Vedanti Chandrashekhar Bhuyar ... vs Scheduled Tribe Caste Certificat ...
2022 Latest Caselaw 544 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.

                            WRIT PETITION NO. 5302 OF                      2021

         PETITIONER :-                1. Ku. Vedanti Chandrashekhar Bhuyar, aged
                                         19 years, Occ. Student, r/o Tirupati City,
                                         Washim District Washim.

                                      2. Akash s/o Chandrashekhar Bhuyar, aged
                                         23 years, occ. Student, r/o. Tirupati City,
                                         Washim, District Washim.

                                              ...VERSUS...

         RESPONDENTS :-               1. The Scheduled Tribes Caste Certificate
                                         Scrutiny Committee, through its Member
                                         Secretary, Chaprasipura, Amravati.

                                      2. State of Maharashtra, through its
                                         Secretary,  Department     of  Tribal
                                         Development,   Mantralaya,    Mumbai
                                         400032.

         --------------------------------------------------------------------------------------------
                       Mr. R. S. Parsodkar, counsel for the petitioners.
                           Ms N.P. Mehta, AGP for the respondents.
         ---------------------------------------------------------------------------------------------

                                   CORAM :          A.S.CHANDURKAR &
                                                    ANIL L. PANSARE, JJ.
                                   DATE        : 17.01.2022.

         JUDGMENT (Per : Anil L. Pansare, J)

Heard.

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         1.           Rule. Rule made returnable forthwith.

2. The writ petition is heard finally with the consent of

the learned counsel for the parties.

3. The petitioners have challenged the order dated

29/11/2020 passed by respondent No.1-Scheduled Tribe Caste

Certificate Scrutiny Committee invalidating the caste certificates

issued in favour of the petitioners as belonging to Thakur

Scheduled Tribe. According to the petitioners, they belong to

Thakur Scheduled Tribe, which is enlisted in Constitution

Scheduled Tribes Order, 1950. The petitioner No.1 is real sister of

petitioner No.2. Both the petitioners are pursuing their studies

under reservation to scheduled tribes.

4. The grievance of the petitioners is that the respondent

No.1 has ignored documentary evidence and invalidated the caste

certificate on the basis of the documents that were obtained by

Vigilance Cell, so also on the basis of affinity test. The learned

Advocate for the petitioners submits that the documents obtained

by the Vigilance Cell were belonging to certain persons, who were

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not relatives of the petitioners. Therefore, the respondent No.1

could not have relied upon those documents.

5. It is further the case of the petitioners that blood

relatives of the petitioners were granted validity certificate of

Thakur Scheduled Tribe, some of which were issued in terms of

order passed by this Court. However, the respondent No.1 has

ignored those documents without assigning any valid reason. The

learned Advocate for the petitioners has taken us through various

documents which according to him, were of prime importance,

which respondent No.1-Committee has ignored. It is accordingly

argued that the respondent No.1-Committee has committed

serious error by invalidating the caste claim of the petitioners.

6. As against the learned AGP has supported the

impugned order by contending that the respondent No.1-

Committee was well within its jurisdiction to consider the

documents obtained by Vigilance Cell and to reject the claim of the

petitioners. The respondent No.1 has independently analyzed the

claim on the basis of the documents tendered by the petitioners,

documents obtained by Vigilance Cell and the result of affinity test.

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The said order is in tune with the guidelines issued by this Court,

so also the relevant Rules.

7. Having heard both sides, what transpires is that there

is a document which shows that a son was born on 1 st of March,

1915 to great great grandfather of the petitioners and the caste of

the great great grandfather has been recorded as Thakur. There

are documents of other relatives as well, which show their caste as

Thakur. These documents including following important

documents were placed before the respondent No.1-Committee.

These documents belonged to six relatives of the petitioners in

favour of whom the caste validity certificate was issued.

(1) Swapnil Pradip Bhuyar (cousin uncle) - caste validity certificate has been issued by the Caste Scrutiny Committee, Nasik.

(2) Tushar Pradip Bhuyar (cousin uncle) - caste validity certificate has been issued by the Caste Scrutiny Committee, Aurangabad.

(3) Surendra Ajabrao Bhuyar (cousin uncle) - caste validity certificate has been issued by the Caste Scrutiny Committee, Nagpur.

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              (4)     Aalok Mangesh Bhuyar (cousin brother) - caste

validity certificate has been issued by the Caste Scrutiny Committee, Amravati in terms of the order dated 02/08/2019 passed by this Court in Writ Petition No. 5186 of 2016.

(5) Sarita Shankar Bhuyar (cousin aunt) - caste validity certificate has been issued by the Caste Scrutiny Committee, Amravati in terms of the order dated 28/08/2019 passed by this Court in Writ Petition No.4957 of 2019.

(6) Avinash Shankar Bhuyar (cousin uncle) - caste validity certificate has been issued by the Caste Scrutiny Committee, Amravati in terms of the order dated 28/08/2019 passed by this Court in Writ Petition No.4957 of 2019.

8. These documents were ignored by the respondent

No.1-Committee by assigning the reason that merely because some

relatives are validity holders, the certificates to others may not

automatically follow without going in the question and facts as to

how the validity was issued and what lacunae resulted in issuing

such validity certificates. The respondent No.1-Committee has

then recorded various reasons like some facts were suppressed by

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the respective relative in obtaining validity certificate etc. The

respondent No.1-Committee, while dealing with the validity

certificate issued in favour of Tushar Pradip Bhuyar, the certificate

issued by Caste Scrutiny Committee, Aurangabad, observed that

there should be at least three members in the quorum for a valid

decision and that the order was passed by only two members. The

scan copy of the said order is part of the order impugned before

us. The said scan copy indicates that all the four members have

signed the validity certificate. It is therefore, difficult to

understand as to on what basis such finding has been rendered by

the respondent No.1 that the validity claim of Tushar was not valid

for want of quorum.

9. Thus, for one reason or the other, the respondent

No.1-Committee has ignored six important documents. In our

view, the Committee has travelled beyond its jurisdiction in

recording such finding on the validity certificates issued by

respective Caste Scrutiny Committees. It is so because, none of the

caste validity certificates have been challenged by the Committee

or any other person. In absence thereof, the Committee could not

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have ignored these documents by assigning reasons, which the

Committee was not empowered to. The respondent No.1-

Committee was/is not an Appellate Authority to test the

correctness of the decision of Caste Scrutiny Committee validating

caste certificate of the relatives of the petitioners. The caste

certificate having attained finality, the respondent No.1-Committee

was under obligation to consider the same in favour of the

petitioners.

10. In the case of Apurva v. D.C.C.S. Committee, reported

in 2010 (6) Mh.L.J. 401, the Coordinate Bench of this Court, has

held that during the course of enquiry of the candidate submits a

caste validity certificate granted earlier certifying that a blood

relation of the candidate belongs to the same caste as that claimed

by the said candidate, the Committee may grant such certificate

without calling for Vigilance Cell Report. It is further held that

merely because the Committee has different view on the same

facts, it would not entitle the Committee dealing with the

subsequent caste claim to reject earlier caste certificate. The only

exception carved out is that if the Committee finds that the earlier

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caste certificate is tainted by fraud or is granted without

jurisdiction, the Committee may refuse to follow and may refuse to

grant certificate to the applicant before it.

11. In the present case the Committee has not recorded

the finding that the caste validity certificates granted to the

relatives of the petitioners were obtained by fraud or were granted

without jurisdiction. In the circumstances, the Committee was

under obligation to consider the said certificates in favour of the

petitioners. The Committee failed to do so.

12. On the point of documentary evidence, though the

Committee has referred to the birth record of male child born to

Ambadas Thakur (great great grandfather of the petitioners) on 1 st

of March, 1915, it has failed to give due weightage to the said

document. Instead, it has referred to the documents obtained by

the Vigilance Cell. The respondent No.1-Committee has relied

upon those documents by mentioning that the said record has

been suppressed by the petitioners. The said documents according

to the respondent No.1 related to great great grandfather and

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other relatives of the petitioners, showing their caste as Thakur

Bhat and Bramhabhat.

13. These documents, in our considered view could not

have been relied upon by the Committee. The Committee has

sought say of the petitioners upon the said documents. The

petitioners have filed their say before the Committee mentioning

therein, with reasons, that those documents do not belong to their

forefathers. The respondent No.1 has not dwelve upon the said

reply and reasons assigned by the petitioners. There is no finding

of the Committee that the say filed by the petitioners was incorrect

or that the documents disputed by the petitioners were indeed

belonging to the forefathers of the petitioners for some valid

reasons. What respondent No.1 has done is that it has directly

referred to those documents and then recorded a finding that the

caste of the applicants' family has been recorded as Thakur Bhat

and Bramhabhat.

14. In this regard, our attention is drawn by the

petitioners to order dated 02/08/2019 passed by the Coordinate

Bench of this Court in the case of Aalok Mangesh Bhuyar v.

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Scheduled Tribes Caste Certificate Scrutiny Committee in Writ

Petition No.5186 of 2019. As stated earlier, Aalok (petitioner

therein) is cousin brother of the petitioners. The validity certificate

has been issued in his favour in terms of the aforesaid order. In the

said case also, the Caste Scrutiny Committee ignored valid

documents, which includes document dated 1st March, 1915

mentioned above. In the said case also, the Scrutiny Committee

gave weightage to the documents collected through the Vigilance

Cell to arrive at a conclusion that the relatives of the petitioners

belonged to caste Bhat. The Coordinate Bench of this Court

observed in para-5 as under:

"5. The petitioner has produced in all 19 documents for the evaluation of Committee. These documents are including of School Leaving Certificate of petitioner's grand father namely Panjabrao, dated 18.06.1942, birth date extract of petitioner great-grandfather - Narayan, dated 09.11.1933 and birth extract dated 01.03.1915 of petitioner's great-great-grandfather namely Ambadas. All these pre-constitutional documents shows the entry of the caste "Thakur" to the record.

The Vigilance Cell has not disputed the genuineness of the old documents produced by the petitioner showing entry of "Thakru" caste. On the other hand, the learned Assistant Government Pleader

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submitted that the Vigilance Cell has collected two old documents showing that caste "Bhat" has been entered to the record of Ambadas and Lakshman who are petitioner's parental relatives. However, the oldest document of the year 1915 is of "Thakur" caste carries much weight."

15. The High Court has then refuted the findings of the

Scrutiny Committee. Thus, the Committee was aware that Aalok,

the cousin brother of the petitioners was granted caste validity

certificate in terms of the aforesaid order. In that sense, it could be

presumed that the Committee was aware of passing of the

aforesaid order dated 02/08/2019 in Writ Petition No.5186 of

2019. Despite this, the respondent No.1-Committee has ignored

the pre-constitutional and the oldest document produced by the

petitioners, which is dated 1st March, 1915 showing caste of great

great grandfather of the petitioners as Thakur.

16. The Committee has not only committed the aforesaid

error, but has committed yet another patent mistake, when it

ignored the validity certificate issued in favour of Aalok-cousin

brother, Sarita-cousin aunt, Avinash-cousin uncle and

Surendrakumar-cousin uncle on the ground that they have

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obtained the orders from the High Court by suppressing the

decision in the case of Pushpasheela Panjabrao Bhuyar in Writ

Petition No.726 of 2004, Vivek Vinayakrao Bhuyar in Writ Petition

No.2959 of 2002 and Bhagyashri Vinayakrao Bhuyar in Writ

Petition No.2960 of 2002, dated 01/08/2018. Pushpashila is the

petitioners' aunt and Vivek is petitioners' cousin uncle. The reason

why we have said that the respondent No.1 has committed patent

mistake is because a categorical adverse finding has been

recorded by the Coordinate Bench in Aalok's case supra in respect

of similar such argument before it. In para-6, the Court has

observed as follows:

"6. The learned Assistant Government Pleader brought to our notice that caste claims of the petitioner's real aunt Pushpasheela and cousin uncle - Vivek were rejected by this Court. The learned counsel for the petitioner is quick enough to inform that these decisions are subject matter of challenge before the Hon'ble Supreme Court of India in which, the mater is stayed. He produced copy of SLP (C) No.26471/2018 for that purpose. ......."

17. Thus, the Committee has relied upon the judgments

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which have been stayed by the Hon'ble Supreme Court and has

erroneously come to the conclusion that the relatives of the

petitioners have obtained orders from this Court by suppressing

the earlier decisions. Importantly, such error has been committed

by the respondent No.1 when the aforesaid aspect was already

considered by this Court in Aalok's case.

18. In the circumstances, what emerges is that there is a

valid pre-constitutional document, as old as of the year 1915 in

favour of petitioners showing caste of great great grandfather as

belonging to Thakur. There are as many as six relatives of the

petitioners in whose favour the caste certificate has been validated

as belonging to caste Thakur. There is no challenge to issuance of

said validity certificates. The Thakur, Scheduled Tribe is enlisted at

Sr.No.44 in the Constitution (Scheduled Tribes) Order, 1950. The

respondent No.1-Committee, therefore, could not have ignored

these documents, rather was bound to follow these documents and

issue validity certificate in favour of the petitioners. Having failed

to do so, the respondent No.1 has committed an error in law.

19. So far as the affinity test is concerned, the law is well

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settled on this point. In the case of Anand v. Committee for

Scrutiny and Verification of Tribe Claims and others, reported in

2011 (6) Mh.L.J. 919, the Hon'ble Supreme Court has specifically

held and expressed that great reliance should be placed on

pre-independence documents because they furnish high degree of

probative value. It is further held that affinity test is merely to be

used to corroborate documentary evidence and it is not to be used

as criteria for rejection of claim. Thus, the respondent No.1 could

not have ignored documentary evidence and could not have given

weightage to affinity test by ignoring valid documents.

20. Put all together the respondent No.1-Committee's

approach is against the well settled principles of law. The order

impugned suffers from non-application of mind. It is liable to be

set aside. Hence, we proceed to pass following order.

(i) The order passed by the Scheduled Tribes Caste Certificate

Scrutiny Committee, Amravati, dated 29/11/2020, is set

aside.

(ii) It is declared that the petitioners belong to "Thakur"

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Scheduled Tribe and the Scrutiny Committee shall issue

validity certificate to both the petitioners within a period of

of two weeks from today.

(iii) Since the petitioners are pursuing their studies they are at

liberty to produce copy of this judgment before the

Competent Authority to indicate that a direction to issue

validity certificate in their favour has been issued by the

Court.

21. Rule is made absolute in the aforesaid terms. No costs.

                                        (ANIL L. PANSARE, J)              (A. S. CHANDURKAR, J)




    KHUNTE
Signed By:GHANSHYAM S
KHUNTE


Signing Date:21.01.2022 15:50