohibited from applying the place of residence 'as one of the factors' to be
considered in arriving at a decision for the validation of the claim of the
claimant. These observations are also affirmed by the Full Bench of this
Court in "Yogita d/o. Anil Sonawane Vs. State of Maharashtra"(supra)
5 Writ Petition No.9627 of 2011 decided on 28 March 2012
6 2009(5) AIR Bom (R) 478
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8. Thus, there can be no quarrel on the proposition that the
place of residence being one of the factors to be considered by the caste
scrutiny committee, when there is no other conclusive document to
support the caste claim by the claimant. However, in the present case, we
do not find that there are any cogent and acceptable reasons to discard
the validity certificate which has been granted to the father of the
petitioner. It is not the case of the respondent that the validity certificate
has been granted by the caste scrutiny committee to the petitioner's father
ignoring the documentary evidence so as to render the decision irrational
or for that matter it has been granted by practising fraud.
9. In regard to the area restriction, it can be thus concluded that
as the affinity test is one of the requirement, then, in the absence of any
perversity on the part of the scrutiny committee in granting validity
certificate to the petitioner's father, the petitioner, would be correct in
contending that to defeat the claim of the petitioner on the ground of area
restriction was not an acceptable exercise on the part of the committee.
10. In the above circumstances, the petition is required to be
allowed. The impugned order dated 2 September 2017 passed by
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respondent no.2 - Caste Scrutiny Committee is quashed and set aside. The
Caste Scrutiny Committee is directed forthwith grant to the petitioner a
caste validity certificate that the petitioner belonging to "Koli Mahadev"
scheduled tribe, on receipt of the authenticated copy of this order.
11. The petition is accordingly allowed. No costs.
12. As the petition is disposed of as aforesaid, the pending civil
application does not survive. It is accordingly disposed of.
(G. S. KULKARNI, J.) (SHANTANU KEMKAR, J.)
