Bombay High Court
Nilesh S/O Rangrao Narnaware And ... vs Vice Chairman And Member Secretary, The ... on 18 January, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-NAG:1377-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 5758 OF 2022
1. Mr. Nilesh s/o. Rangrao Narnaware,
Aged about 28 years, Occ. Service,
2. Mr. Vikas s/o. Rangrao Narnaware,
Aged about 32 years, Occ. Student,
Both r/o. At Tiwsada, Post, Pandhurna,
Tahsil Ghatanji, District Yavatmal .....PETITIONERS
...V E R S U S...
1. Vice Chairman and Member
Secretary, The Scheduled Tribe
Certificate Scrutiny Committee,
Amravati, Opposite of office of
State Information Commission,
Chaprashipura, Amravati
2. Joint Director, Accounts and
Treasury Amravati Region,
Lekhakosh Bhawan, University Road,
Amravati 444 602
3. Treasury Officer, District Treasury
Office, Yavatmal, Collectorate Office
Campus, L.I.C. Square,
Yavatmal 445 001 .....RESPONDENTS
----------------------------------------------------------------------------------------------
Mr. Ananta Ramteke, Advocate for petitioners,
Mr. A.A. Madiwale, AGP for Respondents /State
---------------------------------------------------------------------------------------
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CORAM:- NITIN W. SAMBRE & ABHAY J. MANTRI, JJ.
DATE : 18.01.2024
JUDGMENT (Per: Abhay J. Mantri, J.)
Rule. Rule made returnable forthwith. Heard finally
with the consent of the parties.
2. Petitioners being aggrieved by the order dated
17.3.2022, passed by respondent No. 1 - the Scheduled Tribe
Certificate Scrutiny Committee, Amravati (for short, "the
Scrutiny Committee") thereby invalidating the claim of the
petitioners that they belong to 'Mana' Scheduled Tribe, have
preferred this petition.
3. The petitioners claim that they belong to the ' Mana'
Scheduled Tribe which is enlisted at Serial No. 18 in the
Presidential Order (Scheduled Tribe). On 23.8.2017 and
12.2.2020, the Sub Divisional Officer, Kelapur (SDO), District
Yavatmal issued certificates in favour of the petitioners that
they belong to the 'Mana' Scheduled Tribe.
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4. Vide order dated 8.8.2019, petitioner No. 1 was
recruited as an Accountant-clerk on the post reserved for
Scheduled Tribe on the establishment of respondent Nos. 2 and
3. Petitioner No. 2 is a student of Master of Arts at Amolchand
Mahavidyalaya, Yavatmal. On 24.12.2019 respondent Nos. 2
and 3 forwarded the Tribe claim of petitioner No. 1 to the
Scrutiny Committee for its verification along with all requisite
documents. Likewise, petitioner No. 2 has also submitted his
Tribe claim before the Committee on 25.8.2021. The
Committee, on perusal of the documents was not inclined to
accept the claim of the petitioners that they belong to the
'Mana' Scheduled Tribe, has referred the claim to the Vigilance
Cell pursuant to the provisions of Sub-Rule 2 of Rule 12 of
Maharashtra Scheduled Caste, Scheduled Tribes, De-notified
Tribes (Vimukta Jati), Nomadic Tribes, Other Backward Classes,
and Special Backward Category (Regulation of issuance and
verification of) Caste Certificate Act, 2000.
5. Accordingly, the Vigilance Cell has conducted an
enquiry and submitted its report to the Committee on
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25.10.2021. The said report was against the claim of the
petitioners, therefore, on 1.11.2021, the Committee issued a
show cause notice to the petitioners calling for their
explanation about the report of the Vigilance Cell. Pursuant to
the said notice, on 26.11.2021 petitioner No. 1 along with his
father appeared before the Committee and submitted an
explanation.
6. The Committee, after considering the explanation,
the report of the Vigilance Cell as well as the record has passed
the order impugned, being aggrieved by the said order, this
petition is filed.
7. Learned counsel for the petitioners Mr. Ananta
Ramteke vehemently submitted that the petitioners have
produced a pre-independence document dated 31.8.1949 on
record which denotes that their grandfather belongs to the
'Mana' Scheduled Tribe. However, the Committee has ignored
said document and given undue importance to the document
dated 29.6.1949 pertaining to the cousin grandfather wherein
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his caste is mentioned as Mani. To buttress his submissions, he
has drawn our attention to the judgment of the Hon'ble Apex
Court in the case of Priya Pramod Gajbe Vs. State of Maharashtra and
Others (2023 SCC OnLine SC 909) , and submitted that the issue in
dispute is covered under the said judgment and therefore
petitioners are entitled to claim that they belong to the ' Mana'
Scheduled Tribe.
8. Per contra, learned AGP Mr. A.A. Madiwale, for
respondents has strenuously argued that the oldest document
dated 29.6.1949 found during the Vigilance enquiry depicts
that the petitioners' cousin grandfather belongs to Mani and not
'Mana'. Secondly, he submitted that the petitioners have failed
to prove the affinity test that they belong to the ' Mana'
Scheduled Tribe. In support of his submissions, he has placed
reliance on the judgments mentioned in paragraph Nos. 15 and
16 of the Affidavit in reply and urged that the petitioners have
failed to prove that they belong to the ' Mana' Scheduled Tribe.
Hence, he prayed for the dismissal of the petition.
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9. We have appreciated the submissions advanced by
learned advocates for the parties.
10. Perused the impugned order, documents, records, and
citations relied upon by both sides.
11. Perusal of the order impugned depicts that the
Scrutiny Committee has invalidated the claim of the petitioners
mainly on the following grounds:
i) The petitioners failed to produce the documents
showing that they belong to 'Mana' Scheduled Tribe,
ii) The petitioners failed to satisfy the affinity
test conducted during the Vigilance enquiry.
iii) The petitioners failed to prove that they
originally belonged to an area where the people of
the 'Mana' Scheduled Tribe reside.
It is pertinent to note that the documents produced
by the petitioners as well as found during the enquiry of the
Vigilance Cell revealed the caste of the petitioners as 'Mana or
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Mani' only. In paragraph 3 of the order, the Committee has
referred total of fifty-two documents, which include the
document dated 31.8.1949, wherein a caste of the ancestors of
the petitioners is mentioned as 'Mana'. However, in paragraph
6, the Committee has observed that one document dated
29.6.1949 pertains to the cousin grandfather of the petitioners
and shows that he belongs to the 'Mani' caste. It is pertinent to
note that based on said document and the issue of affinity test
the Committee has rejected the caste claim of the petitioners. It
is pertinent to note that the issues that arose in the case at hand
are covered by the judgment of the Hon'ble Apex Court in the
case of Priya Gajbe (Supra). We would like to reproduce
paragraph Nos. 10, 11, 15, and 16 of the said judgment, which
read thus:
"10. A perusal of the report of the Vigilance
Committee itself would reveal that the appellant's
great grandfather's birth record shows the caste as
'Mana'. The said document relates to as early as
10th March 1924, while another document of 14th
April 1926 shows as 'Mani'. However, it is pertinent
to note, and learned counsel for the parties also
agree, that there is no caste named 'Mani'. It is
thus possible that there could be some mistake in
writing when the caste was written. It is to be
noted that the original record is written in Marathi
and not in English. As such, such an error is quite
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possible.
11. We, therefore, find that there was no reason to
discard the pre-Constitutional document of the
period as early as 1924.
15. It could thus clearly be seen that this Court has
held that if the appellant has stayed in bigger
urban areas along with his family for decades or if
his family has stayed in such urban areas for
decades, the applicant may not have knowledge of
the aforesaid facts. This Court has, therefore, held
that the Affinity Test cannot be applied as a litmus
test.
16. Insofar as the contention with regard to area
restriction is concerned, it could be seen that the
'Mana' Tribe is found at Entry No.18 in the
Presidential Order with respect to the Scheduled
Castes and Scheduled Tribes for the State of
Maharashtra. It could be seen that in the said
entries, there is no area restriction with regard to
any of the tribes mentioned therein. Per contra, in
some of the entries, restriction is imposed with
regard to certain districts. As such, the findings of
the High Court with regard to area restrictions
also, in our view, are not sustainable in law. We
find that the order of the Scrutiny Committee as
well as of the High Court need to be interfered
with and quashed and set aside on this short
ground alone."
The facts of the case in hand are identical to the facts
of the case referred to above, and therefore, the dictum laid
down in the said judgment is squarely applicable to the case in
hand. The Committee, while invalidating the caste claim has
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mainly relied upon the oldest document dated 29.6.1949 which
indicates that the cousin grandfather of the petitioners belongs
to the 'Mani' caste. However, on the Court query, the learned
AGP has fairly agreed that there is no caste named ' Mani'.
Therefore, as per the observations made in the aforesaid
judgment, the possibility of a mistake in writing the caste
cannot be ruled out as the original record is written in the
Marathi language and not in English. As such, error is quite
possible as observed in the judgment referred supra.
12. The Hon'ble Apex Court has further held that the
affinity test cannot be applied as a litmus test and there is no
area restriction with regard to any of the tribes mentioned in
entry No. 18 in the Presidential Order, and therefore, the
finding given by the Committee on the point of ' Mani' caste,
affinity test, and area restrictions, in our considered view, is not
sustainable in the eyes of law. Per Contra, the same are covered
by the aforesaid judgment.
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13. Having regard to the aforesaid discussions as well as
the document dated 29.08.1949 along with other documents
clearly shows that the grandfather of the petitioners belongs to
the 'Mana' caste. Moreover, the document dated 31.08.1949
was neither disputed nor denied by the Vigilance Cell or the
Committee. Thus, such a document has a greater probative
value. Besides, as per the dictum laid down in the case of Priya
Gajbe (Supra), the affinity test cannot be termed as a litmus test
or there is no area restriction with regard to the entries of caste
found at Entry No. 18 in the Presidential Order. Consequently, it
seems that the findings given by the Committee are contrary to
the dictum laid down in the case of Priya Gajbe and the facts on
record, hence, said findings are not sustainable in the eyes of
the law and liable to be quashed and set-side. For the aforesaid
reasons, we pass the following order:
i) The impugned order dated 17.3.2022, passed
by respondent No. 1 Committee is quashed and set
aside.
ii) It is hereby declared that the petitioners belong
to the 'Mana' Scheduled Tribe.
iii) Respondent No.1 Committee is hereby directed to
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issue a caste validity certificate in favour of the
petitioners as they belong to the ' Mana' Scheduled
Tribe within eight weeks from the receipt of this
Judgment.
iv) Termination of petitioner no.1 vide order
dated 26.4.2022 passed by respondent Nos. 2 and 3
is quashed and set aside and he be reinstated in
service.
v) Needless to clarify, petitioner No. 1 was not
in service from 26.4.2022 till this date, therefore, he
is not entitled to claim back wages for the said
period. But he is entitled to claim continuity in
service for the said period.
14. Rule made absolute in the aforesaid terms. No costs.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
Belkhede
Signed by: Mr. R. S. Belkhede
Designation: PA To Honourable Judge
Date: 05/02/2024 11:03:33
