Bombay High Court

Chittaranjan Gyanoba Dhemkewad vs The State Of Maharashtra Through Its ... on 21 August, 2024

Author: Ravindra V. Ghuge

Bench: Ravindra V. Ghuge

2024:BHC-AUG:18387-DB


                                                               WP-12522-2022-Judgment.odt




                         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                    BENCH AT AURANGABAD

                                 WRIT PETITION NO.12522 OF 2022

                 Chittaranjan s/o Gyanoba Dhemkewad
                 Age 33 yrs Occup-Service,
                 R/o. Sarsam (bk), Taq - Himayat Nagar,
                 Dist - Nanded, Pin no 431 802                   ... PETITIONER

                        VERSUS

                 1.     The State of Maharashtra
                        Through its Secretary,
                        Tribal Development Department,
                        Mantralaya, Mumbai - 32

                 2.     The Deputy Director (Research) and
                        Member Secretary, Scheduled Tribe
                        Certificate Verification Committee,
                        Kinwat, Division Aurangabad,
                        Near Behind CIDCO N-1 Bus Stand,
                        Aurangabad

                 3.    The Superintendent of Police
                       Office at Nanded, District Nanded       ... RESPONDENTS
                                                  ....
                 Mr. R. B. Dhakane, Advocate for the Petitioner
                 Mr. S. K. Tambe, AGP for Respondent Nos. 1 to 3 - State
                                                  ....

                                    CORAM : RAVINDRA V. GHUGE AND
                                            Y. G. KHOBRAGADE, JJ.

                            RESERVED ON :       07. 08. 2024
                         PRONOUNCED ON :        21. 08. 2024



                                                                                  1 of 12
                                    (( 2 ))      WP-12522-2022-Judgment




JUDGMENT (Per - Y. G. Khobragade, J.) :

1. Rule. Rule made returnable forthwith and heard finally

by consent of the parties.

2. The Petitioner has put forth prayer clauses (B) and (C), as

under:-

"B. For a writ of mandamus, order or direction in the nature of mandamus, or any kind of writ, the decision rendered by the Respondent no.2, rejecting the proposal bearing Case No.4/511/Ser/042018/110614 for Caste / Tribe Validity Certificate (Mannervarlu-27) by the Respondent no 2, dated 4.11.2022, may kindly be quashed and set aside, in the interest of justice.

C. For a writ of mandamus, order or direction in the nature of mandamus, or any kind of writ, the Hon'ble court may kindly be direct the Respondent no.2, to issue Caste / Tribe validity certificate (Mannervarlu-27) to the petitioner based upon the documents and Caste / Tribe validity certificate of the real brother of the petitioner / validity certificate of the blood relatives of the paternity of the petitioner within the stipulated period."

3. We have considered the strenuous submissions canvassed

on behalf of both the sides, so also we have gone through the written

notes of arguments tendered on behalf of the Petitioner and the

Respondent caste scrutiny committee.




                                                                    2 of 12
                                    (( 3 ))      WP-12522-2022-Judgment

4. On 13.12.2022, this Court had passed an order and

directed Respondent No.3 / Superintendent of Police, Nanded, not to

dispense with the service of the Petitioner, on the ground that the

Petitioner's caste claim belonging to 'Mannervarlu' Scheduled Tribe,

has been invalidated.

5. On the face of the record, it appears that, on 01.10.2012,

the Petitioner has joined as Police Sub-Inspector with the Police

Department under the reserved category of Scheduled Tribe and

presently he is working with Respondent No.3 / Superintendent of

Police, Nanded.

6. On 05.04.2018, his proposal for scrutiny of caste claim

belonging to 'Mannervarlu' Scheduled Tribe, was referred to

Respondent No. 2, however, there were some spelling mistakes in the

caste certificate. Therefore, the Petitioner had approached before this

Court in Writ Petition No. 6360 of 2017 and during pendency of said

Petition, the caste claim of the Petitioner was pending with

Respondent No. 2 since 05.04.2018.

7. On 20.06.2017, this Court passed an order in Writ

Petition No.6360 of 2017, permitting the Petitioner to file a fresh

3 of 12 (( 4 )) WP-12522-2022-Judgment

proposal with Respondent No. 2 Scrutiny Committee. Accordingly,

the proposal for scrutiny of caste claim of the Petitioner was

submitted with Respondent No. 2 along with various documents

including primary school extract register, higher secondary school

extract register, affidavit with genealogy tree, school leaving

certificate, school extract of Petitioner's father, the caste validity

certificate issued in favour of his real brother Vivekanand Gyanoba

Dhemkewad, school leaving certificate of his brother, vigilance report,

copy of caste certificates issued by the Sub-Divisional Officer,

Hadgaon, District Nanded, etc. However, on 04.11.2022, Respondent

No. 2 Scrutiny Committee passed the impugned order and invalidated

the tribe claim of the Petitioner belonging to 'Mannervarlu' Scheduled

Tribe.

8. The learned Counsel appearing for the Petitioner in

vehemence canvassed that, as per genealogical tree, Vivekanand

Gyanoba Dhemkewad, who is biological brother of the petitioner, was

granted caste validity certificate by Respondent No. 2 on 19.04.2010

on the basis of documents produced before it and as such, the caste

claim of the biological brother of the Petitioner has not been revoked.

Therefore, Respondent No. 2 should have granted caste validity

4 of 12 (( 5 )) WP-12522-2022-Judgment

certificate in favour of the Petitioner. However, by the impugned

order, Respondent No. 2 invalidated the caste claim of Petitioner only

on the ground that the validity was granted in favour of the

Petitioner's brother on the basis of validity of maternal side relatives,

namely Bhagwan Shivaji Mandalwar, without following the due

process of law. To buttress these submission, the learned Counsel

appearing for the Petitioner relied on the following case laws:-

(i) Bharat Nagu Garad and others Vs. State of Maharashtra and others, 2024(1) Mh.L.J. 647;

(ii) Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. State of Maharashtra - 2023 SCC OnLine SC 326;

(iii) Apoorva Vinay Nichale Vs. Divisional Caste Certificate Scrutiny Committee No.1 and others, 2010(6) Mh.L.J. 401;

(iv) Umesh Anandrao Rodge Vs. State of Maharashtra, 2024(2) Mh.L.J. 523;

(v) Shweta Balaji Isankar Vs. The State of Maharashtra and others, 2018 SCC OnLine Bom 10363 (Writ Petition No.5611 of 2018, decided on 27,07,2018;

(vi) Syanna Vs. State of Maharashtra and others, judgment in the Supreme Court Civil Appeal No.6253 of 2009, arising

5 of 12 (( 6 )) WP-12522-2022-Judgment

out of S.L.P. (Civil) No.1774 of 2007, decided on 15.09.2009;

(vii) Anjali d/o Baliram Muddewad Vs. The State of Maharashtra and others, the order dated 26.06.2023, passed by the coordinate Bench of this Court in Writ Petition No.11323 of 2022.

9. Per contra, Respondent No. 2 has filed the written notes

of argument and opposed the claim of the Petitioner. Mr. Tambe, the

learned AGP submitted in vehemence that on 05.04.2018, the

Petitioner submitted his proposal for caste verification, through the

Commissioner of Police, Nanded. Accordingly, Respondent No. 2

referred said claim to the Vigilance Cell, who submitted an inquiry

report on 26.08.2022 with the remark that the Petitioner does not

belong to 'Mannervarlu' Scheduled Tribe. The Vigilance report duly

served upon Petitioner and invited for reply. Proper opportunity to

reply and hearing was provided to the Petitioner. After assessing the

documents which were produced by the Petitioner, Respondent No. 2/

Committee concluded that the Petitioner does not belong to

'Mannervarlu' Scheduled Tribe caste, because, the documents

produced by the Petitioner are contrary to his caste claim as under:-

6 of 12 (( 7 )) WP-12522-2022-Judgment

Sr. Name Relation Caste Document Remark No. with Mentioned in Petitioner School Record 01 Gyanoba Father Munnerwarlu Admission Lu & Matra is Madhav Extract added on Nn Dhemkewad subsequently 02 Suman Real Marathi Admission --

       Madhav    Aunt          OR               Extract
       Dhemkewad               MARATHA
03     Gyanba    Father        Munnerwarlu     Admission           --
       Madhav                                   Extract
       Dhemkewad
04     Madhav    Grand         Mannervarlu     Admission   Detail
       Govind    Father                         Extract    Remark given
       Dhemkewad                                           in order of the
                                                           committee

10. The learned AGP strenuously submits that though the

Petitioner has relied on validity certificate of his natural brother, but

said certificate was granted on the basis of validity certificate issued

on 19.04.2010 to relative of his maternal side namely Shri Bhagwan

Shivaji Mandalwar without following the due process of law and as

such, a show cause notice has already been issued to the real brother

of the Petitioner for reopening of the case and , if the cases on which

the present Petitioner places reliance upon, are re-opened, the

material available would indicate that validity certificates granted to

all such cases, should be set aside. Therefore, the Petitioner is not

entitled for validity of his caste claim.


                                                                        7 of 12
                                      (( 8 ))    WP-12522-2022-Judgment

11. In support of these submissions, the learned AGP relied

has on the case of Rajeshwar Baburao Bone Vs. State of Maharashtra

and others (SLP No. 5778/2015) and Maharashtra Adiwasi Thakur

Jamat Mandal Vs. State of Maharashtra, Supreme Court Civil Appeal

No.2502 of 2022.

12. Needless to say that Respondent No. 2/Caste Scrutiny

Committee, has already granted validity certificate of 'Mannervarlu'

Scheduled Tribe in favour of Vivekanand Gyanoba Dhemkewad, who

is the biological brother of the Petitioner.

13. This Court at the Principal Seat has delivered a judgment

in Shweta Balaji Isankar vs. The State of Maharashtra and others,

2018 SCC OnLine Bom 10363 (Writ Petition No.5611/2018), decided

on 27/07/2018, wherein it is concluded in Paragraph Nos. 3 and 4 as

under :-

"3. On such a finding being rendered by the Committee, we called upon the learned AGP on the earlier two occasions to produce the record. We also indicated to the learned AGP as to how the certificate of validity is denied to the petitioner though she has established her relationship with the said Govind and only on the ground that a show cause notice has been issued, but no proceedings in furtherance thereof came to be initiated till date. The learned AGP sought time to file an affidavit. Now, the Joint Commissioner, Schedule Tribe Scrutiny Committee, Aurangabad has filed an affidavit in reply. That is taken on

8 of 12 (( 9 )) WP-12522-2022-Judgment

record. The said affidavit admits that the certificate of validity has been issued to her real uncle and cousin uncle of the petitioner. The affidavit admits that the petitioner relies heavily on these two documents, but clarifies that there is a suppression detected from the original record of the certificate holder and that is how a show cause notice has been issued to Govind. The show cause notice could not be taken to its logical end on account of the huge pendency of cases before this Committee. In all, 7,000 matters were pending on the date when this Joint Commissioner took charge and he has reduced the pendency by 2500 cases being decided. In the circumstances, he says that appropriate orders and directions be issued by this Court.

4. We are not impressed by this explanation and the justification not to proceed against a person who has perpetrated a fraud on the public. If it is a serious allegation and which is termed as fraud, then, it should have been taken to its logical end. Mere issuance of a show cause notice in the present case would not suffice for There are two certificates of validity relied upon. The only reason assigned in the impugned order to discard them, cannot be sustained. The justification in the above affidavit is also not enough to straightaway discard the certificates of validity issued in the family. It is conceded that other reasons assigned in the impugned order cannot be supported in law."

14. In the case of Apoorva Vinay Nichale (Supra), this Court

has concluded that, if several biological relatives from the paternal

side have been granted validity certificates, the Committee cannot

come to a conclusion in a given case that the said candidate does not

belong to the same caste or tribe, with reference to which series of

biological relatives have been granted validity certificates.




                                                                      9 of 12
                                    (( 10 ))      WP-12522-2022-Judgment

15. The Hon'ble Supreme Court in Maharashtra Adiwasi

Thakur Jamat Swarakshan Samiti (supra), in Paragraph Nos. 23 and

38, observed as under:

"23. In a given case, the Scrutiny Committee may be satisfied that the caste validity certificate relied upon by the applicant has been issued after making a lawful enquiry. But if the Scrutiny Committee is of the view that the applicant has not clearly established that the person to whom caste validity certificate produced on record has been granted is his blood relative, in terms of sub-rule (2) of Rule 12 of the ST Rules, the Caste Scrutiny Committee will have to refer the case for conducting an enquiry through Vigilance Cell. In such a case, the Vigilance Cell can be directed by the Scrutiny Committee to conduct an enquiry limited to the relationship claimed by the applicant with the person in whose favour the caste validity certificate has been issued. If, on the basis of the report of the Vigilance Cell, the Scrutiny Committee is satisfied that the person in whose favour caste validity certificate has been issued is a blood relative of the applicant and lawful enquiry has been conducted before issuing the validity certificate, the Scrutiny Committee will have to issue validity certificate even if the applicant does not satisfy the affinity test. For example, if it is established that the father or grandfather of the applicant has been given a caste validity certificate after holding a lawful enquiry in accordance with law, the Caste Scrutiny Committee cannot hold that the grandfather or father of the applicant, as the case may be, belongs to Scheduled Tribe but the applicant does not belong to Scheduled Tribe. Only if the relationship as pleaded by the applicant is not established, the other evidence produced by the applicant and the result of the affinity test can be taken into consideration by the Scrutiny Committee.

38. Thus, to conclude, we hold that:

(a) Only when the Scrutiny Committee after holding an enquiry is not satisfied with the material produced by the applicant, the case can be referred to Vigilance Cell.

While referring the case to Vigilance Cell, the Scrutiny

10 of 12 (( 11 )) WP-12522-2022-Judgment

Committee must record brief reasons for coming to the conclusion that it is not satisfied with the material produced by the applicant. Only after a case is referred to the Vigilance Cell for making enquiry, an occasion for the conduct of affinity test will arise.

(b) For the reasons which we have recorded, affinity test cannot be conclusive either way. When an affinity test is conducted by the Vigilance Cell, the result of the test along with all other material on record having probative value will have to be taken into consideration by the Scrutiny Committee for deciding the caste validity claim; and

(c) In short, affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case."

16. In the case in hand, the validity as 'Mannervarlu'

Scheduled Tribe, is already granted in favour of Vivekanand Gyanoba

Dhemkewad, who is biological brother of the Petitioner and such as

on today, the said validity has not been revoked or cancelled by

Respondent No. 2. Therefore, in these circumstances the pragmatic

approach pitted against a pedantic approach, would be to grant a

conditional certificate to the Petitioner in the light of the law laid

down in the case of Shweta Balaji Isankar (supra) and by recording

that the Petitioner would face a re-opened case as regards his validity

certificate, if his real brother, who has been granted validity

certificate, suffers invalidation on account of re-opening of his case

11 of 12 (( 12 )) WP-12522-2022-Judgment