Bombay High Court
Aishwarya Shesharao Kabade And ... vs The State Of Maharashtra And ... on 3 March, 2023
Bench: V. V. Kankanwadi, Y. G. Khobragade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.111 OF 2021
1 Aishwarya Shesharao Kabade,
Age 20 yrs., Occ. Student,
R/o At Post Togari, Tq. Udgir,
Dist. Latur.
2 Asavari Shesharao Kabade,
Age 18 yrs., Occ. Student,
R/o At Post Togari, Tq. Udgir,
Dist. Latur.
... Petitioners
... Versus ...
1 The State of Maharashtra
Through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai.
2 The Scheduled Tribe,
Caste Certificate Scrutiny,
Aurangabad Division, Aurangabad.
3 Commissionerate Common Entrance Test
Cell, Mumbai 8th Floor, New Excelsior Building
A.K. Nayak Marg, Fort, Mumbai - 400 001.
... Respondents
...
Mr. A.B. Kale, Advocate h/f Mr. S.R. Avhad, Advocate for petitioners
Mr. S.B. Yawalkar, AGP for respondent Nos.1 and 2
...
::: Uploaded on - 04/03/2023 ::: Downloaded on - 04/03/2023 19:06:59 :::
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CORAM : SMT. VIBHA KANKANWADI
Y.G. KHOBRAGADE, JJ.
RESERVED ON : 17th OCTOBER, 2022
PRONOUNCED ON : 03rd MARCH, 2023
JUDGMENT : (PER : SMT. VIBHA KANKANWADI, J.)
1 Rule. Rule made returnable forthwith. Heard learned Advocates
for the parties finally, by consent.
2 The petitioners by invoking the inherent powers of this Court
under Article 226 of the Constitution of India challenges the order passed by
respondent No.2 Scrutiny Committee, Aurangabad on 20.11.2020, thereby
invalidating their tribe claim as belonging to "Koli Mahadev".
3 The facts leading to the petition are that the petitioners are
sisters. Their father had applied for caste claim as they were minor at that
time. It was with an intention that they should possess the certificate of 12 th
standard as well as NEET examination and thereby that would be helpful in
seeking admission for the medical course to petitioner No.1. Petitioner No.1
secured 281 marks in NEET examination and as per the merit list she was
allotted the respondent No.3 Dental college. As regards the petitioner No.2 is
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concerned, she appeared for CET examination to secure admission for Law
course and such certificate would be necessary for her admission to the
Government Law College. The petitioners had submitted voluminous
documentary evidence to support their claim. The oldest record of their
grandfather Hanmant Gangaram Kabade was of 1349 Fasali, wherein his
caste is shown as "Koli Mahadev". The tribe claim of the father of the
petitioners was forwarded to the Scrutiny Committee and after holding due
scrutiny the validity certificate was issued to their father on 28.04.2006.
Earlier also the petitioner No.1 had approached this Court by filing Writ
Petition No.6521 of 2020 for directions that the Scrutiny Committee should
decide her tribe claim in a time bound manner. After the directions were
given by this Court the petitioner was served with inquiry report and the
show cause notice dated 20.10.2020. When in fact, the validity certificate
was already issued to the father there ought not to have been a separate
inquiry in respect of daughters. Still the inquiry was held. Though some
discrepancies are stated to have been noticed, it cannot be said that they
were made by the petitioners. The approach of the Scrutiny Committee was
wrong, so also it was not required for the Scrutiny Committee to reconsider
the papers of issuing validity certificate to their father. The Scrutiny
Committee has unnecessarily placed much reliance on the decision in Kumari
Madhuri Patil and another vs. Additional Commissioner, Tribal Development
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and others reported in AIR 1995 SC 94 when in fact, though such powers are
available to the Committee, they are required to be used in judicious manner.
The petitioners, therefore, contend that the impugned order is illegal and
contrary to the provisions of law. They, therefore, pray for the setting aside
the impugned order and directions to issue validity certificate in their favour.
4 The petition has been objected by respondent Nos.1 and 2 and
he supports the reason given by the Scrutiny Committee. He is also heavily
relying upon Ku. Madhuri Patil (supra) under which Hon'ble Apex Court has
held that no person should unnecessarily receive the benefits under the
pretext of similarity in the caste name. It is further submitted on behalf of
the Government that each and every document was considered by the
Scrutiny Committee and in many documents it can be seen that either word
"egknso" or word "e" has been written subsequently and the ink differs.
Therefore, those documents can be said to have been tampered just to get
benefit. The original file is made available in respect of both the girls. The
petitioners have failed in affinity test. The petitioners ancestors are stated to
be residing at village Togari, Tq. Udgir, Dist. Latur, which is not the place
from where persons from 'Koli Mahadev' tribe were traditionally residing.
The validity that was given to the father of the petitioners was based on false
and fabricated documents and thus, it can be said that the said validity was
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obtained by fraud. When the fact of playing fraud on the Committee has
been transpired, then definitely the Committee has powers to take up the
proceedings to recall its earlier order. Reliance has been placed by the
Committee on the decision in Rajeshwar Baburao Bone vs. State [Writ
Petition No.5160 of 2020] and therefore, the Committee decided to issue
show cause notice to the father of the petitioners and hearing upon him the
decision would be taken in respect of recalling. If now the present petition is
allowed, it would affect the entire procedure in respect of review undertaken
in respect of the caste validity certificate issued to the father of the
petitioners. Learned AGP has relied on the affidavit of Laxman Vitthalrao
Dapke, who is serving as Headmaster to the Zilla Parishad Primary School,
Togari, Tq. Udgir, Dist. Latur, wherein he has stated that the original record
shows the word ^e^ is subsequently added in different ink and handwriting in
respect of the entries of the admission in respect of Kishan Hanmant Koli and
Shivaji Maruti Koli. The said documents are perused by this Court. Learned
AGP points out that the review petition in respect of validity issued to one
Sunita Ganpatrao Kabade in the year 2020, in which the review of Judgment
and order dated 11.08.1994 passed by this Court in Writ Petition No.2451 of
1994 is prayed. He has also submitted that similarly the review petition
would be then filed by the Government in respect of review of the order
passed granting validity to the father of the petitioners.
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5 At the outset, we would like to take a brief account of the old
documents, which were available before the Committee. Shesherao
Hanmantrao Kabade, who is the father of the petitioners had received caste
certificate on 28.05.1990. His validity certificate was granted on 28.04.2006.
The petitioners had provided the admission register of their father to the
school dated 17.06.1985, school leaving certificate dated 28.06.1978 and
29.09.1993 and photo copy of his service book 28.05.1990. These were the
documents in respect of their father and as regards grandfather is concerned,
there was Urdu document stating that Hanmant Gangaram Kabade i.e.
grandfather of the petitioners had taken admission in the school on
25.08.1949 Fasli. It is told that said Urdu year is equivalent to 1939 as per
Gregorian calendar. Thereafter there are documents in the form of school
admission register of cousin brothers and sister dated 19.06.1984,
16.06.1996, 24.06.1998 respectively. All these documents show the tribe as
"Koli Mahadev" and admittedly there is no interpolation or rewriting over the
same except in admission/school leaving certificate of father dated
28.06.1978. It is said that there is insertion of word "egknso" or "e" in the
documents dated 02.07.1964 and 15.08.1965, which were in respect of
cousin grand father and paternal uncle. Even if we brushed aside these
documents, there was sufficient evidence which had no changes on the face
of it raising any doubt.
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6 Learned Advocate appearing for the petitioners is placing
reliance on the decision in Apoorva Vinay Nichale vs. Divisional Caste
Certificate Scrutiny Committee No.1 and others reported in 2011 (2) Bom.
C.R. 824 for the following observations.
"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."
7 Interesting point to be noted is that the impugned order says that
the Committee had called for the original file of the validity certificate issued
to the father of the petitioners. Learned AGP could not point out the
provisions under the Law under which calling for the original file of the
earlier validity certificate when there was no complaint about playing any
fraud upon the then Committee is made; such calling of the record can be
supported. Therefore, we find that calling of the said original documents
when there was absolutely no reason or complaint was illegal and
unjustifiable act. In order to arrive at a conclusion that there is a fraud,
either there has to be a complaint or on the face of the record the Committee
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should find out that such fraud was played. If it is to be interpreted, where
the Committee wants that it can take out the old files of those persons to
whom the validity is granted, then it will lead to the chaos and rampant
uncontrolled powers to the Committee. The present Committee cannot sit
over the decision by the earlier Committee as if an Appellate Authority and
then on its own review the decision. The earlier Committee would have also
arrived at, as the presumption has to be raised, that such validity certificate
would have been issued after adopting due procedure of law, then such due
procedure cannot be allowed so to be discarded by the subsequent
committee.
8 As regards the alleged corrections or interpolations or insertions
are concerned, though the affidavit of the Headmaster Laxman Dapke has
been produced, he does not dispute that those documents are old. The
natural custodian of those documents was his own school. Who has made
those interpolations or insertions has not been investigated or inquired by the
Scrutiny Committee. Those documents were definitely not in the custody of
the present petitioners, their father or any other relative. Therefore, the
petitioners cannot be blamed for those interpolations or insertions. It would
have been within the powers of the Scrutiny Committee to direct an inquiry
to be made by the Vigilance Cell as to who has made those interpolations or
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insertions. Without undertaking that exercise Committee cannot blame the
petitioners and keep them away from grant of validity. Very recently in Asra
Fatema d/o Zakir Ali Ahmed vs. State of Maharashtra and another in Writ
Petition No.920 of 2021 decided on 13.10.2022 this Court, Bench at Nagpur
has also held that in absence of such investigation as to who has done an
interpolation, the Vigilance Cell cannot be said to be based on any credible
evidence and could not have been relied upon by the Scrutiny Committee.
The said case is also relied by this Court in Suryanarayan Anand Katewar vs.
State of Maharashtra and others in Writ Petition No.11964 of 2021 decided
on 21.10.2022.
9 The oldest document was of 07.11.1349 Fasali and it has been
got confirmed that it is 1939 as per the Gregoran calendar. Though the said
document was before the Scrutiny Committee, the impugned order has
discarded the same on some flimsy ground and without any evidence it has
arrived at a conclusion that all the entries are in one handwriting. The
distance between village Chera and Togari is about 20 - 25 k.ms. Nobody
was residing at village Chera, then got prepared by the petitioners with the
help of school management, are the observations. The order does not reflect
as to whether the said school authorities were called upon to make any
explanation. The Committee should have considered the situation in the year
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1939. The distance at that time was more, but still admission was taken.
Therefore, there was absolutely no reason for the Committee to make such
kind of observations without undertaking any investigation or inquiry.
Similarly, copy of the another document which is stated to be the mortgage
deed in Urdu which was of the year 1362 Fasli i.e. 1952, the Committee on
its own whims has directly concluded that it is a fake document. Even the
original was taken in custody by the Committee and then it is stated that in
view of some erasers the Committee has taken decision to send it for the
opinion of the handwriting expert. If that decision was taken, then why the
Committee had not waited for that decision to come. Therefore, the decision
now based appears to have taken in haste, which cannot be allowed to be
sustained.
10 There were other documents also which were more than 20
years old and ranging till 1939 and still for some unreasonable grounds the
validity appears to have been rejected in respect of both the petitioners and
unnecessarily observations are made in respect of taking up the steps for
review of the validity certificate issued to the father. In fact, in view of
Apoorva Nichale (supra) there was absolutely no necessity for the Committee
to order the re-inquiry or to have Vigilance Cell report circulation. We do not
agree with the submissions on behalf of the Government that the decision of
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this case would come in the process of the review petition. The first and the
foremost fact is that in spite of the said decision by the Committee on
20.11.2020 till the matter was heard no steps were taken for filing of review
petition. It has not been pointed out how Sunita Ganpatrao Kabade and
Subhash Ganpatrao Kabade are related. If they want to rely on the family
tree which was before the Vigilance Cell, then Subhash appears to be uncle of
Shesherao i.e. the father of the petitioners. However, it is to be noted that in
the Vigilance Cell Report apart from Subhash it was also written that one
Balaji Ramesh Yamalwar, who is the real cousin of the petitioners, was also
given validity certificate by the same Scrutiny Committee. The Scrutiny
Committee is not making any kind of whisper in respect of a validity
certificate issued by it to Balaji Yamalwar.
11 Another uncle of father of petitioners viz. Shivaji Ganpatrao
Kabade was issued validity certificate on 09.07.1991 and the copy of the
certificate of validity was also produced. At the costs of repetition, it has to
be observed that the Scrutiny Committee has not followed the decision in
Apoorva Nichale (supra).
12 In catena of Judgments it has been held by this Court as well as
Hon'ble Apex Court that failure of the petitioners to the affinity test is not the
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sole criteria to reject the certificate though in Madhuri Patil (supra) case of
Subhash Ganpatrao Kabade was referred and it was relied by the side of the
appellant therein, no force was found in the contention by the Apex Court.
However, on the facts of the case the procedure that can be followed for
issuance of a social status certificate, their scrutiny and approval was laid
down in Madhuri Patil (supra). Said Subhash Ganpatrao Kabade appears to
be the relative of the present petitioners. However, on the basis of those
observations if the review petitions have been filed, their pendency will not
affect the claim of the petitioners, which can also be considered
independently, and as aforesaid, the two other relatives of the petitioners
have also received the validity certificate, which are not in question as on
today.
13 Therefore, taking into consideration all the documents and the
various decisions cited as well as perusal of the original record the impugned
order passed by the Scrutiny Committee appears to be illegal and illogical,
which deserves to be set aside. Hence, following order.
ORDER
1 The Writ Petition stands allowed.
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2 The impugned common order passed by respondent No.2 -
Scheduled Tribe Certificate Scrutiny Committee, Aurangabad Division,
Aurangabad dated 20.11.2020 is hereby quashed and set side.
3 It is declared that the petitioners belong to "Koli Mahadev"
Scheduled Tribe.
4 Respondent No.2 - Scheduled Tribe Certificate Scrutiny
Committee, Aurangabad is directed to issue validity certificate to petitioners
within a period of six weeks from the receipt of the copy of this order.
5 Rule is made absolute in the aforesaid terms.
6 Pending civil application, if any, stands disposed of.
7 No order as to costs.
(Y.G. Khobragade, J.) ( Smt. Vibha Kankanwadi, J. )
agd
