Parag Vishwasrao Padolse vs The State Of Maharashtra And ...
2021 Latest Caselaw 868 Bom

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

                       WRIT PETITION NO.10965 OF 2019

 Parag Vishwasrao Padolse                                          PETITIONER
 Age - 19 years, Occ - Education,
 R/o Talegaon, Taluka - Jamner
 District - Jalgaon

          VERSUS

 1.       The State of Maharashtra                            RESPONDENTS
          Through the Secretary,
          Social Welfare Department,
          Mantralaya, Mumbai-32

 2.   The Scheduled Tribe Certificate
      Scrutiny Committee, Nandurbar
      Through its Member Secretary
                              .......

Mr. Balaji S. Shinde, Advocate for the petitioner Ms. G. L. Deshpande, AGP for respondent - State .......

[CORAM : SUNIL P. DESHMUKH AND ABHAY AHUJA, JJ.]

DATE : 14th JANUARY, 2021

ORAL JUDGMENT (PER SUNIL P. DESHMUKH, J.) :

1. Rule. Rule made returnable forthwith and heard learned

advocates for the parties finally by consent.

2. The petition is moved challenging decision of respondent

No. 2 - scheduled tribe certificate scrutiny committee,

Nandurbar dated 18th July 2019, invalidating petitioner's claim to

be belonging to "Tokare Koli", scheduled tribe, pursuant to tribe

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certificate dated 24th November, 2017 issued in his favour and

further directing to take action according to provisions of the

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified

Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes

and Special Backward Category (Regulation of Issuance and

Verification of) Caste Certificate Act, 2000.

3. Mr. Balaji Shinde, learned advocate appearing on behalf of

the petitioner vehemently contends that despite three validity

certificates of Rahul, Snehal and Manish, the close paternal

relatives of the petitioner been issued by the committee, claim of

the petitioner of being "Tokare Koli" scheduled tribe has been

declined. On this occasion committee has considered that

records of the relatives do not support claim of being "Tokare

Koli", having regard to certain documents, wherein reference to

them is to be Koli, Hindu Koli, Suryawanshi Koli etc.

4. He submits that these very documents had fallen for

consideration in the cases of Rahulji, Snehal and Manish and

were also appreciated by this court in its judgment and order

dated 12th December, 2012 in writ petitions No. 8789 of 2010

and 9027 of 2010.

Learned advocate draws our attention to observations of

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division bench deciding aforesaid writ petitions in paragraphs No.

10 and 11, reading, thus,

"10. We have perused the report of vigilance cell so also the explanation tendered by father of petitioners in respect of evidence collected by Vigilance Cell pertaining to close relatives of petitioners in the form of school record wherein entry has been recorded in respect of their caste as 'Hindu Koli'. We have also perused the original record and documents produced by father of petitioners before the Scrutiny Committee in the matter of validation of his tribe claim. The father of petitioners had disclosed so called adverse entries appearing in his school record as well as school record of his near relations wherein entry in respect of caste is recorded as 'Hindu Koli' or 'Koli'. At the relevant time, father of petitioners had also tendered explanation in respect of entries in his school record indicating caste as 'Hindu Koli' or 'Koli'. The explanation tendered by father of petitioners was accepted by the Committee. The father of petitioners, while determination of his claim for issuance of validity certificate, had caused appearance before the Committee and deposed about traits and characteristics of the tribe. The Committee was satisfied in respect of truthfulness of claim of father of petitioners and after conducting home inquiry and field inquiry and on consideration of explanation tendered by father of petitioners, the Committee came to the conclusion that father of petitioners has established affinity to "Tokare Koli", Scheduled Tribe. The explanation tendered by father of petitioners justifying the reasons as to how entries in respect of caste in his school record as well as record of his near relations have been made as "Hindu Koli" or 'Koli' (E.MA) while admitting their names in the primary school, was accepted b y the Committee. The Committee has specifically observed in the judgment that the reasons adduced by the appellant

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are convincing. The Committee, therefore, proceeded to issue validity certificate in favour of father of petitioners. While issuing validity certificate in favour of father of petitioners, the Committee had called for report of Vigilance Cell and the Vigilance Cell after conducting home and field inquiry, tendered a detailed report indicating therein that the traits and characteristics observed by father of petitioners, including surnames of his relatives, are akin to the traits and characteristics of Tokare Koli, Scheduled Tribe.

11. Once the Committee, while determining tribe claim of father of petitioners, on consideration of report of Vigilance Cell which was prepared after conducting home and field inquiry, recorded a finding that he (father of petitioners) had passed the affinity test and has established his linkage to the ethnic tribe, there is absolutely no reason to record a contrary finding in that regard. The material, on which reliance is placed by the Committee, while considering claim of petitioners, was also before the Committee, while the Committee had considered claim of father of petitioners. There is absolutely no reason to arrive at a contradictory finding based on the same set of evidence which was available with the Scrutiny Committee while tribe claim of father of petitioners was determined. It is to be noted that the reasons recorded by Scrutiny Committee, while answering the issue as to whether claim of petitioners sustain by way of affinity test, is totally unacceptable in view of the contrary findings recorded by same Committee on the basis of same set of evidence while determining tribe claim of father of petitioners."

5. He submits that when relationship is not disputed and

there are validity holders from the genealogy who are closely

related to petitioner, negation of the petitioner's claim is

improper. He submits that in such a scenario even though it is

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being referred to that validity of father of Rahul, Snehal and

Manish is being questioned, in the face of situation that there is

a decision by high court and that it being endorsed by the

Supreme Court, the situation about their validity is unlikely to be

changed. He submits that when the record, which has weighed

with the committee, while verifying claim of the petitioner, has

already fallen for consideration of the high court and the high

court had directed to issue validity to the claimants, approach of

the scrutiny committee in the case of petitioner has been

without any reflection on that there is decision by high court in

aforesaid two writ petitions in respect of aforesaid paternal

relations of the petitioners. He further purports to support his

submissions with reference to judgment and order in the case of

"Apoorva Vinay Nichale V/s Divisional Caste Certificate Scrutiny Committee

No.1 and Others" reported in 2010 (6) Mh.L.J. 401 and an order passed

by this court in writ petition No. 8277 of 2020 in the case of

"Prachi d/o Gokul Thakur V/s The State of Maharashtra and Another" dated

18th December, 2020,

6. Learned AGP Ms. G. L. Deshpande contends that

documents referred to by the scrutiny committee, during

vigilance, show that those do not support claim of the petitioner

of being "Tokare Koli", those are in respect of elder relatives like

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uncle, grand father and great grand father and having regard to

the same, no fault can be found with the decision by the

committee, especially, when validity given to Ramchandraji,

referred to by the petitioner is being reconsidered. Besides

petitioner could not establish ethnic linkage.

7. Although this is being so submitted, fact remains that

relationship of petitioner with the validity holders has not been

disputed nor genealogy has been in dispute.

8. It would have to be considered that there is no denial of

the factual position that as on the date, committee has not

invalidated certificates issued to petitioner's aforesaid relatives,

albeit, it has been referred to that matter is under investigation

and much progress has been made.

9. In the circumstances, it would be appropriate that we

follow the course charted by various decision of division bench

viz., writ petition No. 5641 of 2020 (Kum. Maseera Parvin d/o Mohd.

Asfaque Shaikh and Another V/s the State of Maharashtra and Others ), writ

petition No. 9056 of 2019 (Ganesh s/o Sudhakar Bodhgire V/s The State of

Maharashtra) dated 21st August, 2019, and a judgment of the

Supreme Court in the case of "Raju Ramsing Vasave V/s Mahesh Deorao

Bhivapurkar and Others" reported in (2008) 9 SCC 54.

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10. It has been referred to that if proceedings for cancellation

of caste validity holders are answered against such certificate

holders, it would be open for the committee to issue show cause

notice to petitioner, as to why validity certificate granted to him

should not be cancelled and keeping it open for the committee to

take those proceedings to its logical end. The decisions even

refer to that certificate issued to the petitioner, would be subject

to outcome of proceedings for cancellation of validity issued in

favour of his blood relatives.

11. It is further to be noted that the courts have time and

again considered to that ethnic linkage is not a litmus test and

would hardly be determinative. A decision of the Supreme Court

in the case of "Anand V/s The Committee for Scrutiny Verification and

Others" reported in (2012) 1 SCC 113, may be taken into account for

said purpose.

12. Having regard to decisions, facts and circumstances and

forgoing discussion, it appears to be expedient to set aside the

impugned order and direct issuance of validity certificate to

petitioner, subject to decision in re-opened cases.

 13.      Impugned             order    dated   18th   July,     2019     passed        by

 respondent           No.       2      Scheduled   Tribe       Certificate     Scrutiny





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 Committee,           Nandurbar   is   set   aside.   Respondent           No.      2

Committee shall forthwith issue validity certificate to the

petitioner as belonging to "Tokare Koli" scheduled tribe. The

certificate would be subject to decision that would be taken by

the committee in the proceeding stated to have been reopened

of the validity holder Ramchandraji. In case, said certificate is

cancelled, then the petitioner may not be in a position to claim

any equities and it would be open for the committee, if the

committee is of the view that validity certificate obtained by the

validity holder is by playing fraud, then the committee may

resort to action against the petitioner as would be available in

law.

14. Rule is made absolute accordingly. Writ petition is disposed

of.

15. Parties to act upon authenticated copy of this order.

16. Needless to refer to that this order shall not influence

proceedings reopened by respondent No. 2 committee.

    [ABHAY AHUJA]                            [SUNIL P. DESHMUKH]
        JUDGE                                      JUDGE


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