Bombay High Court
Gauri D/O Mohan Nadge vs The Scheduled Tribe Caste Certificate ... on 27 January, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:852-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 7243 OF 2019
Gauri D/o Mohan Nadge,
Age about 19 years, Occupation -
Student, resident of Rachana Midas, .. Petitioner
Hill Road, Gokulpeth, Nagpur - 10
Versus
1 The Scheduled Tribe Caste
Certificate Scrutiny Committee,
through its Member Secretary and
Deputy Director, Sanna Building,
Opp. Govt. Rest House, Camp
Amravati - 414601 .. Respondents
2 The Principal, Visvesvraya National
Institute of Technology, Nagpur -
440 010
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Mr. Mohan Sudame learned Senior Counsel with Mr. Ashwin
Deshpande, Advocate for Petitioner.
Mr. A.V.Palshikar, Assistant Government Pleader for respondent
No.1.
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CORAM :AVINASH G. GHAROTE AND
ABHAY J. MANTRI, JJ.
DATE OF RESERVING THE JUDGMENT : 20/12/2024
DATE OF PRONOUNCING THE JUDGMENT : 27/01/2025
ORAL JUDGMENT (Per : Abhay J. Mantri, J.)
Rule. Rule is made returnable forthwith. Heard finally, with
the consent of the learned counsel, appearing for the parties.
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(2) The petitioner, being aggrieved by the order dated
17/09/2019 passed by respondent No.1, the Scheduled Tribe Caste
Certificate Scrutiny Committee, Amravati (for short- 'the Committee'),
thereby rejecting her claim that she belongs to " Halba" Scheduled
Tribe, has preferred this petition.
(3) It is the case of the petitioner that she belongs to the
"Halba", Scheduled Tribe, which is a notified scheduled tribe. The Sub-
Divisional Officer of Achalpur had issued a Tribe certificate in her
favour. The petitioner for pursuing her education in respondent No.2
College of Engineering has produced her Tribe certificate along with
relevant documents for its verification. However, her tribe claim was
rejected by the then respondent No.1 Committee vide its order dated
15/07/2017. She challenged the said order before this Court in Writ
Petition No.5471/2017. This Court, vide order dated 24/09/2018,
quashed and set aside the order of invalidation of her claim and
remanded the matter back to respondent No.1 Committee for its fresh
consideration as per law by protecting her admission in respondent
No.2 College.
(4) The respondent No.1 Committee, pursuant to the order
dated 24/09/2018 passed in Writ Petition No.5471/2017, forwarded the
petitioner's proposal to the Vigilance Cell for a detailed enquiry. The
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Vigilance Cell thoroughly inquired into the matter and submitted its
report to the Committee on 11/09/2019, observing that some adverse
entries, i.e. "Sali, Bunkar, Koshti and Halbi", had been found against
the tribe claim of the petitioner. Accordingly, the respondent No.1
Committee issued a show-cause notice dated 11/09/2019 to the
petitioner, calling upon her to explain the adverse entries and the
observations made in the Vigilance Cell report. Pursuant to the said
notice, the petitioner appeared before the respondent No.1 Committee
and submitted her explanation to the said notice. While replying to the
notice, she categorically stated that she has no relation with Baliram,
as her grandfather, as shown in document Sr.No.5 dated 09/01/1920.
Therefore, she categorically denied the same. After considering the
Vigilance Cell report, explanation of the petitioner and documents on
record, the respondent No.1 Committee invalidated the tribe claim of
the petitioner.
(5) Mr.Mohan Sudame, learned Senior Counsel along with
Mr.Ashwin Deshpande, learned Counsel for the petitioner, vehemently
argued that the petitioner, in support of her tribe claim, has produced
in all 09 documents, out of which 03 documents are of the pre-
Constitutional era from 26/04/1920 to September 1921 pertaining to
her great-great-grandfather and cousin grandfather, wherein their caste
has been recorded as "Halbi", those documents are oldest one.
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However, the respondent No.1 Committee has not considered those
oldest entries in its proper perspective, gave undue weightage to the
subsequent documents and erred in discarding the tribe claim of the
petitioner.
(6) He further canvassed that as per the order dated
03/08/2004 passed by this Court in Writ Petition No.4574/2003, the
respondent No.1 Committee has granted a validity certificate in favour
of her father Mohan Nagorao Nadge on 30/08/2004. The said validity
certificate has not been cancelled till this date. Therefore, based on the
said validity certificate and in view of the mandate laid down in the
case of Apoorva d/o Vinay Nichale vs. Divisional Committee 2010 (6)
Mh.L.J. page 401, the petitioner is also entitled to get the validity
certificate.
(7) He further drew our attention to the document dated
09/01/1920, which pertains to one Baliram resident of Raipura, whose
caste has been mentioned as "Koshti". He contended that the
petitioner's ancestors belong to Samraspura and not Raipura.
Therefore, the document discovered by the Vigilance Cell during the
enquiry pertains to Balrim, a resident of Raipura, who has no concern
with the ancestors of the petitioner, but her ancestors were residents of
Samraspura. He further pointed out the document in that regard, as
well as the Vigilance Cell report, and submitted that based on the
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oldest document from 1920 to 1921 and the validity certificate granted
in favour of the petitioner's father, she is entitled to get a validity
certificate.
(8) Per contra, Mr. Palshikar, learned Assistant Government
Pleader, strenuously argued that during the enquiry, the Vigilance Cell
found 06 pre-Constitutional era documents from 1920 to 1936
pertaining to ancestors of the petitioner, wherein their caste has been
recorded as "Bunkar, Koshti, Sali and Halbi". However, the petitioner
failed to explain the adverse entries during her explanation. The said
entries appear contrary to the petitioner's claim. Therefore, based on
the said entries, the respondent No.1 Committee has rightly discarded
the documents produced by the petitioner and rejected her Tribe claim.
(9) He further canvassed that the entry dated 26/04/1920 on
which the petitioner relies is an extract of the land revenue record. The
petitioner failed to produce any other corroborative evidence
supporting her claim; therefore, in the absence of any other
corroborative evidence, the tribe claim of the petitioner cannot be
considered based on the solitary document. Moreover, the said
document is in decrepit/torn condition. Therefore, he submitted that
the petitioner failed to prove that she belongs to the "Halba" Scheduled
Tribe and, thus, no interference is required in the impugned order.
Hence, he prayed for the dismissal of the petition.
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(10) We have appreciated the rival contentions of the learned
Counsel for the parties and perused the impugned order. We have also
gone through the original record and returned it.
(11) At the outset, it appears that the petitioner, in order to
substantiate her claim, has produced 09 documents, out of which 03
documents are from the pre-Constitutional era from 26/04/1920 to
September 1921 pertains to her great-great-grandfather and cousin
grandfather, wherein their caste has been recorded as " Halbi". It is
pertinent to note that neither the Vigilance Cell nor the respondent
No.1 Committee has disputed or denied the said documents or entries
therein as "Halbi"; therefore, there is no reason to discard those
documents as the other entries found by the Vigilance Cell adverse to
the said entries are subsequent.
(12) It further reveals that during the Vigilance Cell enquiry,
the respondent No.1 Committee discovered the entry dated
09/01/1920 in one document, i.e. a birth Register of Raipura. The said
entry pertains to one Baliram, wherein his caste had been recorded as
"Koshti" and resident of Raipura; however, the Vigilance Cell report and
other documents produced by the petitioner denote that her ancestors
were residents of Samraspura and not Raipura. Moreover, the petitioner
has categorically denied the said entry. In such an eventuality, it was
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incumbent on the Vigilance Cell and respondent No.1 Committee to
show that the said Baliram resident of Raipura was in relation with the
petitioner's family. However, nothing has been produced on record by
the Vigilance Cell or the respondent No.1 Committee to substantiate
their contention. As against, the documents produced by the petitioner
along with the Vigilance Cell report categorically depict that the
petitioner's ancestors were residents of Samraspura and not Raipura.
(13) The next oldest document after the document of
09/01/1920 is the document at Sr.No.8 dated 26/04/1920, which
pertains to the great-grandfather of the petitioner, Baliram Ratanaji
Nadge. A perusal of the copy of this Sale Deed indicates that it
mentions that Baliram Ratanaji Nadge belongs to the " Halbi" caste and
has sold his property to Gajanan Parasramji, a resident of Samraspura.
(14) The Hon'ble Apex Court, in catena of judgments,
including Adiwasi Thakur Jamat Swarakshan Samiti vs. The State of
Maharashtra and others (2023) 3 S.C.R. 1100 has held that "the entry
in the oldest pre-constitutional documents have greater probative value
than subsequent documents. Based on the mandate laid down by the
Hon'ble Apex Court, the respondent No.1 Committee ought to have
considered the oldest pre-constitutional documents while considering
the tribe claim of the petitioner instead of discarding the said
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documents based on the subsequent adverse entries. However, the
finding recorded by the respondent No.1 Committee appears contrary
to the mandate laid down by the Hon'ble Apex Court in Adiwasi
Thakur Jamat (supra). Therefore, the finding of discarding the oldest
document based on the subsequent document cannot be sustained in
the eyes of the law. The undisputed entry pertaining to the petitioner's
great-grandfather has more probative value. Therefore, it would not be
proper to discard the same while considering the tribe claim of the
petitioner.
(15) Apart from the above, the petitioner has produced the
caste validity certificate of her father, namely, ' Mohan Nagorao Nadge'
issued by the respondent No.1 Committee on 30/08/2004 pursuant to
the order dated 03/08/2004 passed by this Court in Writ Petition
No.4574/2003; the said validity certificate has not been cancelled till
this date. Therefore, as per the law laid down in Apoorva Nichle
(supra), the respondent No.1 Committee ought not to have refused the
same status to the petitioner without assigning any cogent reason, but
it was incumbent on the respondent No.1 Committee to issue validity
certificate in favour of the petitioner unless the Scrutiny Committee
finds that the validity certificate of the petitioner's father has been
obtained by fraud or issued without any jurisdiction. In such an
eventuality, there is no reason for the Scrutiny Committee to discard
the said validity certificate.
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(16) The Hon'ble Apex Court, in Adiwasi Thakur Jamat
(supra) has held that "an affinity test cannot be termed a litmus test,
particularly when the pre-constitutional documents exist and are placed
on record." Likewise, "the oldest pre-Constitutional documents have
more probative value than the subsequent documents"; therefore, the
Committee's findings regarding the affinity test cannot be sustained in
the eyes of the law.
(17) It appears that the petitioner, to substantiate her claim,
has relied upon 03 pre-Constitutional era documents pertaining to her
great-grandfather and cousin-grandfather, wherein it has been recorded
that they belong to the "Halbi" scheduled Tribe. The authenticity of the
said documents and entries made therein is not disputed by the
respondent No.1 Committee nor by the Vigilance Cell; therefore, there
is no reason to disbelieve the same; on the contrary, they have greater
probative value than the subsequent document.
(18) As a result, we are of the opinion that the petitioner has
demonstrated that she belongs to the "Halbi" Scheduled Tribe, which is
an entry at Sr.No.19 of the Constitutional Scheduled Tribe Order, 1950,
in relation to the State of Maharashtra. Thus, it seems that the findings
given by the respondent No.1 Committee are contrary to the
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documents and law laid down by the Hon'ble Apex Court in various
decisions, as well as the judgment of this Court in Apoorva Nichle
(supra). Based on the said finding, the impugned order cannot be
sustained in the eyes of the law, and the order is liable to be quashed
and set aside in the backdrop of the above, and it will have to be held
that the petitioner belongs to the Scheduled Tribe 'Halbi'.
(19) It is, however, material to note that the father of the
petitioner has been granted a validity certificate in his favour, which
holds him to belong to 'Halbi', Scheduled Tribe (pg.46), which still
holds the field. However, since a claim has been made that the
petitioner belongs to the 'Halba' Scheduled Tribe and in view of our
discussion above based upon the entries in the oldest documents since
we found that the petitioner belongs not to the 'Halba' Scheduled Tribe
but to the 'Halbi' Scheduled Tribe, in view of which, though by the
order dated 25/11/2024, we had pronounced the decision of allowing
the petition, reasons to follow later on, the same came to be withdrawn
by the order dated 20/12/2024, as this Court found that there was a
distinction between the Scheduled Tribe ' Halba' and 'Halbi' and the
documents filed by the Petitioner indicated her to belong to the ' Halbi'
Scheduled Tribe. In contrast, the claim was made of belonging to the
'Halba' Scheduled Tribe, and the matter was again heard on
20/12/2024 itself.
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(20) On that day, Mr. Sudame, learned Senior Counsel, along
with Mr. Ashwin Deshpande, learned Counsel for the Petitioner, has
addressed us on the issue that Entry No.19 in the Scheduled Castes
and Scheduled Tribes Orders (Amendment) Act, 1976 Part IX which is
applicable to Maharashtra, would indicate that both the Tribes are
synonymous with each other, for which he also relies upon Entry No.13
in the Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 1956 dated 25/09/1956, which indicates the entry to be 'Halba' or
'Halbi', in support of which contention that there is no difference in
both the entries and they are in fact one and the same, which
according to him, is indicated from the fact that both are placed at
serial No.13.
(21) The tribe 'Halba' was a singular entry at serial No. 13 in
Part IV of the Schedule to the Constitution (Scheduled Tribes) Order,
1950, which was issued by the Hon'ble President of India in the
exercise of the powers under Article 342(1) of the Constitution, for the
State of Madhya Pradesh. By way of the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1956, w.e.f. 25/09/1956
Part IV of the Schedule for the State of Madhya Pradesh was amended
by replacing entry No.13 'Halba' with entry 13 'Halba or Halbi'. By the
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976
w.e.f. 18/09/1976, the Schedule-IX came to be amended by deleting
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the original Entry - 13 and inserting Entry -19 as 'Halba, Halbi' for the
State of Maharashtra, pursuant to the States Reorganization Act. Thus,
what is material to note is that Entry No.19 in Schedule - IX of the
Constitution (Scheduled Tribes) Order, 1950, stood amended as Entry
No.19 'Halba, Halbi'.
(22) The punctuation mark COMMA (,) was inserted between
the two Tribes 'Halba and Halbi', in Entry No.19 Part IX in the second
schedule of the Constitution (Scheduled Tribes) Order, 1950 by virtue
of the Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 1976 w.e.f. 18/09/1976. As held by the Full Bench of this Court in
Maroti S/o Vyankati Gaikwad and others Vs. Deputy Director and
Member Secretary, The Scheduled Tribe Caste Certificate Scrutiny
Committee, Amravati and others, [ reported in 2023 SCC OnLine
Bom. 1991 ], the punctuation mark COMMA (,) occurring the name of
each tribe, functions as a tool to indicate to readers a certain
separation of words, phrases or ideas in order to prevent misleading
the writer's intended meaning. This has been considered by the Hon'ble
Apex Court in the State of Maharashtra and others Vs. Mana Adim
Jamat Mandal (2006) 4 SCC 98, in which it has been held that the
punctuation mark COMMA (,) between one entry and another in the
group signifies that each one of them is deemed to be a separate
Scheduled Tribe itself. It would therefore be apparent that the
contention of Mr. Sudame learned Senior Counsel, for the petitioner,
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that the entries 'Halba and Halbi', though separated by punctuation
mark COMMA (,) are synonyms with each other, is clearly misconceived
as each of the Scheduled Tribe 'Halba and Halbi', as contained in entry
No.19 of Scheduled IX of the Constitution (Scheduled Tribes) Order,
1950 are separate and distinct. All the judgments cited by Mr. Sudame,
learned Senior Counsel for the petitioner, have already been considered
by the Full Bench in Maroti Vyankati Gaikwad (supra) and, therefore,
in our considered opinion, do not need any reconsideration.
(23) We, therefore, are constrained to hold that the tribes
'Halba and Halbi' are different Scheduled Tribes. The father of the
petitioner has already been granted the validity of belonging to the
Scheduled Tribe 'Halbi' (pg.46). In view of the discussion above, we do
not see how the petitioner can claim to belong to the Scheduled Tribe
'Halba'. Therefore, we reject the petitioner's claim of belonging to
Scheduled Tribe 'Halba' and hold that the petitioner belongs to the
Scheduled Tribe 'Halbi'.
(24) We deem it appropriate to pass the following order :-
a) The petition is allowed as under.
b) The impugned order dated 17/09/2019 passed by the
respondent No.1 Committee is hereby quashed and set
aside.
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c) It is hereby declared that the petitioner belongs to the
"Halbi" Scheduled Tribe.
d) The respondent No.1 Committee is directed to issue a
validity certificate in favour of the petitioner within four
weeks from the date of production of a copy of this
judgment.
e) Rule is made absolute in the above terms.
[ ABHAY J. MANTRI, J.] [ AVINASH G. GHAROTE, J.]
KOLHE/WADKAR
Signed by: Mr. Ravikant Kolhe PAGE 14 OF 14
Designation: PA To Honourable Judge
Date: 28/01/2025 17:33:02
