Bombay High Court
Ku. Gangubai D/O Prabhakar Naitam (Sau. ... vs District Caste Certificate Scrutiny ... on 23 September, 2024
Author: M.S. Jawalkar
Bench: Avinash G. Gharote, M.S. Jawalkar
2024:BHC-NAG:10603-DB
Judgment 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 8381/2023
Ku. Gangubai D/o Prabhakar Naitam
{Sau. Gangubai W/o Bapu Bhandekar)
Aged about 45 yrs, Occ. Service,
R/o At-Post - Warud Road, Tah.
Rajura, Distt. Chandrapur-442905
.... PETITIONER
// VERSUS //
1. District Caste Certificate Scrutiny
Committee, Chandrapur,
Through its Member-Secretary
2. Chief Executive Officer,
Zilla Parishad, Chandrapur
3. Education Officer (Primary),
Zilla Parishad, Chandrapur
4. Block Education Officer,
Panchayat Samiti, Rajura
.... RESPONDENTS
------------------------------------------------------------------------------------------
Shri S.R.Narnaware, Advocate for petitioner.
Ms. T.H.Khan, AGP for respondent No. 1/State.
Shri S.V.Sohoni, Advocate for respondent No. 2.
-----------------------------------------------------------------------------------------
CORAM : AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
DATE OF RESERVING THE JUDGMENT: 06/09/2024
DATE OF PRONOUNCING THE JUDGMENT : 23/09/2024
Judgment 2
JUDGMENT (PER: SMT. M.S. JAWALKAR, J.)
(1) Rule. Rule made returnable forthwith.
(2) Heard finally by consent of learned counsel
appearing for the parties at the stage of admission.
(3) Being aggrieved by the order dated 08/07/2023 passed by
the respondent No. 1 - District Caste Certificate Scrutiny
Committee, Chandrapur (in short, 'Scrutiny Committee'),
thereby invalidating the claim of the petitioner for 'Tiramal'
Nomadic Tribe (NT), the petitioner has filed the present petition.
(4) It is submitted that, the petitioner was appointed on
17/12/2003 as untrained Teacher against the vacancy reserved
for Nomadic Tribe (NT). The petitioner is disabled person. Her
physical impairment is to the extent of 78% because of the post
polio residual paralysis of left lower limb, therefore, she is
entitled for the privileges and benefits of physically handicap
person. The petitioner submitted for verification of her tribe
claim belonging to 'Tiramal' NT, along with caste certificate,
school leaving certificate and birth extract of her father
mentioned as 'Tiramal'. The earlier Police Vigilance Cell Report
submitted by the Scrutiny Committee accepted the document of
her father as correct. The said Vigilance Cell Report was totally in
favour of the petitioner and no counter document has been
produced.
(5) On 18/08/2023, respondent No. 4 issued Show Cause
Notice to the petitioner to submit validity certificate till August,
2023, failing which, the monthly salary from September, 2023
shall be stopped. In September, 2023, the petitioner learned that
her tribe claim was invalidated by respondent No. 1. Therefore,
the petitioner personally visited the office of the Scrutiny
Committee, Chandrapur requesting for the copy of the order and
accordingly, the Scrutiny Committee has supplied the copy of the
order dated 08/07/2020 to the petitioner on 13/12/2023. Hence,
the present petition.
(6) It is the contention of the learned Counsel for the
petitioner that the petitioner has submitted her own documents
belong to 'Tiramal' NT, documents of her father Prabhakar Nilu
dated 01/07/1954, wherein, the entry is mentioned as 'Tiramal'
and the revenue record of the grandfather Nilu Arjun for the
year 1954-55. The tribe claim of the petitioner was rejected only
on the ground that the birth record of the father Prabhakar Nilu
is in the dilapidated condition and therefore, the Scrutiny
Committee drew a conclusion that it is not a reliable proof and
accordingly, passed an impugned order which is totally
erroneous and unreasonable. The petitioner's service can be
terminated because the Show Cause Notice was issued to the
petitioner for the termination of her service. Hence, she prayed
for interference of this Court.
(7) The learned counsel for the petitioner relied on the
following authorities/citations:-
(i) Sudhir Vasantrao Dhekan V/s. Joint Commissioner of
Scheduled Tribe Caste Certificate Scrutiny Committee,
Nagpur [2010(5) Mh.L.J.353]
(ii) Syed Khalil Syed Vajir V/s. State of Maharashtra and
ors. [2012(3) Mh.L.J. 927]
(iii) Mahesh Pralhadrao Lad V/s. State of Maharashtra
and ors. [2009(2) Mh.L.J. 90]
(iv) Anand V/s. Committee for Scrutiny and Verification of
Tribe Claims and ors. [(2012) 1 SCC 113]
(v) Ashwin Rajendra Parate V/s. State of Maharashtra
and ors [Judgment of this Court in WP No. 2716/2022]
(vi) Maharashtra Adiwasi Thakur Jamat Swarakshan
Samiti V/s. The state of Maharashtra and ors, 2023 SCC
OnLine SC 326,
(8) The learned Assistant Government pleader for
the respondent No. 1 - Scrutiny Committee supported the order
passed by the Scrutiny Committee and contended that the
documents submitted by the claimant/petitioner are of Tirmal
(NT-B) but the petitioner's school leaving certificate submitted
before the Committee shows entry as 'Tirumal' but original
record shows entry written as 'Tirumal' Teli and the
documentary proof of birth record of the father is in a
dilapidated condition. According to the Act and Rules, pre-
constitutional documents have probative value in the eyes of law.
According to the Vigilance Cell report and the documents
submitted by the petitioner, it clearly proves that the petitioner
belongs to 'Teli' (OBC) not as 'Tirumal' (NT-B).
[
(9) Learned Counsel for respondent No. 2, i.e. Executive
Officer Zilla Parishad supported the action of show cause asking
the petitioner to submit the tribe validity certificate as it is
justified in view of the terms of the appointment order. Though,
tribe Claim was invalidated on 08/07/2020, the petitioner in
explanation dated 07/11/2023, informs that she would submit
the tribe validity certificate after the decision of Scrutiny
Committee. Thus, her explanation was not correct.
(10) We have heard both the parties at length. Perused
record and proceedings produced by the AGP of Caste Scrutiny
Committee. The petitioner placed on record her caste certificate
issued by Executive Magistrate, Chandrapur, dated 17/01/1995,
showing her cast 'Tirumal' (NT). Her school leaving certificate
dated 01/07/1978 showing her entry as 'Tiramal'; her father's
(Prabhakar Nilu) station house form A - birth, issued from
Pombhurna, District - Chandrapur and his date of birth showing
01/07/1954 and entry mentioned as 'Tiramal'. She also produced
her grand father's (Nilu Arjuna) land revenue record for the year
1954-55, her cousin uncle (Hemant Budhaji Naitam), School
leaving certificate issued by Zilla Parishad Primary Boys School
Pombhurna, wherein, entry is mentioned as 'Tirumal' and his
date of birth is shown as 06/08/1975. He placed on record her
cousin brother (Santosh Urukuda) certificate issued from Zilla
Parishad Primary School Ambedhanoda, Tahsil - Rajura,
wherein entry is mentioned as 'Tiramal' tribe and date of birth is
09/08/1969.
(11) The document pertaining to year 01/07/1954,
in respect of applicant's father's birth certificate clearly goes to
show that on 01/07/1954, a son was born to Nilu Tirumal by
name Prabhakar. This document is the certified copy obtained by
the applicant from the original. However, this document is
discarded by the Caste Scrutiny Community on the ground that
when letter sent to Block Development Officer for bringing the
original record, the block Development Officer informed through
letter that record of Nilu Tiramal is in dilapidated condition,
therefore, cannot be produced before the Committee. If earlier
vigilance report dated 17/01/2004 is perused, it is clearly
supporting the applicant. It appears that entries of birth
certificate of father of the petitioner were also duly verified by
the Vigilance Cell and were reported as true and correct.
(12) Vigilance Report also supports documents in respect
of petitioner, petitioner's father and grandfather which are duly
showing entry 'Tiramal'. So also in revenue record of 1954, the
petitioner's grandfather and cousin grandfather's entry is there.
However, there is no tribe entry mentioned in these revenue
documents. In Kotawal Panji register of 1954 the name of
grandfather Nilu is mentioned along with his 'Tiramal' tribe. It is
recorded by Vigilance Cell that tribe of the petitioner is 'Tirmal'
and her forefathers are resident of Pombhurna, District
Chandrapur. Thus, the petitioner is having only one old
document that is of 01 /07/1954, and certified copy of the same is
produced. Just because the Block Development Officer is not in a
position to bring that record before the Scrutiny Committee, that
cannot be a reason to discard her document, specifically when
Vigilance Cell is there to inquire into the matter. The Caste
Scrutiny Committee have also considered the document of the
year 1965. It was discarded on the ground that admission is of the
year 1985, which is subsequent to 1982. There are two other
documents which were placed on record by the petitioner, one of
01/07/1954 and another one dated 17/11/1934, in respect of
Prabhakar Nilu and Nilu Arjuna respectively. These two
documents at page Nos. 30 and 31, which is also a part of the
record at page Nos. 28 and 29 appears not to have been
considered.
[
(13) Learned Counsel for the petitioner relied on Sudhir
Vasantrao Dhekan (Supra), wherein, it is held that person cannot
be terminated for not producing Caste Validity Certificate, where
his tribe claim is pending decision for validity before the
Committee. However, in this matter as the show cause notice was
given to the petitioner her services were not terminated. It
appears that she was not informed about the decision of the
Committee in the year 2020. So far as judgment relied on Sayed
Khalil Syed Vajir, it is not applicable in the facts and
circumstances. In the said decision, refusal by the Caste Scrutiny
Committee to decide the cast claim merely on the ground that the
applicant was desirous of contesting an election of Municipal
Corporation is held not justified.
(14) Learned Counsel placed reliance on Mahesh Lad
(Supra), in support of his contention that there is no requirement
either under the Act or the Rules or the judgment of the Supreme
Court or High Court that documentary evidence other than pre-
constitutional, pre-presidential notification or State notification
or state modification notifying Caste or Nomadic Tribe be
excluded from being considered when a Committee considers an
application for verification of Tribe/Caste status for the purpose
of issuing validity certificate. He has submitted that there is old
document prior to the Presidential order, as such the Committee
has miserably failed to consider the same. In view of the
judgment in Anand (supra), if there are document prior to cut off
date showing applicants caste there is no necessity to apply
affinity taste.
"22. It is manifest from the aforextracted paragraph that
.....................................................................
(i).........................
(ii) While applying the affinity test, which focuses on the
ethnological connections with the scheduled tribe, a
cautious approach has to be adopted. A few decades ago,
when the tribes were somewhat immune to the cultural
development happening around them, the affinity test could
serve as a determinative factor. However, with the
migrations, modernisation and contact with other
communities, these communities tend to develop and adopt
new traits which may not essentially match with the
traditional characteristics of the tribe. Hence, affinity test
may not be regarded as a litmus test for establishing the
link of the applicant with a Scheduled Tribe. Nevertheless,
the claim by an applicant that he is a part of a scheduled
tribe and is entitled to the benefit extended to that tribe,
cannot per se be disregarded on the ground that his present
traits do not match his tribes' peculiar anthropological and
ethnological traits, deity, rituals, customs, mode of
marriage, death ceremonies, method of burial of dead bodies
etc. Thus, the affinity test may be used to corroborate the
documentary evidence and should not be the sole criteria to
reject a claim."
(15) Learned Counsel for petitioner also relied on
Ashwin Parate (supra), wherein, judgment of Anand (supra), has
been relied on by this Court and it is reiterated affinity test is not
a litmus test. Moreover, the area restriction is also removed.
(16) Learned Counsel for petitioner relied on
Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti
(supra), wherein, Hon'ble Apex Court held that :
"36. 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 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."
(17) Learned Counsel for petitioner further relied on
Priya Promod Gajbe (supra), wherein it is held as under :
14. It will further be apposite to refer to the recent judgment
of this Court in the case of Mah. Adiwasi Thakur Jamat
Swarakshan Samiti (supra), wherein this Court observed
thus:-
"25. Now, we come to the controversy regarding the affinity
test. In clause (5) of Paragraph 13 of the decision in the case
of Kumari Madhuri Patil, (1994) 6 SCC 241, it is held that
in the case of Scheduled Tribes, the Vigilance Cell will
submit a report as regards peculiar anthropological and
ethnological traits, deities, rituals, customs, mode of
marriage, death ceremonies, methods of burial of dead bodies
etc. in respect of the particular caste or tribe. Such
particulars ascertained by the Vigilance Cell in respect of a
particular Scheduled Tribe are very relevant for the conduct
of the affinity test. The Vigilance Cell, while conducting an
affinity test, verifies the knowledge of the applicant about
deities of the community, customs, rituals, mode of
marriage, death ceremonies etc. in respect of that particular
Scheduled Tribe. By its very nature, such an affinity test can
never be conclusive. If the applicant 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. It is true that
the Vigilance Cell can also question the parents of the
applicant. But in a given case, even the parents may be
unaware for the reason that for several years they have been
staying in bigger urban areas. On the other hand, a person
may not belong to the particular tribe, but he may have a
good knowledge about the aforesaid aspects. Therefore, Shri
Shekhar Naphade, the learned senior counsel, is right when
he submitted that the affinity test cannot be applied as a
litmus test. We may again note here that question of conduct
of the affinity test arises only in those cases where the
Scrutiny Committee is not satisfied with the material
produced by the applicant."
(18) We, therefore, find that Scrutiny Committee erred in
not giving due weightage to the oldest document dated
17/11/1934 and 01/07/1954, which was produced from proper
custody and which had the entry 'Tirmal'. It is not the case of the
Committee that there was tampering or any doubt as regards to
the said document. It is just ignored and discarded by the
Committee without there being any justifiable and cogent reason.
The affinity test cannot be treated as a litmus test and the claim of
a person cannot be disregarded solely on this basis. We,
therefore, find that the petitioner's claim of belonging to
'Tirumal' NT ought to have been accepted by the Scrutiny
Committee. The order dated 08/07/2020, is unsustainable and
liable to be set aside. The consequential communication by
respondent Nos. 2 to 4 are also liable to be set aside for the
aforesaid reason. Hence, we pass the following order:
ORDER
1. Petition is allowed.
2. The Order dated 08/07/2020, passed by respondent
No.1, District Caste Certificate Scrutiny Committee, Chandrapur,
(received on 13/12/2023), is here by quashed set aside.
3. It is held that the petitioner duly established
that she belongs to the 'Tiramal' as included in Entry
No. 18 of the Nomadic Tribe.
4. The communications/show cause notice dated
18/08/2023 does not survive, it is also quashed and
set aside.
5. The respondent - No.1, District Caste Certificate
Scrutiny Committee, Chandrapur, is directed to issue
the caste certificate to the petitioner as belongs to
'Tirmal' (NT) within a period of four weeks.
6. By that time this judgment should be treated as
certificate.
Rule is made absolute in the above terms.
No order as to costs.
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
Jayashree..
Signed by: Mrs. Jayashree Pethe
Designation: PA To Honourable Judge
Date: 24/09/2024 10:50:42
