Priyanka Balaji Wadikar vs The State Of Maharashtra Through ...
2022 Latest Caselaw 7975 Bom

                                  1             wp9267.2021 Judgment



         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD


                       WRIT PETITION NO. 9267 OF 2021


1.     Priyanka D/o Balaji Wadikar
       Age: 25 years, Occ: Education,
       R/o; Anandwadi (Shi. Ko.),
       Tq. Nilanga, Dist. Latur.

2.     Saurav S/o Balaji Wadikar,
       Age: 23 years, Occ: Education,
       R/o.: Anandwadi (Shi. Ko.),
       Tq.Nilanga, Dist. Latur.                 ...PETITIONERS


                     VERSUS


1.     The State of Maharashtra,
       Through its Secretary,
       Medical Education and Drugs Department,
       Mantralaya, Mumbai.

2.     The Scheduled Tribe Caste Certificate
       Verification Committee Aurangabad,
       Through its Dy. Director (R),
       Aurangabad.

3.     The Dean,
       Maratha Vidhya Prasaral Samaj's
       Dr.Vasantrao Pawar Medical College,
       Vasantdada Nagar, Adgaon, Nashik,
       District: Nashik.

4.     The Registrar,
       Maharashtra University of Health
       Sciences, Dindori Road, Mhasrul/
       Nashik, District: Nashik.

5.     The Commissioner & Competent Authority,
       Commissionerate of Common Entrance Test Cell,
       Government of Maharashtra
       8th Floor, New Excelsior Building,
       A.K. Naik Marg, Fort, Mumbai.      ...RESPONDENTS




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                                  ...
          Advocate for the Petitioner : Mr.Sunil M. Vibhute
AGP for Respondent Nos. 1 & 2-State : Mrs. Vaishali N. Patil (Jadhav)
      Advocate for Respondent No. 4 : Mr. Shamsunder B.Patil
    Advocate for Respondent No. 5 : Mr. Kashyam A. Shinde h/f
                     Mr.Mrigesh D. Narwadkar
                                  ...

                                CORAM : MANGESH S. PATIL &
                                        SANDEEP V. MARNE, JJ.

Reserved Date : 10.08.2022.

Pronouncement Date : 18.08.2022.

JUDGMENT : (PER - SANDEEP V. MARNE, J.)

1. Rule.

2. Rule is made returnable forthwith and heard finally with

the consent of the learned Advocates for the respective parties, at the

stage of admission.

3. The petitioners are the sister and brother, who have been

issued with the tribe certificates dated 25.01.2007, certifying that

they belong to 'Koli Mahadeo' tribe, which is recognised as scheduled

tribe. On the strength of the tribe certificates, the petitioner No. 1 was

allotted Medical College for M.B.B.S. course in the year 2015, and

since the College was refusing to admit her for want of tribe validity

certificate, she had filed Writ Petition No. 9594 of 2015. In that

petition, initially an interim order was passed on 22.09.2015

directing the concerned college to allow her to secure admission and

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continue her studies for the first year of MBBS Course. The petition

was subsequently disposed of by order dated 03.12.2015 recording

the statement of the respondent Committee therein that the proposal

for verification of tribe certificate of petitioner No. 1 would be decided

within one year. She was allowed to prosecute further studies and

appear for examination, subject to the decision of the Committee. It

appears that the petitioner No. 1 has now completed her M.B.B.S.

course in the year 2019 and has also undergone the necessary

internship of one year. So far as, petitioner No. 2 is concerned, he is

apparently undergoing Engineering Degree Course with IIT, Palakkad

Kerala.

4. In the above backdrop, the tribe certificates of both the

petitioners came up for verification before the Scheduled Tribe

Certificate Scrutiny Committee, Aurangabad. By the impugned order

dated 10.08.2021, the Committee has invalidated the tribe claim of

both the petitioners and has further directed that necessary action be

initiated against them by their respective Educational Institutions as

provided under Section 10 and 12 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.

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5. The petitioners have challenged the judgment and order

dated 10.08.2021 passed by the Scrutiny Committee in the present

petition. By order dated 24.09.2021, this Court directed not to take

action against the petitioners in pursuance of the impugned

judgment. The interim protection has been continued from time to

time.

6. Appearing for the petitioners Mr. Vibhute, contended that

the father of the petitioners has been granted the validity certificate

on 13.06.2006. He further contended that the validity certificate of

the father was premised on the report of the Vigilance Cell dated

15.02.2006. He further submitted that the Research Officer had given

positive report, so far as affinity test was concerned.

7. Mr. Vibhute, further contended that in the light of the

issuance of validity certificate in favour of the petitioners' father

based on Vigilance Cell Inquiry Report, it was not open for the

Vigilance Cell to record the contrary observations, while conducting

vigilance inquiry in respect of the tribe claims of the petitioners.

Similar submission is made with regard to the opinion of the

Research Officer.

8. It is further contended on behalf of the petitioners that

this is not a case of suppression of any fact in that the alleged

addition in respect of the School records of two paternal side relatives

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of the petitioners was already highlighted in the Vigilance report of

the father and that the said aspect was duly considered by the

Committee while issuing the father's validity certificate.

9. Mr. Vibhute, in support of his contentions has relied

upon the following decisions :

a) Apoorva d/o Vinay Nichale Vs. Divisional Caste Certificate Scrutiny Committee No. 1 and Others - 2010 (6) Mh. L.J. 401.

b) Prakash s/o Rambhau Thakur Vs. The State of Maharashtra and Anr. - Judgment dated 10.09.2009 in Writ Petition No. 2016 of 2007.

c) Shweta Balaji Isankar Vs. State of Maharashtra and Ors. - Order dated 27.07.2018 in Writ Petition No. 5611 of 2018.

d) Sayanna Vs. State of Maharashtra and Ors.- 2009 (10) SCC 268.

e) Miss. Madhu Narayan Birkale Vs. The State of Maharashtra and Ors, Judgment dated 11.04.2022, in Writ Petition No. 8372 of 2018.

f) Anil s/o Shivram Bandawar Vs. District Caste Certification verification Committee Gadchiroli and Anr. - 2021 (5) Mh.L.J. 345.

           g)       Ishwar s/o Naga Bondalwar and Anr Vs. The
           District       Caste   Certificate   Scrutiny      Committee

Gadchiroli, through its Princiapal Secretary, Dr. Babasaheb Ambedkar Samajik Nyay Bhawan, I.T.I.

6 wp9267.2021 Judgment

Square, LIC Road, Gadchiroli 442605 -Judgment dated 26.07.2021 in Writ Petition No. 472 of 2020.

h) Jaywant Dilip Pawar Vs. State of Maharashtra and Ors.- Order dated 08.03.2017 passed by the Supreme Court, in Civil Appeal No. 2336 of 2011.

10. Appearing for respondent Nos.1 and 2, Mrs.Vaishali Patil,

the learned Assistant Government Pleader has supported the

impugned judgment and order of the Committee. She submitted that

the father of the petitioners has already been issued with show cause

notice dated 25.08.2021 calling upon him to submit an explanation,

as to why his validity certificate dated 13.06.2006 should not be

cancelled. She submitted that despite grant of repeated opportunities,

the father has avoided to appear before the Committee.

11. Mrs. Patil, has taken us through the records relating to

the father's validity certificate. She particularly invited our attention

to the affidavits filed by Ku. Sapna d/o Shripatrao Jamadar, Shri

Shanime Vijaykumar Shivaji and Shri Rohan Shriram Akoskar,

admitting that they are relatives from maternal side of the petitioners

father and therefore the decision of the earlier Committee granting

validity in favour of father based on the validity certificates of the

aforesaid relatives was clearly erroneous. She invited our attention to

the findings recorded in the impugned judgment, with regard to the

affinity test in respect of the petitioners, to the effect that the family

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members of the petitioners are not found to be following the trait,

traditions and customs of the 'Koli Mahadeo' tribe.

12. The rival contentions of the parties now fall for our

consideration.

13. Since the sheet anchor of the petitioners has the validity

certificate granted in favour of their father, we have carefully gone

through the records leading to the issuance of validity certificate in

favour of their father. It is true that the addition of the words, 'Koli

Mahadeo', in respect of the School Records of Sarubai Ravan Koli and

'Mahadeo' in respect of School records of Ku. Koli Triveni Ravan were

specifically highlighted by the Vigilance Cell in its report dated

15.02.2006. We are therefore curious as to how the Committee

proceeded to issue validity certificate in favour of father of the

petitioners, despite such observations by the Vigilance Cell. The

petitioners have placed on record only the validity certificate of father

and not the order passed by the Scrutiny Committee. The same is in

the original record pertaining to the father. After carefully going

through the order passed by the Committee in the case of father, we

have noted that this aspect of additions being made in case of two

paternal relatives of father has been completely ignored by the

Committee in its order dated 03.06.2006. We further went through

the reply filed by the father to the Vigilance Cell report and we again

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found that the father did not refer to the said additions in the School

records of his paternal relatives in his reply. It, therefore, appears

that the validity certificate has been granted in favour of the father by

not taking into consideration the factum of subsequent additions of

the words, 'Koli Mahadeo' and 'Mahadeo' in respect of Sarubai Ravan

Koli and Triveni Ravan Koli respectively. It is an admitted position

that the said two persons are the sisters of father of Balaji Ravan Koli

(Petitioners' father).

14. Further perusal of the order dated 03.06.2006 passed in

the case of father shows that the Committee considered Shri Shanime

Vijaykumar Shivaji as father's relative without bothering to find out

as to whether said relative was of paternal side or maternal side. As a

matter of fact, the Committee had before it the affidavit of Shanime

Vijaykumar Shivaji, dated 26.09.2005, stating that Balaji Ravanrao

Wadikar is his maternal cousin (son of mother's sister). Thus,

despite clear evidence of Shanime Vijaykumar Shivaji, being maternal

relative of the father, the Committee proceeded to rely upon the

validity certificate issued in his favour for the purpose of upholding

the tribe claim of the petitioners' father. The Committee also had

before it, similar affidavits of other two maternal side relatives viz.

Ku. Sapna d/o Shripatrao Jamadar and Shri Rohan Shriram

Akoskar, who again admittedly are the maternal relatives of the

petitioners' father.

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15. In the light of the above facts emerging through the

original record pertaining to the validity claim of the petitioners'

father, we cannot find any fault in the impugned judgment of the

Committee, refusing to rely upon the father's validity certificate for

the purpose of upholding the tribe claim of the petitioners.

16. Additionally the Committee has considered the School

records of as many as 15 paternal side relatives of the petitioners and

in respect of all, there are consistent entries of caste of 'Koli'. Thus,

before the Committee, there were three sets of entries/evidence :

(i) Validity certificate issued in favour of three maternal side relatives

of father, (ii) Entries of 'Koli Mahadeo' in respect of some of the

paternal side relatives, in which there were subsequent additions, (iii)

Consistent entries of 'Koli' in School records of 15 paternal side

relatives.

17. In the light of this evidence emerging before the

Committee, it cannot be said that the finding recorded by the

Committee is, in any manner, perverse. Expecting the Committee to

blindly follow the validity certificate of father would tantamount to

perpetrating the illegality. The Committee has, in our opinion, rightly

corrected the error, albeit after some delay and has now proceeded to

issue show cause notice to the father.

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18. What remains is dealing with various judgments cited by

Mr. Vibhute :

(i) Apoorva (supra), it has been held that when the

candidate submits the caste validity certificate granted

earlier certifying that the blood relation of the candidate

belongs to the same caste, the Committee may grant such

certificate without calling for the vigilance Cell report.

However, this decision is of a little assistance to the

petitioners, as the said decision further clarifies that if the

Committee finds that the earlier caste certificate is tainted

by fraud or is granted without jurisdiction, the Committee

may refuse to follow the earlier decision and may refuse to

grant certificate to the applicant before it. In the present

case, the Committee has rightly gone through the records of

the case of the father of the petitioners and has rightly

arrived at the conclusion that the father's validity certificate

cannot be the basis for upholding the tribe claim of the

petitioners.

(ii) Prakash (supra), there were pre constitutional entries,

which were taken into consideration while deciding the

claim of the brother of the petitioner therein, which is not

the case here. In that case, this Court held that the

Committee cannot be permitted to take diagonally opposite

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stand on the same material in two different cases. However,

in that case there was no dispute about the correctness of

the validity certificate granted in the case of brother of the

petitioner therein, whereas, in the present case, the

Committee has doubted the correctness of the validity

certificate of the father for sound reasons. Therefore, this

judgment is clearly distinguishable.

(iii) Shweta (supra) is relied upon by the petitioners to

contend that mere issuance of show cause notice to the

father, cannot be a reason to straightaway discard his

certificate of validity. In the present case, we have gone

through the records relied upon in the case of the father and

have observed that grant of validity certificate to father was

by ignoring the additions made in the School records of two

paternal relatives and by relying upon the validity

certificates of maternal relatives. Therefore, this decision is

of no assistance to the petitioners.

(iv) Sayanna (supra), the controversy was about the

addition of the word "lu" in the register of School. The Court

has decided the question whether the Committee was

justified in coming to the conclusion about the addition of

the said word based on records before it. In the present case

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there is absolutely a factual controversy about the

subsequent addition of words 'Koli Mahadeo' and 'Mahadeo'

in the School records of two paternal side relatives of the

petitioners. In fact, such subsequent additions have been

noticed by the Vigilance Cell, not only while deciding the

tribe claim of the petitioners, but also while deciding the

tribe claim of their father. Therefore, the judgment in

Sayanna (supra) has no application to the present case.

(v) Miss. Madhu (supra) merely follows the decision of

the Supreme Court in Sayanna and therefore has no

application to the facts and circumstances of the present

case.

(vi) Anil and Ishwar (supra) are the decisions of this Court

relating to the show cause notices for cancellation of the

validity certificates issued earlier. This Court has gone into

aspect as to whether the issuance of such show cause

notices in the facts and circumstances of those cases was

warranted or not. In the present case, the said issue is not

involved, therefore, both the decisions are of little assistance

to the petitioners.

(vii) Jaywant (supra) the issue was about the relatives of

the appellants therein not being residents of the areas

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mentioned in the Presidential Order, 1956 and therefore, the

said order also has no application to the present case.

19. Thus, none of the decisions cited by the Mr. Vibhute are

applicable to the peculiar facts and circumstances of the present

case.

20. In the result, we find no jurisdictional error or perversity

in the impugned judgment passed by the Scrutiny Committee. In

prayer Clauses 'D' & 'F', the petitioners have sought the following

reliefs :

"(D) The respondent No. 3 and 4, may kindly be restrained from taking any adverse action against the petitioner pursuance to the impugned judgment

committee and respondent No. 3 and 4 may kindly be directed to issue Internship Completion Certificate, Decree Certificate of course of M.B.B.S and other original documents, which the petitioner No. 1 is entitled.

(F) The respondent No. 5 may kindly be directed to consider the petitioner from Schedule Tribe category in entire admission process of NEET-PG- 2021 without insisting for Tribe Validity Certificate of the petitioner, subject to the adjudication of Tribe Claim of the petitioner by this Hon'ble Court in this petition."

21. Having held that the order passed by the Committee is

valid, we are afraid we cannot grant prayer Clauses D & F to the

petitioners. In Chairman and Managing Director, Food Corporation of

India and Ors. Vs Jagdish Balaram Bahira (2017) 8 SCC 670, the

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Hon'ble Supreme Court has held that withdrawal of benefits secured

on the basis of caste claim which has been found to be false and is

invalidated is a necessary consequence which flows from the

invalidation of the caste claim. The entire petition of the petitioners

must fail. We, therefore, proceed to pass the following order :

ORDER

1) The petition is dismissed.

2) The interim protection granted earlier is vacated.

             3)      No costs.

             4)       Rule is discharged.




  ( SANDEEP V. MARNE )                      ( MANGESH S. PATIL )
        JUDGE                                    JUDGE



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