Bombay High Court
Ku.Neha D/O Deepak Likhar vs The Schedule Tribe Certificate ... on 26 September, 2017
Bench: Shantanu S. Kemkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10423 OF 2017
Neha D/o Deepak Likhar ...Petitioner
vs.
1. The Scheduled Tribe Caste Certificate
Scrutiny Committee, Amravati
2. The Dean,
Shri Vasantrao Naik, Government Medical
College, Yavatmal, Dist. Yavatmal.
3. The Director of Medical Education and
Research ...Respondents
Mr. Ashwin Deshpande a/w. Mr. Piyush Pandey, for the Petitioner.
Mr. A.A. Kumbhakoni, Advocate General a/w. Mr. Shardul Singh,
Special Counsel and Mr. Sandeep Babar, AGP for the Respondent.
CORAM : SHANTANU KEMKAR &
G. S. KULKARNI, JJ.
DATE : SEPTEMBER 26, 2017
ORAL JUDGMENT (Per G.S. Kulkarni, J.)
. Rule. Rule made returnable forthwith. By consent of
the parties heard finally.
2. This Petition under Article 226 of the Constitution of
India challenges the order dated 2 nd September, 2017 passed by the
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Scheduled Tribe Caste Certificate Scrutiny Committee, Amravati
(for short "Scrutiny Committee") whereby the Scrutiny Committee
has invalidated the caste claim of the Petitioner belonging to
"Halba/Halbi (S.T.)" and confiscated the caste certificate of the
Petitioner dated 27th July, 2016 issued by the Executive Magistrate,
Achalpur, Dist. Amravati.
3. The case of the Petitioner is that the Petitioner validly
obtained caste certificate dated 27th July, 2016 as issued by the
Executive Magistrate, Achalpur. The Petitioner has obtained
admission on a reserved seat on the basis of her caste certificate in
the Respondent No. 2 - Medical College, so as to pursue the
M.B.B.S. course. It is not in dispute that the admission to the said
course is a provisional admission and subject to verification of the
caste certificate and a validity in that regard to be obtained by the
Petitioner from the Scrutiny Committee.
4. The Petitioner accordingly had submitted an application
through one Prerana Junior College, Science and Commerce,
Nagpur, seeking validity of the caste certificate from the Scrutiny
Committee. In support of the said application, the Petitioner
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submitted about 19 documents which according to the Petitioner
would show that the Petitioner belonged to the "Halba/Halbi (S.T.)".
The particulars of the documents are set out in paragraph 6 of the
Petition as also in paragraph 2 of the impugned order passed by
the Scrutiny Committee. The Scrutiny Committee invited a
Vigilance report, which was placed on record of the Committee. The
said report is dated 24th August, 2017.
5. The Petitioner interalia relied on the following pre
constitution documents :
(9) Birth Certificate of Ganpat Halbi ( great grandfather)
dated 26/04/1920-Male child born to Ganpat Halbi.
(10) Birth Extract of Ganpat Halbi ( great grandfather)
dated 27/04/1920- Male child born to Ganpat Halbi.
6. Apart from the said pre constitution documents, there
are several other documents which are of the years 1950 to 2016.
We do not refer to the details of these documents, suffice it to
observe that it is not in dispute that all these documents were on
the record of the Scrutiny Committee for its due consideration. The
Petitioner had also supported her caste claim by placing on the
record before the Scrutiny Committee, a 'caste validity certificate',
granted to the Petitioner's cousin sister named 'Krutika Pandurang
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Likhar' granted by the Scrutiny Committee on 29 th January, 2016.
A copy of which is placed on record at (Annex- P-10), page 76 of the
paper book.
7. The Scrutiny Committee considering these documents
as also the Vigilance report did not accept the claim of the
Petitioner, principally on the ground that there were pre
constitution documents concerning the petitioner's great
grandfather showing the caste entry as "Halbi", however there
exists a "Halbi" caste of a similar nomenclature which is a "Special
Backward Class" of "Koshti" community. The Scrutiny Committee
while answering Issue No. 1 observed that on the basis of these
documents, it cannot be said that the Petitioner belonged to the
"Halbi- (S.T.)". Another reason which the Scrutiny Committee
recorded to so conclude was that some of the blood relatives of the
Petitioner were found to be belonging to the "Koshti" caste. In this
regard, a purported reference has been made to "Koshti" caste
entries as obtained by the Vigilance Officer in respect of the
Petitioner's great grandfather and grandfather. In this regard the
following two documents are referred by the Scrutiny Committee:-
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Sr. Nature of Name Caste Date of Relation with
No. Documents recorded admission/ the applicant
as Birth/Death
1 An extract of death Ganpat Koshti 1930 Great
Laxman grandfather
2 An extract of birth Shankar Koshti 1948 Grandfather
Ganpat
The Scrutiny Committee observes that these two pre constitution
documents are having a probative value and therefore the
documents of the year 1920 (supra) as placed on record on behalf
of the Petitioner would not establish the claim of the Petitioner as
belonging to "Halbi- (S.T.)". It is further observed that the Petitioner
has also failed to establish her caste claim as could be gathered
from the Vigilance Inquiry and also the affinity test as discussed in
the answer to the Issue No. 2. It is basically for these reasons, the
Scrutiny Committee concluded that the caste certificate issued to
the Petitioner is found to be false and rejected to grant validity to
the Petitioner's caste certificate.
8. The learned counsel for the Petitioner in assailing the
impugned order submits that the Scrutiny Committee has
misguided itself in passing the impugned order. It is submitted that
the two pre constitution documents of the year 1920 i.e. birth
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certificate and the birth extract pertaining to great grandfather of
the Petitioner could not have been discarded by the Scrutiny
Committee. It is submitted that in the impugned order there is no
discussion about these documents, much less on the evidentiary
weightage these documents would have. It is submitted that only
on the ground that Vigilance report refers to two subsequent
documents, the Scrutiny Committee has rejected the claim of the
Petitioner. It is submitted that even the Vigilance Officer in its
report has not disbelieved the two pre constitution documents of
the year 1920 (supra) which are referred at Sr. Nos. 9 and 10 in
paragraph two of the impugned order. On behalf of the petitioner
our attention has been drawn to the Vigilance Officer's report
which records that the Vigilance Officer had visited the record
department in the office of the Nagar Parishad, Achalpur, Dist.
Amravati, from where it is stated to be revealed, from the death
register, that the great grandfather of the Petitioner named Ganpat
Laxman died in the year 1930 and to the birth extract to the
grandfather of the Petitioner Shankar Ganpat a female child was
born in the year 1948, both these documents indicating the caste
as "Koshti". This is stated to be revealed from the birth and death
extracts from the police station register in the office of District
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Collector, Amravati. The case of the Petitioner in regard to these
death and birth extracts obtained from the police station register is
that the said persons are not the relatives of the Petitioner as seen
from the family tree despite which the Vigilance report without
verification records these two persons to be relatives of the
Petitioner. In the reply to the show cause notice the petitioner
denied these documents as also stated that these two persons are
not related to the Petitioner. It is submitted that however these two
documents as referred in the vigilance report cannot bring about a
situation that the 1920 documents (supra) are required to be
disbelieved when proved. It is submitted that although the case of
the petitioner is that these documents do not pertain to the
Petitioner, the documents of the year 1930 and 1948 as referred by
the Vigilance are required to be considered as stray or isolated
entries. It is also submitted that the Petitioner has already
produced on record several documents which would go to show
that the petitioner belong to the "Halbi (S.T.)" which include the
pre-constitution documents of the year 1920 and in view of these
documents, the documents in the Vigilance report cannot be relied
upon, to negative the Petitioner's claim. It is further submitted that
the cousin sister of the Petitioner Krutika Pandurang Likhar was
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granted validity certificate as belonging to "Halbi (S.T.)" community,
as directed by the order passed by the Division Bench at Nagpur in
the case of Kum. Krutika d/o. Pandurang Likhar vs. The Scheduled
Tribes Caste Certificate Scrutiny Committee and Another in Writ
Petition No.2591 OF 2005 dated 14th December, 2015. It is
submitted that these very documents on the basis of which the
Petitioner has supported her caste claim, had fell for consideration
of the Scrutiny Committee and this Court, and that this Court not
only issued a direction to the Scrutiny Committee to issue a caste
validity certificate but also granted a declaration that the
Petitioner's sister Krutika belongs to "Halbi (S.T.)". It is thus
submitted that the entire approach of the Scrutiny Committee is
arbitrary in discarding the 1920 pre constitution documents
(supra), as also to discard the proceedings in which a validity
certificate was granted to the Petitioner's cousin sister in
pursuance of the order dated 14th December, 2015 passed by this
Court in Writ Petition No. 2591 of 2005. It is thus submitted that
impugned order deserves to be quashed and set aside.
9. On the other hand, the learned counsel for the
Respondent submits that the impugned order is legal and valid and
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would not call for any interference, in as much as the Scrutiny
Committee has rightly rejected the claim of the Petitioner on the
ground of the two documents of the year 1930 and 1948 (supra) as
referred in para 5 of the impugned order which showed the caste of
the great grandfather and that of the grandfather as "Koshti". It is
submitted that in view of these two documents the Scrutiny
Committee is justified not referring to the 1920 pre constitution
documents as relied by the Petitioner. It is submitted that the
impugned order is thus required to be sustained in view of the said
new material as placed on record under the Vigilance report. It is
then submitted that the order dated 14th December, 2015 passed by
this Court in Writ Petition No. 2591 of 2005 would also not assist
the Petitioner in as much as different material is now revealed in
the Vigilance report in the present case. It is therefore, submitted
that this Petition needs to be dismissed.
10. We have heard learned counsel for the parties. We have
also perused the impugned order as also the Vigilance report as
placed on record, the genealogy of the Petitioner's family and the
order passed by this Court on 14th December, 2015 in Writ Petition
No. 2591 of 2005 (supra).
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11. At the outset, we may observe that the crucial test for
the Scrutiny Committee to decide the caste claim of the Petitioner
surely fell on the two pre constitution documents dated 26 th April,
1920 and 27th April, 1920 as referred above. What we find from the
reasons as recorded by the Scrutiny Committee, in answering the
issue No. 1 is that the Scrutiny Committee has completely
discarded these documents, only for the reason that the Vigilance
report refers to the two new documents as referred above of the
year 1930 and 1948 which shows the caste of the great grandfather
and the grandfather of the Petitioner as "Koshti". However, a careful
reading of the impugned order reveals that there is no finding
much less any cogent reason to discard the documents dated 26 th
April, 1920 and 27th April, 1920 as relied by the Petitioner. It
cannot be disputed that these documents had high probative value,
being pre constitution documents. It is significant that the
Vigilance Officer also has not disbelieved these documents and in
fact in the report as placed before the Scrutiny Committee has
confirmed the said documents as genuine documents as relied
upon by the Petitioner. There is no material on the record of the
Scrutiny Committee by which one can reach an unequivocal
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conclusion that the said two documents of the year 1920 as relied
by the Petitioner cannot be taken into consideration and were thus
required to be discarded. In the absence of any such material and a
finding to that effect, it is difficult to accept a conclusion as
recorded by the Scrutiny Committee, to discard the documents of
the year 1920, only on the basis of two stray documents referred in
the Vigilance report. It is further significant that in the reply filed
to the show cause notice issued on the basis of the Vigilance
report, the Petitioner has categorically stated that these documents
referred by the Vigilance Officer of the year 1930 and 1948 do not
pertain to the persons who are relatives of the Petitioner and in
that regard attention of the Scrutiny Committee was drawn to the
genealogy. There is no material on the record of the Scrutiny
Committee to junk this plea of the petitioner, as also there is no
discussion in that regard in the impugned order. Thus, in our
opinion these facts and circumstances revealed a clear situation
before the Scrutiny Committee, that there was no contra material
to discard the two pre constitution documents of the year 1920 and
as a matter of fact the existence of these documents and
applicability of the same to the Petitioner stood affirmed in the
Vigilance report. Thus the only conclusion which can be drawn is
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that these documents, having high probative value conclusively
assisted the Petitioner to establish the claim of the Petitioner
belonging to the "Halbi (S.T.)" caste.
13. In our opinion the Scrutiny Committee misdirected itself
on the premise of some new stray/isolated material revealed in the
vigilance report which in the first place was disputed by the
petitioner and secondly could not be proved to be of any relevance
to the petitioner. In this situation such material certainly could
not have been relied upon by the Scrutiny Committee to discard
the pre constitution documents which stood proved and which were
supporting the claim of the Petitioner that the Petitioner belongs to
"Halba(S.T.)" caste. In this context learned counsel for the
Petitioner would be right in relying on the decision of the Division
Bench of this Court in the case of Priya s/o. Pravin Parate vs.
Scheduled Tribes Caste Certificates Scrutiny Committee,
Nagpur and Others, 2013(1) Mh.L.J. wherein Mr. Justice B.R.
Gavai speaking for the Bench observed thus :
"Merely because some stray entries as "Koshti" are
recorded in respect of caste of some of the relative of
Petitioners from their paternal side; the voluminous
documentary evidence of pre constitution era which
clearly certify the Petitioners great grandfather and
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his brothers to be Halbi, could not have been lightly
brushed aside by the Scrutiny Committee".
In so observing the Division Bench has referred to the decision of
the Supreme Court in the case of Anand vs. Committee for
Scrutiny and Verification of Tribe Claims and Others, reported
in 2011 (6) Mh.L.J. 919. The Court in in para 10 and 11 of the
said order observe thus:
10. From the aforesaid authority, it would reveal that
persons belonging to Halba Tribe had migrated to west and
taken service taken service under the Gond Kings of Chanda.
It can also be seen that some of them had taken to weaving
and had amalgamated with the Koshti caste in Bhandara and
Berar. Merely because some stray entries as "Koshti" are
recorded in respect of caste of some of the relative of
petitioners from their paternal side; the voluminous
documentary evidence of pre-Constitution era which clearly
certify the petitioners great-grand father and his brothers to
be Halbi, could not have been lightly brushed aside by the
Scrutiny Committee. As discussed herein above, the Hon'ble
Apex Court in case of Anand (supra), found that the pre-
Independence documents have a greater probative value and
they should be given due consideration while considering the
claim of a tribal.
11. As already discussed herein above, merely because it
was found that the petitioners forefathers were involved in the
profession of weaving, could not have been a ground to reject
their tribal claim, particularly in view of the observations
contained in the Amravati District Gazetteer, so also in the
authority of R.V. Russell, cited above. (emphasis supplied)
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14. Apart from the above clear position in regard to two pre
constitution documents, in our opinion the Scrutiny Committee
could not have overlooked that the caste validity certificate was
issued to the cousin sister of the petitioner Krutika, in view of the
declaration as granted by the Division Bench of this court in Writ
Petition No. 2591 of 2005 in its order dated 14 th December, 2015.
The Division Bench considering the claim as made by Krutika,
which was also on the documents and genealogy as relied upon by
the Petitioner, thought it appropriate to set aside the order passed
by the Scrutiny Committee and grant validity to the caste
certificate of Krutika. In our opinion, all these facts and
circumstances completely support the case of the Petitioner to
succeed in her claim before the Scrutiny Committee.
15. Resultantly, with certitude we are of the opinion that
the Petition deserves to succeed. We accordingly set aside the
impugned order dated 2nd September, 2017 passed by the Scrutiny
Committee and direct the Scrutiny Committee to forthwith, issue to
the Petitioner a caste validity certificate, of the Petitioner belonging
to the "Halbi (S.T.)", on receipt of an authenticated copy of this
order.
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16. The Petition is allowed in the above terms.
17. No order as to costs.
(G.S. KULKARNI, J.) (SHANTANU KEMKAR, J.)
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