Gaurav S/O Chandrashekhar ... vs Deputy Director/ Member ...
2022 Latest Caselaw 893 Bom

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

                               WRIT PETITION No.5040 OF 2021


        Gaurav s/o Chandrashekhar Mungalkar,
        Aged about 23 years,
        Occupation : Student,
        R/o. Mahaveer Nagar,
        Near Gupta Provision, Badnera Road,
        Amravati-444 605.                                     :   PETITIONER

                       ...VERSUS...

        1.   Deputy Director/Member Secretary,
             Scheduled Tribe Caste Scrutiny Committee,
             Having its Office near Government Rest House,
             Old Bye-pass Road, Chaprashi Pura,
             Amravati.

        2.   Sant Gadgebaba University,
             Through its Registrar, Tapovan,
             Amravati-.44602                              :       RESPONDENTS


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
        Shri S.P. Palshikar, Advocate for Petitioner.
        Shri A.A. Madiwale, Assistant Government Pleader for Respondent No.1.
        Shri J.B. Kasat, Advocate for Respondent No.2.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                                      Coram : A.S. Chandurkar and
                                              Smt. M.S. Jawalkar, JJ.

Date : 25th January, 2022.

ORAL JUDGMENT : (Per : Smt. M.S. Jawalkar, J.)

1. Rule. Rule made returnable forthwith.

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2. Considering the urgency in the matter, the matter is heard

finally at the stage of admission and by consent of the parties.

3. The petitioner claims to belongs to "Raj" caste which is

recognized as "Scheduled Tribe" as per Entry No.18 in the Constitution

(Scheduled Tribes) Order 1950. It is submitted by the learned counsel for

the petitioner that the petitioner is student and has pursued his education

and has appeared for the course of Bachelor of Engineering. The

certificate of "Raj" issued by the competent authority was sent to the

respondent No.1/Committee for verification. Earlier he filed Writ

Petition No.4288/2019 seeking direction to decide the caste claim and it

was disposed of by giving six months' time for decision. The Caste

Scrutiny Committee rejected the claim of the petitioner. The said

rejection was also challenged by filing Writ Petition No.3724/2020. This

Court quashed and set aside the order of Committee and remanded back

the matter to the Committee by issuing certain directions and for this

purpose twelve weeks' time was granted. The petitioner constrained to

file contempt petition as directions were not complied with. Ultimately,

on 18.1.2021 caste claim of the petitioner was invalidated. Since this

decision would affect petitioner's further education this petition is taken

up for consideration.

4. It is submitted by Shri S.P. Palshikar, learned counsel for the

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petitioner that the Committee while invalidating the certificate considered

irrelevant evidence and not considered the relevant and old documents.

The old documents which were placed on record before the caste scrutiny

committee by the petitioner and some of them mere collected by

vigilance cell were not considered by the committee. There are as many

as 15 documents placed on record. Out of that, four documents in respect

of school record are prior to year 1950. The extract of Admit Cancel

Register pertaining to Sitaram Pandurang, who is grandfather of

petitioner, is of dated 17.4.1945, wherein his caste is shown as 'Raj'.

Another entry in respect of Sheshrao Zabulal Mungalkar, who is in cousin

relation and son of Zabulal is of dated 1947, wherein caste of Sheshrao

shown as 'Raj'. There are subsequent consistent entries showing caste

'Raj' of the year 1952, 1953 and 1959. There is no dispute about the

correctness of family tree. In view thereof, there are sufficient

documentary evidence before the caste scrutiny committee to give

validity certificate. Apart from this, it is submitted that the caste scrutiny

committee considered irrelevant documents and not considered the

documents prior to 1950 for the reason that there is no affidavit in the

school record in respect of child born before 1944 and therefore, there is

no clear opinion of the school authority. So far as birth record in respect

of son of Zabulal and son of Sonba in the years 1947 and 1942

respectively were reported to be worn out/mutiliated condition and

therefore, cannot be verified and committee erroneously held that those

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cannot be treated as evidence having probative value. Apart from this,

there is a copy of registered gift deed dated 22.06.1915 placed on record

wherein mention of great grandfather of the petitioner is there showing

his caste as 'Raj'. It is also further pointed out that vigilance cell

procured some mutation entries and record of rights of the revenue from

Assistant Deputy Registrar, Class-II 1, Akola. These are extracts of

entries in respect of Survey no.78 in Sheet no.449/1940, so also Sheet

no.438/1941, wherein caste of Shankar Sonba, cousin brother of

petitioner's great grandfather is shown as Shankar Sonba Raj. These

documents were procured by the vigilace cell and is the government

record, therefore, there is no reason whatsoever not to consider these

documents.

5. As against this, the learned Assistant Government Pleader,

submitted that the scrutiny committee was justified in refusing to grant

any validity certificate. The paternal aunt made statement that her

marriage has performed in their caste only. It appears that Vidya

Sitaramji Mungalkar, the paternal aunt of the petitioner, married to one

Shri Manohar Ramkrishna Pinjarkar. The real uncle of Manohar

Balkrushna Pinjarkar i.e. Shri Vijay Shankar Pinjarkar challenged the

order of caste scrutiny committee, vide Writ Petition No.4277/2001. At

the relevant time, this court held that the petitioner is not 'Raj' Scheduled

Tribe. The said judgment was then challenged to the Apex Court and the

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Apex Court also dismissed the petition.

6. We heard both the parties at length, also perused the record

maintained by the scrutiny committee. Undisputedly many documents

placed on record by the petitioner as well as collected by the vigilance

committee are the documents of pre-independence period. The school

record, revenue record, registered gift-deed clearly goes to show that the

caste of the Shankar Sonba and other near relatives of the petitioner were

referred as 'Raj'. The caste scrutiny committee came to the conclusion

on the basis of oral statement made by maternal aunt of the petitioner

married with one Manohar Pinjarkar in the same caste and Manohar

Pinjarkar's family shown as caste 'Gawandi' or some where as 'Maratha'

and therefore, the caste of the petitioner also to be treated as 'Gawandi'.

It is also one of the ground for rejection of the validity certificate.

7. There is reference in the order of the committee of Writ

Petition No.4277/2001 in respect of one Vijay Pinjarkar. The said petition

came to be dismissed by the Single Bench of this Court. The said order

was challenged before the Hon'ble Apex Court, vide Civil Appeal

No.2182-2183/2011. It is observed by the caste scrutiny committee that

in view of the order of Apex Court, the order of High Court and caste

scrutiny committee is maintained. The order passed in SLP

No.2182/2183/2011 was not disclosed by Prashant Pinjarkar in his

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Petition No.54/2000 which amounts to suppression of previous courts

order in respect of blood relation.

8. The findings recorded by the Caste Scrutiny Committee is

totally erroneous and without application of mind. On the first place the

order passed by the Hon'ble Apex Court in Civil Appeal Nos.2182-

2183/2011 dated 28th February, 2011 in the case of Vijay Shankarrao

Pinjarkar was in view of retirement of Vijay Pinjarkar during the

pendency of the Special Leave Petition before the Hon'ble Apex Court.

It was held by the Apex Court that :

"The appellant was appointed under the Scheduled Tribe category in the year 1974. His certificate was referred to the Scrutiny Committee in the year 1999 and it was invalidated thereafter. It is the conceded position that consequent to the interim order granted by us the appellant had also continued to be in service and has retired in February, 2011. In view of these facts we do not at this belated stage feel that the appellant should be non-suited, notwithstanding the fact that his certificate has been invalidated by the Scrutiny committee and his writ petition has also been dismissed by the High Court.

We accordingly dispose of the appeals in the above terms and direct that the appellant shall be deemed to have continued in service till the date of his superannuation. The appellant will be given his retiral dues as per law."

Thus, the correctness of the findings recorded by this Court

in the writ petition was not gone into while granting retiral benefits to the

said petitioner.

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9. If the Caste Scrutiny Committee would have perused the

order passed by Division Bench of this Court in Writ Petition

No.54/2000, dated 6th October, 2017 in the case of Prashant

Damodarrao Pinjarkar, this Court on the basis of various documents of

pre-independence era considered and allowed the petition, whereas the

judgment passed in Vijay Pinjarkar's matter was by learned Single Judge.

According to the Scrutiny Committee, Prashant Pinjarkar is the nephew

of Vijay Pinjarkar.

10. In the present matter also there is no dispute about the family

tree which is produced on record is correct. As per the family tree

Sitaram is a grand-father of petitioner and Sonba Raj is Sitaram's grand-

father. The extract of Admit Cancel Register maintained by the school in

respect of Sitaram Pandurang is of dated 17.4.1945 shows caste as "Raj",

so also school record in respect of Sheshrao Zabulal Mungalkar referred

caste as "Raj" dated 17.4.1947. Subsequent school record in respect of

Ashok Shankarrao of 1952 pertaining to Zabulal is of 1.7.1973, Vasant

Mungalkar of the year 1953 consistently shows they belong to caste

'Raj'. The documents which pertaining close relatives of petitioner prior

to 1950 were discarded by the Scrutiny Committee on the ground that the

entry of caste "Raj" could not be verified for want of affidavit

maintained by the school which is totally erroneous as there is nothing on

record to show that at the relevant time such affidavit used to be

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maintained by the school. So far as reference of Pinjarkar's family is

concerned the Division Bench of this Court has already set aside the

decision of Caste Scrutiny Committee invalidating the caste of Prashant

Damodarrao Pinjarkar and certificate was also issued in his favour

treating his caste as "Raj Scheduled Tribe". Admittedly, the Vigilance

Cell obtained copies of mutation entry of revenue record. These

documents were obtained by the Vigilance Cell from Sub-Registrar,

Class-II, Akola as follows :

(i) Sheet No.449/1940, Sale-Deed by Shankarrao Sonba,

wherein he was referred as Shankar Sonba Raj;

(ii) Sheet No.430/2041, wherein Shankar Sonba Raj was

shown as purchaser of field;

(iii) Sheet No.997/1952 Shankar Sonba Raj shown as

Vendor.

11. Two entries prior to 1950 were not considered by the Caste

Scrutiny Committee. The petitioner also placed on record copy of

registered Gift-Deed dated 22nd June, 1915, wherein reference of caste of

Sonba and Deoji Mungalkar shown as "Raj" can be seen. This document

was very much in the record of Caste Scrutiny. Thus, there is ample

evidence on record before the Caste Scrutiny Committee in the form of

documents which are of pre-indepedence era showing the caste 'Raj'.

The Caste Scrutiny Committee failed to consider those documents inspite

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of specific order of this Court dated 12 th January, 2021 in Writ Petition

No.3724/2020. The Caste Scrutiny Committee clearly failed to consider

the documents which are of pre-independence era and were carrying great

weightage/probative value as they were referring to the caste "Raj" and

all these documents were in favour of close relatives of the petitioner i.e.

father, grand-father, great-grand-father etc. Unnecessary importance is

given to the oral statement of Vidya Pinjarkar that she married in their

caste only when there are documents on record that the family of the

petitioner belongs to Raj caste. There is no substance in oral submission

made by the parties. Probative value of old pre-independence documents

cannot be ignored on that basis. Moreover, in the matter of Prashant

Pinjarkar the Division Bench of this Court has already directed to issue

certificate to Prashant Pinjarkar by showing his caste "Raj Scheduled

Tribe". The Caste Scrutiny Committee failed to appreciate that even

Prashant Pinjarkar is declared as Raj Scheduled Tribe. The said judgment

is binding on Caste Scrutiny Committee. The Caste Scrutiny Committee

cannot on its own whims give importance to the oral statements by

passing the judgment of Division Bench of this Court.

12. In that view of the matter, the order passed by the Scrutiny

Committee dated 18.10.2021 invalidating the caste and the Tribe claim of

the petitioner is liable to be quashed and set aside. Accordingly, we

proceed to pass following order :

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                                               ORDER

                            (i)     The order dated 18.10.2021 passed by the Deputy

Director/Member Secretary, Scheduled Tribe Caste Scrutiny Committee,

Amravati is set aside.

(ii) It is declared that the petitioner belongs to "Raj"

Scheduled Tribe which is Entry No.18 in the Constitution (Scheduled

Tribes) Order 1950.

(iii) the Scrutiny Committee shall issue the validity

certificate to the petitioner within a period of four weeks from today. Till

the validity certificate is issued to the petitioner, he is free to rely upon

copy of this judgment to indicate that it has been declared that the

petitioner belongs to "Raj" Scheduled Tribe.

(iv) The respondent No.2 shall accordingly declare the result

of the petitioner pursuant to his B.E. (Civil) Examination held in

November 2020.

13. Rule is made absolute in aforesaid terms with no order as to

costs.

                       (Smt. M.S. Jawalkar, J.)               (A.S. Chandurkar, J.)

Wadode