Bombay High Court
Shubham Dhondiba Konkewar And Another vs The State Of Maharashtra And Others on 5 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:17111-DB
1 WP / 14851 / 2019+
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 14851 OF 2019
1] Shubham S/o Dhondiba Konkewar,
Age : 22 years, Occu : Student,
R/o. Karadkhed, Tq. Degloor,
Dist. Nanded
2] Prasad S/o Sanjay Konkewar,
Age : 18 years, Occu. Student,
R/o. Karadkhed, Tq. Degloor,
Dist. Nanded .. Petitioners
Versus
1] The State of Maharashtra,
Through : Director of Medical Admn.,
Mumbai - 32.
2] Scrutiny Committee for Scheduled Tribes,
Through : Vice Chairman, Aurangabad
Through its Member Secretary, Aurangabad
3] Commissioner & Competent Auyhority
Maharashtra CET Cell, Govt. Of Mahaashtra,
8th Floor, New Exceeelsior Building,
A.K. Nayak Marg, Fort, Mumbai - 001
[Respondent no. 3 Deleted as per Court's
Order dated 10-12-2019] .. Respondents
WITH
WRIT PETITION NO. 3267 OF 2020
1] Vaibhav S/o Madhavrao Konkewar,
Age : 20 years, Occu. Student,
R/o. Karadkhed, Tq. Degloor,
Dist. Nanded
2] Mayur S/o Madhavrao Konkewar,
Age : 18 years, Occu. Student,
R/o. Karadkhed, Tq. Degloor,
Dist. Nanded .. Petitioners
Versus
2 WP / 14851 / 2019+
1] The State of Maharashtra,
Through : Director of Medical Admn.,
Mumbai - 32
2] Scrutiny Committee for Scheduled Tribes,
Through Vice-Chairman, Aurangabad
Through its Member Secretary, Aurangabad
3] Commissioner & Competent Authority
Maharashtra CET Cell, Govt. of Maharashtra,
8th Floor, New Exceeelsior Building,
A.K. Nayak Marg, Fort, Mumbai - 001
4] The Swami Ramanand Teerth Marathwada
University, Vishnupuri, Nanded
Through its - Registrar
5] S.G.G.S. Institute of Technology,
Vishnupuri, Nanded, Tq. & Dist. Nanded,
Through its - Director .. Respondents
WITH
WRIT PETITION NO. 12480 OF 2023
Someshwar S/o Rukhmaji Konkewar,
Age : 51 years, Occu. Service,
R/o, Karadkhedwadi, Tq. Degloor,
Dist. Nanded .. Petitioner
Versus
1] The State of Maharashtra,
Through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai
2] The Scheduled Tribe Caste Certificate
Verification Committee Kinwat
Head Quarter at Aurangabad,
Through its Dy. Director (R),
Dist. Aurangabad
3] The Assistant Commissioner,
Social Welfare Nanded
Tq. & Dist. Nanded
4] The Secretary,
Balak Shikshan Prasarak Mandal,
Marwali Tanda, Tq. Naigaon (Kh).
Dist. Nanded
3 WP / 14851 / 2019+
5] The Head Master,
Primary Ashram School,
Marwali Tanda, Tq. Naigaon (Kh),
Dist. Nanded .. Respodents
...
Advocate for petitioner (WP/ 14851/2019 and WP/3267/2020) : Mr. O.B. Boinwad
Advocate for petitioner (WP/12480/2023) : Mr. S.M. Vibhute
Addl.GP for the respondent - State : Mr. A.R. Kale
Advocate for respondent no. 3 (WP/3267/2020) : Mr. S.G. Karlekar
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
DATE : 05 AUGUST 2024
JUDGMENT (MANGESH S. PATIL, J.) :
Rule. Rule made returnable forthwith. By way of these
separate writ petitions, the petitioners are taking exception to the
judgment and orders of the scrutiny committee in a proceeding under
section 7 of the Maharashtra Act No. XXIII of 2001, to validate their
respective Koli Mahadev scheduled tribe certificates.
2. The impugned order is a common order in the matter of
petitioners from writ petition no. 14851 of 2019 and writ petition no.
3267 of 2020, obviously, as the committee has not raised any dispute
about they being related inter se by blood from the paternal side.
3. Though the petitioner in writ petition 12480 of 2019 is
challenging the order in his matter, ex facie, even there is no dispute
about the fact he is also related to the other petitioners by blood from
the paternal side. Apart from the fact that in both the proceedings, the
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petitioners as also the committee has been relying upon same set of
evidence and since all these petitioners are seeking to derive the
benefit of the validities possessed by the same individuals, with the
consent of both sides, these matters have been taken up for decision
simultaneously and are being disposed of by this common judgment
and order, in order to avoid rigmarole, albeit there is slight difference in
respect of the reasoning assigned in both the judgments.
4. The learned advocate for the petitioners would submit that
there are several validities in the family. Though the committee has
observed that these validity holders had obtained certificates of validity
by resorting to fraud, the committee will have to substantiate such
observations by undertaking a detail enquiry and by following due
process of law, even if it is assumed that the committee has such
power. They would submit that so long as these validities are not
recalled by following due process of law, the petitioners cannot be
deprived of deriving the benefit. They would also submit that the
validities were issued to the validity holders by following due process of
law and for adequate reasons and the benefit of having validity cannot
be denied to the petitioners. The learned advocates would submit that
the petitioners are ready to run the risk of facing the consequences
contemplated in Shweta Balaji Isankar Vs. State of Maharashtra
and others (writ petition no. 6320 of 2017) and may be granted
conditional validities.
5 WP / 14851 / 2019+
5. The learned AGP would strenuously submit that the
committee has elaborately considered the record of the petitioner's
blood relatives which is contrary to the petitioners' claim of 'Koli
Mahadev'. Earlier 'Koli' was included in Other Backward Class
(O.B.C.) and later on in Special Backward Class (S.B.C.). He would
submit that even the committee could trace out manipulation in the
school record. Fraud was practised on the committee by not disclosing
such contrary record. The committee has every right and power to
undertake fresh scrutiny of the validities granted to these validity
holders. Notices have been issued to some of them and the petitioners
cannot be allowed to derive benefit of the fraud perpetrated by their
blood relatives.
6. We have considered the rival submissions and perused
the papers.
7. As has been cursorily observed herein-above, there is no
dispute raised by the committee in either of these judgments under
challenge about the relationship of all these petitioners inter se as well
as their relationship with the validity holders expressly mentioned in the
impugned orders. It is, therefore, imperative for us to undertake a
scrutiny as to if petitioners can be extended the benefit of such
validities in the family, in light of the parameters laid down in
6 WP / 14851 / 2019+
Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. State
of Maharashtra and others; 2023 SCC Online SC 326.
8. There is no dispute about the fact that Bharat Kishanrao
Konkewar was the first validity holder who was issued with a certificate
of validity in the year 1998. The committee in both the impugned
judgments has observed that Bharat had obtained validity concealing
the contrary school record wherein the ancestors of the petitioners
were admitted to the schools by expressly mentioning in the caste
column of the school register that they were 'Koli' right from the year
1954 till the year 1984. In the matter of the other petitioners other than
Someshwar, while undertaking independent scrutiny of validity of
Bharat, it has enlisted such contrary entries and even for the selfsame
reason, validities possessed by Madhav Rukhmaji Konkewar, Anil
Sambhaji Konkewar and Maroti Rukhmaji Wadikar have been refused
to be extended to the petitioners.
9. Needless to state that allegations of fraud is a pure
question of fact which would require a detailed enquiry into the alleged
circumstances which according to the committee, constitute fraud. It
would be imperative that any such decision is taken by issuing notices
to the validity holders and by undertaking due process of law. We do
not feel it appropriate to record any observation in respect of these
circumstances as we are conscious of the fact that the validity holders
7 WP / 14851 / 2019+
are not before us. Any observation made by us could have a bearing
on the enquiries which the committee has decided to undertake in
respect of the validity holders. We, therefore, are of the considered
view that it is better left for the committee to ponder upon the issue and
to take it to the logical end.
10. Unlike what has been stated in Maharashtra Adiwasi
Jamat (supra), the committee in the impugned orders has not made
any observation and even the learned AGP could not objectively
demonstrate before us that Bharat and subsequent validity holders
were issued with certificates of validity without following due process
and without assigning any reason. In the absence of which, the
committee could not have refused to extend the benefit of these
validities in the family to all these petitioners.
11. In this context, it is also necessary to note that one Niraj
Maroti Wadikar (Konkewar) who is the first degree cousin of petitioners
- Vaibhav and Mayur had also faced invalidation. His writ petition
no. 86 of 2005 challenging the order of the scrutiny committee was
dismissed by this Court. He preferred civil appeal no. 7127 of 2008
before the Supreme Court. By order dated 11-06-2010, the appeal was
allowed, the matter was remanded back to the scrutiny committee. The
committee thereafter validated his tribe certificate. It is important to
note that while filing affidavit in form 'F' in tune with rule 11(2)(a) of the
8 WP / 14851 / 2019+
rules framed under the Act, the petitioner - Vaibhav had expressly
sought to place reliance on the validity issued to Niraj Maroti Wadikar.
However, the impugned judgment passed in the matter of other four
petitioners other than Someshwar, the committee has not undertaken
any scrutiny in respect of Niraj's validity much less has not assigned
any reason as to why his validity would not enure to the petitioners'
benefit.
12. The learned AGP would submit that after the matter was
remanded by the Supreme Court, the then committee had validated
Neerj's tribe certificate, in all probability, relying upon the observations
of the Supreme Court in paragraph no. 5 (unnumbered) of the order.
On instructions, he would submit that since Niraj's file had gone
missing, the committee could not make any observation in the
impugned judgment and order but like other validity holders, even the
committee intends to re-open his (Niraj) validity.
13. It is necessary to note that though the Supreme Court had
observed that it was inconceivable to believe that when father and
brother were issued with validity certificates, the appellant - Niraj could
not be belonging to that caste. However, after paragraph no. 5, the
order also reads that the learned counsel appearing for the respondent
- State had vehemently opposed such observations which were
recorded in the order by the Supreme Court in following words:
9 WP / 14851 / 2019+
" In the light of the certificates, issued in favour of the
appellant's father and brother, describing them as belonging to
Scheduled Tribe category : "Mahadev Koli", it is inconceivable to
believe that the appellant is not belonging to the said caste.
But learned counsel appearing on behalf of the
respondents has vehemently opposed it and submitted that it
would be in the fitness of things, if matter is remitted to The
Committee for Scrutiny & Verification of Tribe Claim, Aurangabad,
for fresh decision on merits in the light of the aforesaid documents
and in accordance with law. We accordingly do so as the
suggesion made by him is reasonable and appropriate."
14. In the light of these observations, even if the committee
had thought it fit to extend the benefit of the validities of his father and
brother to Niraj, the submission of the learned AGP that the committee
was influenced by the observations of the Supreme Court, does not
hold any water, more so, when it is not the stand of the committee in
the impugned orders on the same lines. The submission being
advanced by the learned AGP is without any foundation, either in the
impugned order or by way of any independent affidavit in reply. The
fact remains that Niraj possesses a certificate of validity which has not
been sought to be taken exception of by the committee, in the
impugned orders and even if it has now decided to issue notice to him,
till the time his validity subsists, the petitioners cannot be deprived of
deriving the benefit when they are ready to face the consequences
contemplated in Shweta Balaji Isankar (supra).
10 WP / 14851 / 2019+
15. In light of the above, both the impugned orders are liable to
be quashed and set aside and the petitioners deserve to be granted
benefit of having certificates of validity.
16. Writ petitions are allowed partly.
17. Impugned orders are quashed and set aside.
18. The committee shall immediately issue certificates of
validity to all these petitioners of 'Koli Mahadev' scheduled tribe.
19. The validities would be subject to the final outcome of the
matters which the committee has decided to re-open, including that of
Niraj.
20. The petitioners shall not be entitled to equities.
21. Rule is made absolute.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
