Bombay High Court
Asra Fatema D/O Zakir Ali Ahmed vs State Of Maharashtra, Thr. ... on 13 October, 2022
Bench: A.S. Chandurkar, Urmila Sachin Phalke
J-wp.920.21.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.920 OF 2021
Asra Fatema d/o Zakir Ali Ahmed
Age 20 years,
Occupation - Student,
R/o. Ahmed house, Habib Nagar No.1,
Walgaon Road, Amravati,
Taluka & District Amravati
...PETITIONER
VERSUS
1. State of Maharashtra,
through Secretary Tribal Development
Department, Mantralaya,
Mumbai - 400032
2. The District Caste Certificate Scrutiny
Committee, Amravati through
its Secretary and Chairpersons,
Taluka and District Amravati
...RESPONDENTS
______________________________________________________
Shri S.S. Dhengale, Advocate for the petitioner.
Mrs. S.S. Jachak, Assistant Government Pleader for the
respondents/State.
______________________________________________________
CORAM : A.S. CHANDURKAR AND
URMILA JOSHI-PHALKE, JJ.
RESERVED ON : OCTOBER 06, 2022.
PRONOUNCED ON : OCTOBER 13, 2022.
JUDGMENT (Per Urmila Joshi-Phalke, J.)
Heard learned counsel for the parties.
2. RULE. Rule made returnable forthwith.
3. The petitioner is a student pursuing her further education.
She claimed to be 'Chapparband' (De-notified tribe). As per the
contention of the petitioner she is studying in B.E. (Civil) final year.
Her caste claim was referred for verification. She submitted various
documents to substantiate her claim to be 'Chapparband'. The Caste
Scrutiny Committee referred the same to the Vigilance Committee for
necessary enquiry. The Vigilance Committee submitted its report on
08/07/2019. As per the contention of the petitioner, the Vigilance
Committee had not expressed any negative opinion. However, after
receipt of report, the Caste Scrutiny Committee issued notice on
07/08/2019 and called the petitioner to remain present on 20/08/2019.
Accordingly, the petitioner had filed detailed reply on 20/08/2019 but
the Scrutiny Committee rejected the claim of the petitioner by assigning
reason that the petitioner had failed to prove that she belongs to
'Chapparband'. It is further the contention of the petitioner that before
the Caste Scrutiny Committee she relied on the pre-independence entries
i.e. extract of Dakhal Kharij register which shows that as per her
grandfather's school leaving certificate, birth date is recorded as
01/07/1933. He was admitted in the Municipal School, Amravati for the
period from 20/08/1949 to 04/04/1950. In the school he was recorded
as 'Chapparband'. She further submitted that the validity certificate was
issued to her paternal uncle by name Ashfaque Ahmed. Her father and
her brother were also recorded as 'Chapparband' and the caste
certificates were issued to them by the Sub-Divisional Officer but the
Committee had rejected the caste claim of the petitioner by assigning
reason that the caste validity certificate issued to Ashfaque Ahmed prior
to the decision of the Hon'ble Apex Court in the case of Kumari Madhuri
Patil and anr. Vs. Additional Commissioner, Tribal Development and ors.
(1994) 6 SCC 241. Therefore, the said decision cannot be taken into
consideration.
4. Being aggrieved with the said order passed by the Caste
Scrutiny Committee, the petitioner had filed this petition on the ground
that the Caste Scrutiny Committee had not considered the detailed reply
by which the petitioner had explained the issues raised by the Caste
Scrutiny Committee in the show cause notice. The Caste Scrutiny
Committee also assigned reason that there is scoring in the Dakhal Kharij
register regarding the caste of her grandfather. However, there is no
evidence to show that who had made such interpolation in the said
Dakhal Kharij register. Thus, the order passed by the Caste Scrutiny
Committee is arbitrary, illegal and liable to be set aside.
5. In response to the notice, respondents opposed the petition
on the ground that there is a scoring in the Dakhal Kharij register of the
grandfather of the petitioner. interpolation is made in the Dakhal Kharij
register by mentioning his caste as 'Chapparband'. There is no other
evidence to show that the petitioner belongs to 'Chapparband' (De-
notified tribe), therefore, the order passed by the Caste Scrutiny
Committee is justified one.
6. Heard Shri S.S. Dhengale, learned Counsel for the petitioner.
He submitted that the Caste Scrutiny Committee had not considered the
previous validity issued to the paternal uncle of the petitioner.
Moreover, there is no evidence to show that who had made that alleged
interpolation. The statement of the Head Mistress is vague one. She is
not the author of the document. The petitioner had explained all the
circumstances. The school leaving certificate of the grandfather of the
petitioner namely Sheikh Ahmed Sheikh Papa issued by the Municipal
School, Amravati shows birth date was recorded as 01/07/1933. He was
admitted in the school on 20/08/1949 and at the time of admission his
caste was recorded as 'Chapparband'. The entry regarding the caste of
the petitioner's grandfather is of pre-independence which had probative
value but the Scrutiny Committee had not considered the same and by
assigning reason that validity issued to the paternal uncle was prior to
the judgment of Madhuri Patil. Merely because the validity was issued
previously to the judgment of the Hon'ble Apex Court did not make it
illegal document. Said validity was not challenged by the respondents
neither it was cancelled, therefore, it has to be taken into consideration.
7. In support of his contention he relied upon Ku. Nayan d/o
Bhaskar Chouke Vs. The Scheduled Tribes Caste Scrutiny Committee,
Nagpur in Writ Petition No.491/2019, wherein it is held that the validity
granted to the father and real brother of the petitioner was without
conduct of vigilance enquiry but the question that the Scrutiny
Committee should have ask to itself before rejecting those validities as to
whether or not the Scrutiny Committee which granted those validity
earlier was satisfied on the basis of the documentary evidence produced
that there was no further need for conduct of any vigilance enquiry. But
even asking this question and making any attempt to answer it, the
Scrutiny Committee straight way rejected the validities and refused to
accept those validity certificates as sufficient proof of the social status of
the petitioner. He further relied upon the decision in Writ Petition
No.309/2021 (Ku. Pallavi d/o Rajendra Dardemal Vs. The Vice-
Chairman/Member Secretary, S.T. Caste Certificate Scrutiny Committee,
Nagpur & ors.) dated 20/07/2022 wherein this Court has referred the
decision on Gitesh s/o. Narendra Ghormare vs. Scheduled Tribe
Certificate Scrutiny Committee Nagpur and others 2018(4) Mh.L.J. 933
and held that the validity granted in the family was not considered as a
valid proof of the caste or the tribe claim for the reason that the validity
granted earlier was not after the conduct of the Vigilance enquiry. This
Court by referring the provisions made in Rule 12(2) of the Maharashtra
Scheduled Tribes (Regulation of Issuance and Verification of) Certificate
Rules, 2003 held that it is the discretion of the Scrutiny Committee,
whether the claim is to be forwarded to the Vigilance Cell for conducting
school (home) and other enquiry or not. On the basis of this decision he
submitted that the order passed by the Scrutiny Committee is illegal,
arbitrary and liable to be set aside.
8. On the other hand Mrs. S.S. Jachak, learned Assistant
Government Pleader submitted that the record on which the petitioner
relied upon is the pre-independence entry regarding the caste of her
grandfather. But the Committee had collected the extract of Dakhal
Kharij register which shows that the entry regarding the caste in the
Dakhal Kharij register in front of the name of the grandfather of the
petitioner is in another ink and there is scoring. Thus, the document is
doubtful, therefore, the Caste Scrutiny Committee called the Head
Mistress of the Municipal School, Amravati and recorded her statement.
Therefore, the order passed by the Caste Scrutiny Committee is justified
one and no interference is called for.
9. After hearing both the parties at length and after perusing the
record maintained by the Scrutiny Committee apparently shows that the
petitioner mainly relied upon the pre-independence document i.e. the
school leaving certificate issued by the Municipal School of her
grandfather showing that her grandfather Shaikh Ahmed Shaikh Papa
was born on 01/07/1933 and was admitted in the Municipal School,
Amravati from 20/08/1949 to 04/04/1950. At the relevant time, the
caste of her grandfather was recorded as 'Chapparband'. The petitioner
also relied upon her school leaving certificate wherein she was recorded
as 'Chapparband'. Her father was also recorded as 'Chapparband'. The
Sub-Divisional Officer had issued caste certificate to her family members
showing that they belong to 'Chapparband' de-notified tribe. She had
also produced family tree during the Vigilance enquiry which shows that
Shaikh Ahmed Shaikh Papa was her grandfather who had four sons and
one daughter namely Zakir Ali Ahmed, Ashfaq Ahmed, Mazhar Iqbal,
Jafar Iqbal and Shabnam firdos. The petitioner is the daughter of Zakir
Ali Ahmed. The caste/tribe validity was issued to Ashfaq Ahmed by the
Scrutiny Committee in 1992. The only reason assigned by the Caste
Scrutiny Committee that said validity was issued to the paternal uncle of
the petitioner namely Ashfaque Ahmed prior to the decision of the
Hon'ble Apex Court in the case of Madhuri Patil. The Caste Scrutiny
Committee came to the conclusion that the petitioner could not prove
her affinity as well as her caste. The Committee has also observed that
there is a scoring in the Dakhal Kharij register in front of the name of her
grandfather as it shows that the caste of her grandfather was recorded in
blue ink whereas other entries in the Dakhal Kharij register are in a
black ink. Thus, it is held by the Committee that there is interpolation in
the Dakhal Kharij register and the document on which the petitioner
relied upon is doubtful and accordingly the validity certificate was not
issued to her.
10. The findings recorded by the Caste Scrutiny Committee only
on the ground that there is interpolation in the Dakhal Kharij register in
respect of entry of the caste of the grandfather of the petitioner. The
report of the Vigilance Committee is also on record which shows that
during vigilance, Vigilance Committee had collected the school record of
the petitioner, her father, her siblings as well as her grandfather. The
Vigilance Committee also recorded that they have recorded the
statements of the neighbors wherein the petitioner is residing as well as
her native place Walgaon, District Amravati and it reveals to them that
the petitioner and her forefathers belong to 'Chapparband'. Thus, the
Vigilance Committee nowhere recorded contrary findings. There is no
reference in Vigilance report in respect of the scoring in Dakhal Kharij
register in respect of the entry of grandfather of the petitioner. The
Scrutiny Committee had observed that the petitioner relied upon the
school leaving certificate of her grandfather, therefore, the Committee
had called original Dakhal Kharij register. Said register was written in
the Urdu language. The Head Mistress by name Parvin Bano Kabir
Raheman Qureshi had translated the same in the Marathi language
before the Committee. It reveals to the Committee that in respect to the
entry of the grandfather of the petitioner, the caste entry was recorded
in a different ink and, therefore, said document is doubtful. On the
ground that the validity issued to the paternal uncle was prior to the
decision of Madhuri Patil and there is scoring in Dakhal Kharij register
regarding the caste entry of the grandfather of the petitioner, the Caste
Scrutiny Committee rejected the claim of the petitioner.
11. Learned Counsel for the petitioner relied upon two decisions
of this Court i.e. Ku. Nayan d/o Bhaskar Chouke (supra) and Ku. Pallavi
d/o Rajendra Dardemal (supra). Learned Counsel referred paragraph
No.10 of the judgment of Ku. Pallavi d/o Rajendra Dardemal (supra)
and submitted that this Court in the case of Gitesh s/o. Narendra
Ghormare (supra) wherein it is held by this Court that in paragraph
Nos.30 and 31.
"30. It is urged before us that while issuing the caste
validity certificates in the names of the father and other
blood relatives of the petitioner, the Police Vigilance Cell
enquiry was not conducted. Rule 12(2) of the Maharashtra
Scheduled Tribes (Regulation of Issuance and Verification of)
Certificate Rules, 2003 being relevant, is reproduced below :
"12. Procedure to be followed by Scrutiny Committee.
(2) If the Scrutiny Committee is not satisfied with the
documentary evidence produced by the applicant the
Scrutiny Committee shall forward the applications to the
Vigilance Cell for conducting the school, home and other
enquiry."
It is the discretion of the Scrutiny Committee whether
the claim is to be forwarded to the Vigilance Cell for
conducting school, home and other enquiry. If the Scrutiny
Committee is not satisfied with the documentary evidence
produced, then only it can forward the documents to the
Vigilance Cell. But if the Committee records its satisfaction
on the basis of documentary evidence produced and issues a
validity certificate, it cannot question its correctness, legality
or binding nature or finality attached to it under sub-section
(2) of Section 7 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 (Maharashtra Act No.XXIII of
2001) on the ground that the Police Vigilance Cell enquiry
was not conducted. The Committee, in our view, was wrong
in ignoring the caste validity certificates issued in the name
of the father of the petitioner validating his claim for 'Mana
Scheduled Tribe'.
31. This question has been dealt with by the Division
Bench of this Court in the case of Apoorva d/o Vinay Nichale
v. Divisional Caste Certificate Scrutiny Committee No.1 and
others, reported in 2010(6) Mh.L.J. 401. Para 7 of the said
decision being relevant, is reproduced below :
"7. We thus come to the conclusion that when during
the course of enquiry 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 applicant, the Committee may grant such certificate
without calling for Vigilance Cell Report. However, if the
committee finds that the earlier 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."
The relevant portion in para 9 of the said decision is
also reproduced below :
"9. ... In the circumstances, we are of the view that
the committee which has expressed a doubt about the
validity of caste claim of the petitioner and has described it
as a mistake in its order, ought not to have arrived at a
different conclusion. The matters pertaining to validity of
caste have a great impact on the candidate as well as on the
future generations in many matters varying from marriage to
education and enjoyment, and therefore where a committee
has given a finding about the validity of the caste of a
candidate another committee ought not to refuse the same
status to a blood relative who applies. A merely different
view on the same facts would not entitle the committee
dealing with the subsequent caste claim to reject it. There is,
however, no doubt as observed by us earlier that if a
committee is of the view that the earlier certificate is
obtained by fraud it would not be bound to follow the earlier
caste validity certificate and is entitled to refuse the caste
claim and also in addition initiate proceedings for
cancellation of the earlier order. In this view of the matter,
we are of the view that the petition must succeed. Rule is
made absolute in above terms. The Caste Scrutiny Committee
is directed to furnish the caste validity certificate to the
petitioner."
It is not the finding of the Committee that the father
of the petitioner obtained the caste validity certificate by
playing a fraud or that the grant of certificate was without
jurisdiction. On the contrary, the certificates indicate that the
same are issued in view of the decision of the Apex Court in
Civil Appeal No.5270 of 2004. A merely different view on the
same facts in a subsequent case of blood relative would not
entitled the Committee to reject the claim. If the Committee
is permitted to alter or change its view repeatedly, it would
create an anomalous situation that each of the blood relatives
would be of different caste/tribe and finality attached would
become redundant. In our view, therefore, the Committee
ought to have validated the certificate in favour of the
petitioner."
12. In the present case also the Caste Scrutiny Committee had not
considered the earlier validity granted to the family members. The
validity was granted to the real uncle of the petitioner. Dealing with the
validity issued to the uncle of the petitioner, the Caste Scrutiny
Committee observed that it was issued prior to the decision of Madhuri
Patil. In the judgment of Madhuri Patil also the entries in the school
register preceding the Constitution do furnish great probative value to
the declaration of the status of the caste is held. By the said judgment,
the Hon'ble Apex Court issued the guidelines for the issuance of social
status certificate, their scrutiny and their approval. Said judgment
nowhere states that the validity certificate issued prior to the judgment
were invalid. Therefore, the reason assigned by the Caste Scrutiny
Committee appears to be unreasonable one.
13. The Division Bench of this Court in the case of Apoorva d/o
Vinay Nichale Vs. Divisional Caste Certificate Scrutiny Committee No.1
and ors. 2010 (6) Mh.L.J. 401 wherein it is held by this Court that in
paragraph No. 7 :
"7. We thus come to the conclusion that when
during the course of enquiry 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 applicant, the
Committee may grant such certificate without
calling for Vigilance Cell Report. However, if the
committee finds that the earlier 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."
It is further held by the Division Bench that the Committee
by expressing a doubt about the validity of caste claim of the
petitioner and has described it as a mistake in its order, ought not to
have arrived at a different conclusion. The matters pertaining to the
validity of caste have a great impact on the candidate as well as on
the future generations in many matters varying from marriage to
education and enjoyment. A merely different view on the same facts
could not entitle the committee dealing with the subsequent caste
claim to reject it.
14. Here in the present case, the validity certificate was issued to
the real uncle of the petitioner. It is nowhere the contention of the
Committee that the earlier caste certificate is obtained by fraud or is
granted without jurisdiction. As there is no observation that the earlier
caste validity certificate is vitiated by fraud or without jurisdiction, the
Committee cannot refuse to grant certificate to the petitioner. As
observed above, in the present case, the Committee nowhere observed
that the uncle of the petitioner had obtained caste validity certificate by
playing fraud or that grant of certificate was without jurisdiction. On
the contrary, it is evident that the validity certificate granted to the real
uncle was on the basis of the school leaving certificate of grandfather of
the petitioner on which the petitioner is also relied upon.
15. The other reason assigned by the Scrutiny Committee is that
there is interpolation in the Dakhal Kharij register in respect of the caste
of the grandfather of the petitioner. The Committee had obtained the
original Dakhal Kharij register and observed that the entry regarding the
caste in front of the name of the grandfather of the petitioner is in a
different ink whereas other entries are in a different ink, therefore, the
document on which the petitioner relied upon became doubtful. The
Scrutiny Committee had recorded the statement of the Head Mistress
who is not the author of the document. Admittedly, the grandfather of
the petitioner is not alive. Author or custodian of the document was not
examined by the Caste Scrutiny Committee. It only reveals to the
Committee that the caste of the grandfather of the petitioner was written
in a different ink. In Sayanna Vs. State of Maharashtra and ors. (2009)
10 SCC 268 wherein it is held that in the Vigilance report it is recorded
that in school records word 'lu' was subsequently added. Held this by
itself does not indicate interpolation in school record. The Vigilance
report not based on any credible evidence. The decision of the Scrutiny
Committee to cancel and confiscate the caste certificate based on
irrelevant considerations and non-consideration of relevant
considerations hence liable to be set aside. It is held by the Hon'ble
Apex Court that it is difficult to understand as to on which basis the
Scrutiny Committee came to the conclusion that the word 'lu' was
interpolated in the register of the school. More particularly when it was
not so opined by the Police Inspector who had conducted the enquiry.
Whether interpolation by addition has taken place can be stated by a
handwriting expert or by comparison of admitted letters of a person with
this disputed one. It is an admitted position that the Scrutiny Committee
had never attempted to get an Expert's opinion nor itself had compared
the disputed letters with admitted one of the appellant. Under the
circumstances, the finding recorded by the Scrutiny Committee that the
word 'lu' was interpolated will have to be regarded as not based on any
credible evidence.
16. Here in the present case also though the Scrutiny Committee
relied upon the Dakhal Kharij register and the statement of the Head
Mistress which shows that the entry regarding the caste of the
grandfather of the petitioner was recorded in a different ink. However,
the author of the document was not examined by the Caste Scrutiny
Committee to ascertain the facts. Moreover, custodian of the said
document or any expert was not examined, therefore, the observation of
the Caste Scrutiny Committee appears to be not based on any credible
evidence. The petitioner had explained the circumstances. Admittedly
the school record was lying with the school authorities and the petitioner
had no opportunity whatsoever to tamper with the same. Therefore, the
observation of the Caste Scrutiny Committee while rejecting the claim of
the petitioner is illegal. The Vigilance Committee had not observed
regarding the interpolation. The Vigilance report shows that from the
statements of the neighbors and the family members show that the
petitioner and her forefathers belong to 'Chhaparband'. Thus, the
documents on which the petitioner had relied on and the validity issued
to the family members is sufficient to held that the petitioner belongs to
'Chhaparband'. As already observed that the contention of the Caste
Scrutiny Committee that the petitioner had failed to prove the caste
claim and the documents which had interpolated is not substantiated by
any credible evidence. The entry in the name of her grandfather which
is of pre-independence era shows that he was recorded as
'Chhaparband'. The sum and substance of the entire material on record
shows that the entry in the name of the grandfather has great probative
value and is sufficient to show that the petitioner belongs to
'Chhaparband' tribe. Therefore, the order passed by the Caste Scrutiny
Committee is illegal, illogical and liable to be set aside. Hence, writ
petition deserves to be allowed. In the result, we proceed to pass the
following order :
(a) The writ petition is allowed.
(b) The Order dated 20/08/2019 passed by the
Scheduled Tribe Caste Scrutiny Committee, Amravati is
hereby quashed and set aside.
(c) It is declared that the petitioner namely Asra Fatema
d/o Zakir Ali Ahmed belongs to 'Chhaparband' (de-notified
tribe).
(d) The Caste Scrutiny Committee shall issue the validity
certificate to the petitioner within a period of six weeks
from the receipt of copy of this judgment.
17. Rule is made absolute in the aforesaid terms. There will be
no order as to costs.
(URMILA JOSHI-PHALKE, J.) (A.S. CHANDURKAR, J.)
*Divya
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:13.10.2022 17:14
