Bombay High Court
Vishal Popat Sapkale vs Schedule Tribe Certificate Scrutiny ... on 22 December, 2023
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2023:BHC-AUG:27247-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 13653 OF 2023
Vishal s/o Popat Sapkale
Age: 30 years, Occu: Service,
R/o At Post Sunode,
Tq. Raver, Dist. Jalgaon. ... PETITIONER
V/s.
1. Schedule Tribe Certificate Scrutiny
Committee, Dhule
through its Member Secretary.
2. Superintendent of Police,
Police Superintendent Office,
Jalgaon through its Commissioner.
3. Rahul Sukhdeo Chavan,
Age: 28 yrs, Occ: Unemployed,
R/o Tadepura Dharangaon Road,
Pardhiwada, Amalner,
Tq. Amalner, Dist. Jalgaon. ... RESPONDENTS
...
Mr. Mahesh P. Deshmukh, Advocate for the Petitioner
Mr. P.K. Lakhotiya, AGP for Respondent-State
Mr. Y.B. Bolkar h/f. A.B. Girase for Advocate for Respondent No.3
...
CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
RESERVED ON : 4th December, 2023
PRONOUNCED ON : 22nd December, 2023
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JUDGMENT (Per: Y.G. Khobragade, J.) :
-
1. Rule. Rule made returnable forthwith and heard finally with the
consent of the parties.
2. By the present petition under Article 226 of the Constitution of
India, the Petitioner has prayed for quashing and setting aside of the
Judgment/Order dated 4th October, 2023 passed by Respondent No. 1 i.e.
Caste Scrutiny Committee thereby invalidating the caste claim of the petitioner
being "Tokre Koli" Scheduled Tribe and issuance of directions against
Respondent No. 1 to declare his caste being "Tokre Koli" Scheduled Tribe and to
issue Caste validity certificate in his favour.
3. Brief facts are that the Petitioner belongS to "Tokre Koli" Scheduled
Tribe. On 15.09.2022, the Sub-Divisional Officer, Faizapur, Dist. Jalgaon issued
a "Tokre Koli" Scheduled Tribe, Caste Certificate. In the year 2019, the
Superintendent of Police, Jalgaon conducted recruitment process for the post of
Constable. In pursuance of said advertisement, he submitted his candidature.
After completion of selection process, he was appointed as Police Constable
(Group-2) vide appointment order dated 24.02.2022 against the reserved
Scheduled Tribe category and he is still working on the said post. On
16.09.2022, his Employer i.e. Respondent no. 2 forwarded proposal of his caste
claim for scrutiny to Respondent No.1. He produced all documentary evidence
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in support of his caste claim. Respondent No.1 had called Vigilance Report,
which has was submitted on 08.12.2022. The vigilance cell report was duly
communicated to the Petitioner with show cause notice dated 12.12.2022 with
directions to remain present before the Scrutiny Committee on 29.12.2022
along with explanation, but due to some technical problem, hearing was
adjourned till 05.01.2023, on 05.01.2023 time was sought to file reply. On
19.01.2023, a detailed reply to the Vigilance Cell report was filed, but hearing
was postponed on various dates due to technical reasons. On 10.08.2023, he
along with his counsel appeared before the Respondent No.1 and had sought
time to file reply on documents given to him during the course of hearing and
matter was postponed on 28.08.2023, but again hearing was adjourned to
31.08.2023). Lastly, on 13.09.2023, his counsel sought adjournment, but it was
rejected and matter was closed for orders. On 04.10.2023, the Respondent
No.1 - Scrutiny Committee passed the impugned order thereby invalidating his
Scheduled Tribe caste claim on the ground that the Petitioner failed to produce
corroborative documents to prove affinity test and no validity certificate of his
blood relatives were produced to support to his caste claim.
4. Mr. Mahesh S. Deshmukh, the learned advocate appearing for the
Petitioner vehemently canvassed that the Petitioner submitted various pre-
independence era documents of his blood relatives viz., birth registration
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certificates in respect of Narmada Ganu Sapkale, the real sister of his grand-
father, who was born on 16.02.1936, birth certificate of Shri Raghunath
Sapkale, the cousin grand-father who was born on 01.02.1938, birth certificate
of Shri Dashrath Ganu Sapkale, real grand-father who was born on 03.03.1950,
birth certificate of Shri Ramkrushna Vithu, the cousin grand-father who was
born on 06.06.1932, birth certificate of Shri Supudu Totaram Sapkale, the
cousin grand-father who was born on 01.06.1946, birth certificate of his father
Shri Popat Dashrath Sapkale, who was born on 01.06.1977 and extract of
School Register entry dated 03.06.2000, however, Respondent No.1 failed to
consider the said documentary evidence as well as the reply to the Vigilance
Cell report and invalidated the caste claim of the Petitioner, which is illegal, bad
in law and hence, prayed for quashing and setting aside the impugned order.
5. The learned advocate for the Petitioner further canvassed that, on
10.08.2023, the Petitioner with his advocate duly appeared before Respondent
No.1 and had sought time to file reply on the documents provided to the
Petitioner during the course of hearing. The matter was postponed to
28.08.2023 and thereafter to 31.08.2023 and lastly on 13.09.2023, the
Petitioner sought time. But the said request was rejected and the matter was
abruptly closed for orders. Therefore, Respondent No.1 failed to give a
reasonable opportunity of hearing to the Petitioner and passed the impugned
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order. Hence, it is violation of the principles of natural justice. Therefore,
prayed for quashing and set aside the impugned order.
6. Per contra, Mr. P. K. Lakhotiya, the learned Assistant Government
Pleader appearing for the Respondent Nos.1 & 2 submits that the Vigilance Cell
Officer has intensely scrutinized the birth records produced by the Petitioner
and collected relevant documents to verify the genuineness and authenticity of
the documents relied upon by the Petitioner. There are contra entries in the old
documentary record in respect of caste of the Petitioner. So also, the affinity
test does not prove caste claim of the Petitioner. Hence, prayed for dismissal of
the petition.
7. Adv. Y.B. Bolkar, the learned counsel appearing for Respondent
No.3, orally submitted that in selection process of Police Constable, the
Petitioner and Respondent No.3 were selected under Scheduled Tribe category.
The name of the Petitioner was enlisted at Sr. No. 1 and Respondent No.3 was
kept at sr. no.1 on the waiting list. However, after the selection process, in
order to ascertain whether the Petitioner belongs to Scheduled Tribe or not,
Respondent no. 3 solicited Caste Certificate of the Petitioner which was issued
under outward No.MAG/ WS/ ST/ 1693/2010 dated 23.05.2010 from the
office of Divisional Officer, Jalgaon, but the said Caste certificate was fabricated
and found to be bogus which has been submitted for scrutiny before
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Respondent No.1. Therefore, vide order dated 01.08.2022, Respondent No.1
confiscated the said Certificate on the ground of a spelling mistake in the Caste
Certificate "Tokare Koli" instead of "Tokre Koli" and the Petitioner was directed
to obtain a fresh Caste Certificate. However, the Petitioner obtained another
Caste Certificate from the Office of Sub-Divisional, Faijapur, through online
process on 14.09.2022, which was submitted for the scrutiny. Thereafter,
Respondent No.3 obtained information under the Right to Information Act on
09.11.2022, the information solicited by the Petitioner from the Office of Sub-
Divisional Officer with respect to the date and outward number of the
Petitioner's Caste Certificate, but it was not found in the office record at entry
no. 1693 for the year 2010 and it it does not contain said serial number.
Therefore, the Petitioner committed forgery and secured a Government Job on
the basis of a forged Caste Certificate. Therefore, he prayed for dismissal of the
petition.
8. Having regard to the rival submissions canvassed on behalf of both
the sides, we have gone through the record. It is not in dispute that vide the
appointment order dated 24.02.2022 issued by the Superintendent of Police,
the Petitioner was appointed as a Police Constable (Group-2) against the
reserved category "Scheduled Tribe". Therefore, his Caste claim was referred
for scrutiny to the Respondent No.1. On 16.09.2022, the appointing authority
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of the Petitioner referred the caste claim of the Petitioner for scrutiny. In order
to prove his caste as "Tokare Koli Schedule Tribe", the Petitioner produced
certain documents of his blood relatives viz., birth registration certificates in
respect of (1) Narmada Ganu Sapkale, the real sister of his grand-father who
was born on 16.02.1936. (2) The birth certificate of Shri Raghunath Sapkale,
his cousin grand-father, who was born on 01.02.1938. (3) The birth certificate
of Shri Dashrath Ganu Sapkale, his real grand-father who was born on
03.03.1950. (4) The birth certificate of Shri Ramkrushna Vithu, his cousin
grand-father, who was born on 06.06.1932. (5) The birth certificate of Shri
Supudu Totaram Sapkale, his cousin grand-father, who was born on
01.06.1946. (6) The birth certificate of the Petitioner's father Shri Popat
Dashrath Sapkale, who born on 01.06.1977 and the extract of the School
Register entry dated 03.06.2000.
9. During the course of the Vigilance cell inquiry, the Investigating
Agency collected extract of School Registers pertaining to (1) Narmada Ganu
Sapkale, (2) Shri Raghunath Sapkale, (3) Shri Dashrath Ganu Sapkale (4) The
birth certificate of Shri Ramkrushna Vithu, (5) Shri Supadu Totaram Sapkale,
(6) Shri Popat Dashrath Sapkale, the Petitioner's father and (7) Vishal Popat
Sapkale, the Petitioner himself. The Vigilance Cell Report clearly reveals that,
Narmada Ganu Sapkale is the real sister of Petitioner's grand-father who was
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born on 16.02.1936. However, in reply to the Vigilance Cell Report at Exh.D,
the Petitioner denied his blood relation with Narmada Ganu Sapkale and her
name has not been disclosed in the genealogy. The Vigilance Cell report
reflects that Narmada Ganu Sapkale is the real sister of Dashrath Ganu Sapkale,
the real sister of the grandfather of the Petitioner. The Petitioner failed to
bring sufficient material on record to disprove the relationship between
Narmada Ganu Sapkale and his real grand-father Shri Dashrath Ganu Sapkale.
10. It is needless to state that the Vigilance Cell collected School
Register and Birth entry extracts of the Petitioner's forefathers. The entries in
birth extract of forefathers of the Petitioner is mentioned as "Hindu Koli",
"Hindu Suryavanshi Koli", "Hindu other backward" and "Hindu Koli Special
Other Backward". The Vigilance Cell submitted the report, which does not
prove that the Petitioner belongs to "Tokare Koli Scheduled Tribe". The
Petitioner was served with the show cause notice dated 12.12.2022 along with
the copy of Vigilance Cell Report calling upon him to submit his explanation.
Accordingly, the Petitioner submitted his explanation on 24.11.2022, but the
Petitioner has not countered the report of the Vigilance Cell and no
documentary evidence was brought on record to prove that he belongs to
Tokare Koli, Scheduled Tribe. It is well settled that, an affinity test is not a
litmus test, and certainly, the documentary evidence would prevail over the so-
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called affinity test as laid down in case of Saurabh Ashok Nikam V/s. State of
Maharashtra & Anr. in Writ Petition No. 241 of 2022, decided on 06.01.2022.
11. The Petitioner has mainly relied on the following birth entries
record as under:-
Sr. Description of Name of Person on Blood Relation Entry of Caste Date of
No Document the Document with the Entry
Applicant
1 School Record Ramkrushna Vithu Cousin grand- Hindu Koli 06.06.1932
Koli father
2 School Record Narmada D/o Ganu Sister of Hindu 17.06.1942
Sapkale Grandfather Suryavanshi Koli
3 School Record Raghunath Vithal Cousin Hindu Koli 19.07.1944
Sapkale Grandfather
4 School Record Dashrath Ganu Grandfather Hindu Koli 03.03.1950
Sapkale
5 School Record Supudu Totaram Cousin Hindu 01.06.1955
Sapkale Grandfather Suryavanshi Koli
6 School Record Popat Dashrath Father Hindu OBC 13.06.1977
Sapkale
7 School Record Vishal Poat Sapkale Applicant Hindu Koli Spl. 03.06.2000
(Petitioner) Backward
12. It is an admitted fact that, the petitioner has not produced even a
single caste validity certificate of his blood relatives. Though, the Petitioner
submitted that he belongs to Tokare Koli recognized as Scheduled Tribe,
however, the Petitioner has not given any satisfactory reasons, as to how,
"Hindu Koli", "Hindu Suryavanshi Koli", "Hindu other backward Caste" were
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recorded in birth entries of his forefather. Therefore, Respondent No.1 opined
that the Petitioner did not belong to Tokare Koli, Scheduled Tribe.
13. In the case of Anand V/s. Committee for Scrutiny and Verification
of Tribe Claims and Ors.; (2012) 1 SCC 113, the Hon'ble Apex Court has
observed in para No. 22 as under:
"22. It is manifest from the afore extracted paragraph that
the genuineness of a Caste claim has to be considered not
only on a through examination of the documents submitted
in support of the claim but also on the affinity test, which
would include the anthropological and ethnological traits,
etc., of the applicant. However, it is neither feasible nor
desirable to lay down an absolute rule, which could be
applied mechanically to examine a Caste claim.
Nevertheless, we feel that the following broad parameters
could be kept in view while dealing with a Caste claim:
(i) While dealing with documentary evidence, greater
reliance may be placed on pre-Independence documents
because they furnish a higher degree of probative value to
the declaration of status of a Caste as compared to post-
independence documents. In case the applicant is the first
generation ever to attend School, the availability of any
documentary evidence becomes difficult, but that ipso facto
does not call for the rejection of his claim. In fact, the mere
fact that he is the first generation ever to attend School,
some benefit of doubt in favour of the applicant may be
given. Needless to add that in the event of doubt on the
credibility of a document, its veracity has be be tested on
the basis of oral evidence, for which an opportunity has to
be afforded to the applicant".
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14. After having gone through the records, we find that the School
Admission Register, the birth entries were mainly relied upon by the Petitioner.
The record reveals that many entries in the birth register made in the names of
the blood relatives of the Petitioner as "Hindu Koli", "Hindu Suryavanshi Koli",
"Hindu other backward Caste". The details have been dealt with by the
Vigilance report.
15. In the case of State of Maharashtra V/s. Milind and others; 2001
(1) SCC 4, the Hon'ble Apex Court has held as:
"1. It is not at all permissible to hold any enquiry or let in any
evidence to decide or declare that any tribe or tribal community or
part of or group within any tribe or tribal community is included in
the general name even though it is not specifically mentioned in the
concerned Entry in the Constitution ) Scheduled Tribes) Order,
1950.
2. The Scheduled "Tribes Order must be read as it is. It is not
even permissible to say that a tribe, sub-tribe, part of or group of any
tribe or tribal community is synonymous to the one mentioned in
the Scheduled Tribes Tribes if they are not so specially mentioned
in it."
16. It is submitted that, the entries from the birth and death register
would prevail over the School register entries. In the case of CIDCO V/s.
Vasudha Mandevlekar; (2009) 7 SCC 283, the Hon'ble Apex Court held in
paragraph no. 18 that, the death and birth register maintained by the Statutory
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Authorities raises a presumption of correctness. Such entries made in the
statutory registers are admissible in evidence in terms of Section 35 of the
Indian Evidence Act. It would prevail over an entry made in the School
Register, particularly in the absence of any proof that the same was recorded at
the instance of the guardian of the Respondent.
17. The caste of the Petitioner's cousin grand-fathers namely
Ramkrushna Vithu Koli, Raghunath Vithal Sapkale and Petitioner's real
grandfather Shri Dashrath Ganu Sapkale, as per the birth register is shown as
"Hindu Koli". The Caste of cousin sister of Petitioner's grandfather is recorded
as "Hindu Suryavanshi Koli". These entries are pre-independence. The caste of
the Petitioner's father is recorded as "Hindu Other Backward Class", however,
for first time the caste of the Petitioner is shown as "Hindu Koli, Special
Backward".
18. A detailed discussion of facts and law lead us to arrive at the
conclusion that the birth entries would prevail over the entries in the school
registers. The Petitioner failed to prove his Caste as Tokare Koli, Scheduled
Tribe as recorded in his caste certificate issued by the Sub-Divisional Officer,
Faijapur, Dist. Jalgaon. Nonetheless, the caste certificate which was issued in
favour of the Petitioner bearing outward No. MAG/ WS/ ST/ 1693/2010 dated
23.05.2010 by the Divisional Officer, Jalgaon was found to be fabricated and
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bogus by Respondent No.1. Therefore, vide order dated 01.08.2022,
Respondent No.1 confiscated the said fabricated and bogus certificate and the
Petitioner was directed to obtain a fresh caste certificate. However, the
Petitioner obtained another caste certificate from the Office of Sub-Divisional,
Faijapur, through the online process on 14.09.2022, which resulted in it's
invalidation. The Petitioner failed to produce any substantial documents to
prove his caste claim "Tokre Koli Scheduled Tribe". The findings recorded by
the Scrutiny Committee are well founded on documentary evidence. Thus, it is
not permissible for this Court to interfere with such findings of facts in our Writ
jurisdiction. No interference is thus warranted.
19. In view of the above discussion, the present petition is hereby
dismissed. Accordingly, Rule is discharged. No orders as to costs.
20. After the judgment was pronounced, the learned Advocate for the
Petitioner sought continuation of the interim order.
21. The learned Advocate for the added Respondent No.3 and the
learned AGP submit that ad-interim protection was granted on 01.11.2023 upto
28.11.2023. Moreover, the Petitioner has been appointed on 24.02.2022 as a
constable and he is on probation.
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22. In view of the above and considering the conclusions drawn by us
with regard to the conduct of the Petitioner, the request for continuation of the
interim order is refused.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
