Gauhati High Court
WA/5/2025 on 25 November, 2025
Page No.# 1/23
GAHC010240502024
2025:GAU-AS:15983-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO.5 OF 2025
Gaurav Upadhyay,
Son of Late Shyam Sundar Upadhyay, Resident of
Government Quarter No.B-ii at Assam Police Housing
Complex, Ulubari, District: Kamrup (M), Assam -
781007.
.....Appellant
-Versus-
1. The State of Assam, represented by the Chief
Secretary to the Government of Assam, Dispur, Assam
- 781006.
2. Divyana A. Lahan, represented by her mother/next
friend/legal guardian Smt. Leena Doley, permanent
resident of House No.54, Beltola College Road,
Bangaon, Beltola, Guwahati - 781028, Kamrup (M),
Assam.
3. Smti. Leena Doley,
Resident of House No.54, Beltola College Road,
Bangaon, Beltola, Guwahati - 781028, Kamrup (M),
Assam.
4. The Secretary, Department of Tribal Affairs (Plain),
Government of Assam, Dispur, Guwahati - 781006,
Assam.
5. State Level Caste Scrutiny Committee, Assam,
represented by its Chairman, Office of the Secretary,
Department of Tribal Affairs (Plain), Government of
Assam, Dispur, Guwahati - 781006, Assam.
Page No.# 2/23
6. The Deputy Commissioner, Kamrup (M), Guwahati,
Assam - 781001.
7. Vigilance Cell, Directorate of Wpt & Bc Department,
Government of Assam, Rukmini Gaon, Guwahati -
781006, represented by the Superintendent of Police,
Cid, Assam.
8. The Superintendent of Police, Cid, Assam, Ulubari,
Guwahati - 781007, Assam.
.....Respondents
-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
For the Appellant(s) : Mr. K.N. Choudhury, Senior Advocate, assisted by Mr.
K.P. Pathak, Advocate.
For the Respondent(s) : Mr. P. Saikia, Government Advocate, Assam for
respondent Nos.1, 6 & 8.
: Mr. P.P. Sharma, Senior Advocate, assisted by Mr. H.
Jain and Mr. J. Borah, Advocates for respondent Nos.2 &
: Ms. N. Dey, Advocate on behalf of Mr. R. Dhar,
Standing Counsel, WPT & BC Department for respondent
Nos.4, 5 & 7.
Date on which judgment
is reserved : 18.11.2025.
Date of pronouncement
of judgment : 25.11.2025.
Whether the pronouncement
is of the operative part of the
judgment? : Not applicable.
Whether the full judgment
has been pronounced? : Yes.
Page No.# 3/23
JUDGMENT & ORDER (CAV)
(Ashutosh Kumar, CJ)
We have heard the learned counsel for the parties.
2. This intra-Court appeal is directed against the judgment & order
dated 03.10.2024 passed by a learned Single Judge of this Court in WP(C)
No.8024/2022, whereby the order of the State Level Caste Scrutiny
Committee (hereinafter to be referred as "SLCSC") rejecting the
Scheduled Tribe status of the respondent No.2 herein (hereinafter to be
referred as "X") and her brother was set aside and the matter was
remanded to the SLCSC on the limited aspect of determining as to
whether the people outside the community of the respondent Nos.2 & 3
had also identified them as belonging to the Scheduled Tribe community,
namely, Mising or Miri, or that of their father's non-tribal community.
The conclusions drawn by the learned Single Judge are being
extracted herein below for ready reference:-
"76. The impugned order bearing No.KAV TAD/BC/ 790/2020/213
dated 24.09.2021 passed by the SLSC is set aside and quashed.
77. The Petitioners herein have been able to substantiate the following
criteria laid down in Rameshbhai Dabhai Naika (supra).
(a) The Petitioners have been able to show and prove that the
Petitioner No.1 and her brother have been under the care and custody
of the Petitioner No.2.
(b) The Petitioners have been able to prove that the Petitioner
No.1 as well as her brother did not get any advantageous start in their
life being an offspring of an OBC father and a Scheduled Tribe mother.
(c) The Petitioner No.1 as well as her brother having been raised
and nurtured since their age of six and two respectively in the
community of the mother have automatically suffered the deprivations,
Page No.# 4/23
indignities, humiliations and handicaps which the Petitioner No.2's
community have suffered and is suffering till date.
(d) The Petitioners have been able to prove that the community of
the Petitioner No.2 had accepted the Petitioner No.1 and her brother as
members of the community of the Petitioner No.2. The community of the
Petitioner No.2 have also identified the Petitioner No.1 as well as her
brother as members of the Petitioner No.2's Mising community.
(e) The aspect as to whether the Petitioner No.1 as well as her
brother have been accepted by the other people outside the community
of the Petitioner No.2 as belonging to the ST community of the mother is
not clear from the records. The reason being that the Enquiry Officer
while submitting the Vigilance Report did not take into consideration
the relevant aspects while purportedly making enquiry with the
persons of locality wherein the Petitioner No.1 and her brother have
been raised. It is also seen that had the Vigilance Report being
furnished to the Petitioner No.2, she could have provided necessary
evidence in respect to prove the said aspect as to whether the people
other than the people of the community of the Petitioner No.2 have
identified the Petitioner No.1 and her child as belonging to the
Petitioner No.2's community.
78. This Court is therefore of the opinion that the matter requires to be
remanded back to the SLSC to decide only on the aspect as to whether the
people outside the community of the Petitioner No.2 have also identified the
Petitioner No.1 as well as her brother as belonging to the Petitioner No.2's
community or that of their father's community.
79. This Court further grants liberty to the SLSC to call for another
fresh report on the above aspect which have been directed to be considered
i.e. whether the people outside the community of the Petitioner No.2 have
also identified the Petitioner No.1 as well as her brother as belonging to the
Petitioner No.2's community or that of their father's community. Upon such
report being furnished and if such report goes against the petitioners, the
Petitioners be issued a Show Cause notice along with the said report. It is
further observed and directed that in the circumstance such Show Cause
notice and report is furnished, the Petitioners herein would be at liberty to
file a reply and also adduce such evidence as deem fit. The Petitioners also
be afforded in such circumstances an opportunity of hearing.
80. The said exercise be completed by the SLSC within 45 days from
the date a certified copy of the instant judgment is served upon the
Chairman of the SLSC."
Page No.# 5/23
3. The appellant herein is an Officer of the IPS Cadre of 2012 Batch,
who, at the time of filing of the appeal, had been serving as Additional
Secretary, Transport Department, Government of Assam. Previously, he
had served as Additional Inspector General of Police (Law & Order),
Assam at Assam Police Headquarters. Before that, the appellant was the
Superintendent of Police, Karimganj.
During the tenure of the appellant at Karimganj, the mother of
"X", i.e. the respondent No.3, also served as Additional Superintendent of
Police, Karimganj. Over a period of time, the appellant and his family
became friends with the family of the respondent No.3 and their children
also became good friends.
The respondent No.3 was later promoted to the post of
Superintendent of Police, CID. However, the connection between the
families continued.
4. As the allegation goes, the appellant had invited the respondent
No.3 and her children to the birthday party of his elder son at his official
residence, where he is said to have sexually harassed "X", for which the
respondent No.3 lodged an FIR (FIR No.115/2020) at All Women Police
Station, Guwahati on 03.01.2020. The said FIR was registered under
Section 354 of the Indian Penal Code (IPC) read with Section 10 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter to be
referred as "POCSO Act"). On 06.01.2020, the afore-noted FIR was
transferred to CID, Assam for a detailed investigation.
In the meantime, the appellant and the respondent No.3 also
were transferred to different stations.
Page No.# 6/23
A day later, i.e. on 07.01.2020, the respondent No.3 submitted a
representation claiming ST (Plain) status and asked for addition of the
provisions contained in Sections 3(1)(xi); 3(1)(w)(i); 3(1)(w)(ii) of the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989
(hereinafter to be referred as "SC/ST Act, 1989") to the case.
Consequently, Section 354A of the IPC and Sections 3(1)(xi); 3(1)(w)(i);
3(1)(w)(ii) of the SC/ST Act, 1989 were added to the charge.
5. The appellant thereafter filed a writ petition before this Court
vide WP(C) No.258/2020 seeking quashing of the afore-noted FIR.
This Court granted stay of the investigation in the afore-noted
case. WP(C) No.258/2020 was later converted into a petition under
Section 482 of the Code of Criminal Procedure (Cr.PC) and was re-
numbered as Criminal Petition No.55/2020.
While the Criminal Petition No.55/2020 was pending before this
Court, the All Guwahati Mising Kebang had issued a certificate affirming
that the respondent No.3 had independently raised her children with the
support of her mother and other siblings. This certificate was also
endorsed by a senior member of the Mising community.
6. It may be mentioned here that the respondent No.3 had married
a non-tribal person, who had passed away when the children of the
respondent No.3 were still very young. Perforce, the respondent No.3
raised both the children within her tribal surroundings.
7. In the Criminal Petition No.55/2020, an additional affidavit was
filed by the appellant with supporting documents to demonstrate that
Page No.# 7/23
the children of the respondent No.3 were not required to be treated as of
Scheduled Tribe community but of General Category.
Based on such affidavit, a Bench of this Court had directed the
Investigating Officer of the FIR to inquire into the actual caste status of
the victim.
8. In the meantime, the competent authority, namely, the Office of
the Deputy Commissioner, Kamrup (Metro), on the recommendation of
All Assam Tribal Sangha, issued a caste certificate in favour of the victim
on 21.08.2020.
The appellant then sent a legal notice on 24.08.2020 to the
Deputy Commissioner, Kamrup (Metro) seeking a response as to the basis
for issuance of the caste certificate in favour of the victim.
The Deputy Commissioner, Kamrup (Metro) immediately
cancelled the caste certificate, which he had issued.
9. The cancellation order was challenged by "X" before this Court
vide WP(C) No.4204/2020.
Shortly thereafter, on 12.10.2020, the Deputy Commissioner
withdrew the cancellation order and referred the matter to the SLCSC for
appropriate examination and determination.
10. In the meantime, the appellant had again filed a writ petition
before this Court, vide WP(C) No.4523/2020, seeking exemption from
applicability of the SC/ST Act, 1989.
This Court, vide order dated 21.10.2020, directed that the
provisions of the SC/ST Act, 1989 will not be added to the charge in the
Page No.# 8/23
case against the appellant until the validity of the caste certificate was
determined by the competent authority.
11. This order was challenged by the respondent No.3 in Writ Appeal
No.190/2020. The appeal was dismissed with a direction that the SLCSC
shall verify the validity of the tribal certificate within 15(fifteen) days of
receiving the order but the investigation shall proceed unaffected. The
police, after investigation, submitted charge-sheet against the appellant
under Sections 354 and 354A of the IPC read with Section 10 of the
POCSO Act.
12. On 24.09.2021, the SLCSC issued a speaking order holding that
"X" does not belong to the Scheduled Tribe community of Assam. The
concluding portion of the order passed by the SLSC is being extracted
herein for the sake of completeness:-
"After careful perusal and examination of all the records, personal
hearing of Smt. Leena Doley mother of Ms. Divyana A. Lahan and Shri
Gaurav Upadhyay and analysis of evidence and observations, the State
Level Scrutiny Committee finds as under:
Although Ms. Divyana A. Lahan is the offspring from a marriage
between a tribal (Smt. Leena Doley, the mother) and a non-tribal (Late
Neelutpal Lahan, the father), and she has been brought up by her mother
Smt. Leena Doley, there is no evidence that Ms. Divyana A. Lahan suffered
disabilities - social, economical and education cumulatively. Smti. Leena
Deley is an APS officer belonging to Class - I cadre in the Govt. of Assam.
She has provided good educational facilities to her daughter in reputed
schools of the state. The statements provided by members of Mising
community, viz. Shri Karneswar Doley, President/All Guwahati Mising
Kebang and Shri Ranjit Kumar Doley which are available on record, merely
state that the children of Smt. Leena Doley belong to Mising community and
the said statements do not substantiate anything regarding tribal custom,
way of life etc. of the children or that the children of Smt. Leena Doley
suffered disadvantage or disability due to their mother's ST status. On the
Page No.# 9/23
contrary, the Vigilance Report has found that though Smt. Leena Doley
belongs to MIRI (Mising) Community and originally hails from Lakhimpur
district, she had only little communication/link with the people of her native
village. The available evidence suggests that good education and amenities
were made available and accessible to Ms. Divyana A. Lahan, and that the
condition that 'by virtue of being the daughter of a forward caste father
(OBC) she did not have any advantageous start in life but on the contrary
suffered the deprivation, indignities, humilities and handicaps like any other
member of the community to which her mother belonged' is not fulfilled in
her case.
Accordingly, the State Level Scrutiny Committee is of the view that
Ms. Divyana A. Lahan, daughter of Smt. Leena Doley does not belong to
Scheduled Tribe community of Assam."
This order of the SLCSC was challenged by "X" and her mother
(respondent No.3) before this Court vide WP(C) No.8024/2022, in which
the impugned judgment & order has been passed.
13. Almost simultaneously, the appellant, strengthened by the order
passed by the SLCSC, preferred another writ petition vide WP(C)
No.1867/2022 seeking initiation of both criminal and departmental
proceedings against the respondent No.3 for using false caste
certificates; which prayer was rejected vide order dated 16.09.2022,
against which the appellant also has preferred an appeal vide Writ
Appeal No.388/2022.
14. Before the learned Single Judge, it was argued that the SLCSC
had been directed to decide the validity of the caste certificate issued in
favour of "X" within a period of 15(fifteen) days but the order was passed
beyond the stipulated time. It was further alleged that the SLCSC did not
afford to the respondent Nos.2 & 3 herein the documents which were
considered by it, thus, violating the principles of natural justice as also the
Page No.# 10/23
directions issued by the Supreme Court in the case of Kumari Madhuri
Patil & Anr. -Vs- Additional Commissioner, Tribal Development & Ors. ::
(1994) 6 SCC 241.
15. The further ground of challenge was that the yardstick applied
by the SLCSC in coming to the conclusion that "X" was not entitled for a
caste certificate was not in consonance with the judgment of the
Supreme Court in Rameshbhai Dabhai Naika -Vs- State of Gujarat & Ors. ::
(2012) 3 SCC 400. It was thus argued that the report of the SLCSC
reflected complete non-application of mind for not applying the
parameters laid down in Rameshbhai Dabhai Naika (supra).
It was argued before the learned Single Judge that the
respondent No.3 belonged to Miri community, which is a Scheduled Tribe
(Plain) community. The husband of the respondent No.3 had expired in
the year 2012 and, at that relevant point of time, "X" was only 6(six) years
old and her brother was 2(two) years old. There was nothing on record to
show that the children of the respondent No.3 were raised in the family of
her husband; rather the evidence was replete that the children were
reared up by her mother with the support of her family. There was
evidence on record that the Mising Community had accepted the
children, who were brought up in accordance with the traditions of
Mising Community.
Thus, it was urged that when the children were brought up in the
tribal community with the mother, who admittedly belongs to Scheduled
Tribe category, they would be deemed to have suffered disadvantages,
indignations, deprivations, etc. Merely because the respondent No.3
Page No.# 11/23
herein was in a position to afford good education to her children, it ought
not to mean that the children had an advantageous start in life.
It was also canvassed before the learned Single Judge that in
Ayaaubkhan Noorkhan Pathan -Vs- State of Maharashtra & Ors. :: (2013) 4
SCC 465, the Supreme Court has held that for a person to challenge the
issuance of caste certificate in favour of anyone, he has to be either a
Scheduled Tribe or a person aggrieved. A stranger cannot be permitted
to meddle in any proceeding unless he satisfies the authority/Court that
he falls within the category of "aggrieved persons". Only a person, who
has suffered; or sufferers from legal injury; can challenge any
act/action/order, etc. in a Court of law. A writ petition under Article 226
of the Constitution is maintainable either for the purposes of enforcing a
statutory or legal right, or when there is a complaint by the writ petitioner
that there has been a breach of statutory duty on the part of the
authorities. Therefore, there must be a judicially enforceable right
available for enforcement, on the basis of which the writ jurisdiction
could be resorted to. The legal right that can be enforced must ordinarily
be the right of the writ petitioner himself, who complains of infraction of
such right and approaches the Court for relief as regards the same. The
expression "aggrieved person" does not include a person, who suffers
from a psychological or an imaginary injury; rather he must be the one
whose right or interest has been adversely affected or jeopardised.
Hence, a person who raises a grievance must show how he has suffered
legal injury before he is permitted to intervene in the affairs of the others.
16. The issuance of caste certificate in favour of "X" could not have
been challenged by the appellant, it was argued, merely because there
Page No.# 12/23
was a request for addition of the charge under the provisions of the SC/ST
Act, 1989 also in the criminal case against the appellant. This factual
connection with the appellant would not render him an "aggrieved
person".
Such contention was vehemently opposed before the learned
Single Judge by the appellant on the ground that with the issuance of
the caste certificate, he would suffer the injury because of the addition
of the charge in the criminal case against him under the provisions of the
SC/ST Act, 1989 even though, according to him, "X" was not a tribe.
17. After having charted the developments in this case, it would be
necessary as also apt to refer to the decision of the Supreme Court in
Kumari Madhuri Patil (supra).
In the aforesaid case, for the purposes of streamlining the
procedure for issuance of social status certificates, their scrutiny and
approval, a procedure was laid down which procedure is expected to
be followed by the SLCSC. The relevant paragraphs of Kumari Madhuri
Patil (supra) are quoted herein below:
"13. The admission wrongly gained or a appointment wrongly obtained
on the basis of false social status certificate necessarily have the effect of
depriving the genuine Scheduled Castes or Scheduled Tribes or OBC
candidates as enjoined in the Constitution of the benefits conferred on them
by the Constitution. The genuine candidates are also denied admission to
educational institutions or appointments to office or posts under a State for
want of social status certificate. The ineligible or spurious persons who
falsely gained entry resort to dilatory tactics and create hurdles in
completion of the inquiries by the Scrutiny Committee. It is true that the
applications for admission to educational institutions are generally made by
a parent, since on that date many a time the student may be a minor. It is
the parent or the guardian who may play fraud claiming false status
Page No.# 13/23
certificate. It is, therefore, necessary that the certificates issued are
scrutinised at the earliest and with utmost expedition and promptitude. For
that purpose, it is necessary to streamline the procedure for the issuance of
a social status certificates, their scrutiny and their approval, which may be
the following:
1. The application for grant of social status certificate shall be
made to the Revenue-Sub-Divisional Officer and Deputy Collector or
Deputy Commissioner and the certificate shall be issued by such
Officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be,
shall file an affidavit duly sworn and attested by a competent gazetted
officer or non-gazetted officer with particulars of castes and sub-castes,
tribe, tribal community, parts of groups of tribes or tribal communities,
the place from which he originally hails from and other particulars as
may be prescribed by the concerned Directorate.
3. Application for verification of the caste certificate by the
Scrutiny Committee shall be filed at least six months in advance before
seeking admission into educational institution or an appointment to a
post.
4. All the State Governments shall constitute a Committee of
three officers, namely, (I) an Additional or Joint Secretary or any office
higher in rank of the Director of the concerned department, (II) the
Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as
the case may, and (III) in the case of Scheduled Castes another officer
who has intimate knowledge in the verification and issuance of the
social status certificates. In the case of the Scheduled Tribes, the
Research Officer who has intimate knowledge in identifying the tribes,
tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting
of Senior Deputy Superintendent of Police in overall charge and such
number of Police Inspectors to investigate into the social status claims.
The Inspector would go to the local place of residence and original
place from which the candidate hails and usually resides or in case of
migration to the town or city, the place from which he originally hailed
from. The vigilance officer should personally verify and collect all the
facts of the social status claimed by the candidate or the parent or
guardian, as the case may be. He also should examine the school
records, birth registration, if any. He should also examine the parent,
guardian or the candidate in relation to their caste etc. or such other
persons who have knowledge of the social status of the candidate and
then submit a report to the Directorate together with all particulars as
envisaged in the proforma, in particular, of the Scheduled Tribes
relating to their peculiar anthropological and ethnological traits, deity,
Page No.# 14/23
rituals, customs, mode of marriage, death ceremonies, method of burial
and dead bodies etc. by the concerned castes or tribes or tribal
communities etc.
6. The Director concerned, on receipt of the report from the
vigilance officer if he found the claim for social status to be 'not genuine
or 'doubtful or spurious or falsely or wrongly claimed, the Director
concerned should issue show cause notice supplying a copy of the
report of the vigilance officer to the candidate by a registered post with
acknowledgment due or through the head of the concerned educational
institution in which the candidate is studying or employed. The notice
should indicate that the representation or reply, if any, would be made
within two weeks from the date of the receipt of the notice and in no
case on request not more than 30 days from the date of the receipt of
the notice. In case, the candidate seeks for an opportunity of hearing
and claims an inquiry to be made in that behalf, the Director on receipt
of such representation/reply shall convene the Committee and the
Joint/Addl. Secretary as Chairperson who shall give reasonable
opportunity to the candidate/parent/guardian to adduce all evidence
in support of their claim. A public notice by beat of drum or any other
convenient mode may be published in the village or locality and if any
person or association opposes such a claim, an opportunity to adduce
evidence may be given to him/it. After giving such opportunity either in
person or through counsel, the Committee may make such inquiry as it
deems expedient and consider the claims vis-a-vis the objections raised
by the candidate or opponent and pass an appropriate order with brief
reasons in support thereof.
7. In case the report is in favour of the candidate and found to
be genuine and true, no further action need be taken except where the
report or the particulars given are procured or found to be false or
fraudulently obtained and in the latter event the same procedure as is
envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the
parents/guardian also in case candidate is minor to appear before the
Committee with all evidence in his or their support of the claim for the
social status certificates.
9. The inquiry should be completed as expeditiously as possible
preferably by day-today proceedings within such period not exceeding
two months. If after inquiry, the caste Scrutiny Committee finds the
claim to be false or spurious, they should pass an order cancelling the
certificate issued and confiscate the same. It should communicate
within one month from the date of the conclusion of the proceedings the
result of enquiry to the parent/ guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the
Page No.# 15/23
meanwhile the last date for admission into an educational institution or
appointment to an officer post, is getting expired, the candidate be
admitted by the Principal or such other authority competent in that
behalf or appointed on the basis of the social status certificate already
issued or an affidavit duly sworn by the parent/guardian/ candidate
before the competent officer or non-official and such admission or
appointment should be only provisional, subject to the result of the
inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and
conclusive only subject to the proceedings under Article 226 of the
Constitution.
12. No suit or other proceedings before any other authority
should lie.
13. The High Court would dispose of these cases as
expeditiously as possible within a period of three months. In case, as
per its procedure, the writ petition/Miscellaneous petition/matter is
disposed of by a single Judge, then no further appeal would lie against
that order to the Division Bench but subject to special leave under
Article 136.
14. In case, the certificate obtained or social status claimed is
found to be false, the parent/guardian/ the candidate should be
prosecuted for making false claim. If the prosecution ends in a
conviction and sentence of the accused, it could be regarded as an
offence involving moral turpitude, disqualification for elective posts or
offices under the State or the Union or elections to any local body,
legislature or the Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee
holding that the certificate obtained was false, on its cancellation and
confiscation simultaneously, it should be communicated to the
concerned educational institution or the appointing authority by
registered post with ac-knowledgment due with a request to cancel the
admission or the appointment. The Principal etc. of the educational
institution responsible for making the admission or the appointing
authority, should cancel the admission/appointment without any
further notice to the candidate and debar the candidate for further
study or continue in office in a post.
14. Since this procedure could be fair and just and shorten the undue
delay and also prevent avoidable expenditure for the State on the education
of the candidate admitted/appointed on false social status or further
continuance therein, every State concerned should endeavour to give effect
to it and see that the constitutional objectives intended for the benefit and
advancement of the genuine Scheduled Castes/ Scheduled Tribes or
Page No.# 16/23
Backward Classes, as the case may be are not defeated by unscrupulous
persons.
15. The question then is whether the approach adopted by the High
Court in not elaborately considering the case is vitiated by an error of law.
High Court is not a Court of appeal to appreciate the evidence. The
Committee which is empowered to evaluate the evidence placed before it
when records a finding of fact, it ought to prevail unless found vitiated by
judicial review of any High Court subject to limitations of interference with
findings of fact. The Committee when considers all the material facts and
record a finding, though another view, as a Court of appeal may be possible,
it is not a ground to reverse the findings. The Court has to see whether the
Committee considered all the relevant material placed before it or has not
applied its mind to relevant facts which have led the Committee ultimately
recorded the finding. Each case must be considered in the backdrop of its
own facts."
18. For coming to the conclusion whether a person can be issued a
caste certificate, certain yardsticks are to be followed.
19. In Rameshbhai Dabhai Naika, the Supreme Court, after analyzing
the judgments in Valsamma Paul -Vs- Cochin University :: (1996) 3 SCC 545;
Punit Rai -Vs- Dinesh Chaudhary :: (2003) 8 SCC 204; Anjan Kumar -Vs- Union
of India & Ors. :: (2006) 3 SCC 257; Sobha Hymavathi Devi -Vs- Setti
Gangadhara Swamy & Ors. :: (2005) 2 SCC 244 and other cases,
conclusively held that the legal position which emerged was that in an
inter-caste marriage or marriage between a tribal and a non-tribal, the
determination of the caste of the offspring is essentially a question of fact
to be decided on the basis of the facts adduced in each case. The
determination of caste of a person born of an inter-caste marriage or a
marriage between a tribal and a non-tribal cannot be determined in
complete disregard of attending facts of the case.
It was further held that in an inter-caste marriage or a marriage
Page No.# 17/23
between a tribal and a non-tribal, there may be a presumption that the
child has the caste of the father. This presumption may be stronger in
case where in the inter-caste marriage or a marriage between a tribal
and a non-tribal, the husband belongs to a forward caste. But by no
means, the presumption is conclusive or irrebuttable. It is open to the
child of such marriage to lead evidence to show that he/she was
brought up by the mother who belonged to the Scheduled Caste/
Scheduled Tribe. By virtue of being the son/daughter of a forward caste
father, he or she did not have any advantageous start in life but on the
contrary suffered the deprivations, indignities, humilities and handicaps
like any other member of the community to which his/her mother
belonged. Additionally, that he/she was always treated as a member of
the community to which his/her mother belonged not only by that
community but by the people outside the community as well.
Thus, there are 3(three) yardsticks to be satisfied before issuance
of a caste certificate to a child born out of a non-tribal father and a
Tribal mother, viz. (i) the child must be brought up by the mother, who
belongs to the Scheduled Tribe community; (ii) it has to be proved that
the child did not have any advantageous start in life but suffered the
humilities and indignities socially; and (iii) that the child was always
treated as a member of the Tribal Community, to which his/her mother
belonged, by the members of the tribal community as well as outside the
tribe.
20. The learned Single Judge found that the last of the yardsticks,
referred to above, was not taken into account by the SLCSC. Precisely for
Page No.# 18/23
this reason, the matter was remitted to the SLCSC to decide that aspect
of the matter only, and no other matter because the learned Single
Judge, on perusal of the materials on record, found that the children had
been able to show and prove that they were under the care and
custody of their mother (respondent No.3) and that they did not get any
advantageous start in their life, being the offspring of a non-tribe father
and a Scheduled Tribe mother.
21. Mr. K.N. Choudhury, learned Senior Advocate for the appellant
has vehemently argued that the judgment is highly presumptuous and
that the findings of the SLCSC have unnecessarily been interfered with,
alongside erroneous inferences. He has also questioned the validity of a
conditional remand to the SLCSC with observations which are heavily
loaded against the appellant and in favour of the respondent Nos.2 & 3.
22. Mr. P.P. Sarma, learned Senior Advocate for the respondent
Nos.2 & 3, however, has defended the remand and has submitted that
the inferences drawn by the learned Single Judge are based on hard
facts and evidence available on record before the SLCSC, which had
conveniently taken a lopsided view of the matter, based only on the fact
that the respondent No.3 was in service and had afforded good
education to her children.
23. Thus, the issues before this Court are -
(i) Whether the learned Single Judge has exceeded the
permissible limits of judicial review in caste verification matters by
issuing a conditional and restricted remand?
Page No.# 19/23
(ii) Whether the learned Single Judge has misapplied the law laid
down in Kumari Madhuri Patil (supra) and Rameshbhai Dabhai
Naika (supra)?
(iii) Whether the learned Single Judge was justified in making a
roving enquiry or deeper probe into the factual issues in the
absence of any perversity in the opinion of the SLCSC on face of
it?
(iv) Whether the reason on which the victim asserts the
Scheduled Tribe status for prosecuting the appellant, has any
bearing on the legal determination?
(v) Whether such a conditional remand order deserves to be
sustained?
24. After having heard the learned counsel for the parties, we
proceed to analyse the judgment impugned.
25. In Kumari Madhuri Patil (supra), the Supreme Court has laid down
a complete framework for caste verification. The SLCSC is the primary
fact-finding body and its findings are ordinarily final. The High Court ought
not to undertake a de novo factual enquiry, nor direct the SLCSC to
record findings on a pre-selected factual aspect. Judicial review is
confined to perversity, procedural irregularity or violation of natural
justice.
The yardsticks to be applied for determination by SLCSC have
been clearly laid down in Rameshbhai Dabhai Naika (supra).
Page No.# 20/23
26. True it is that one of the yardsticks spelt out in Rameshbhai Dabhai
Naika (supra) is the assessment of community perception, i.e. whether
outsiders have treated the child as belonging to the Tribe, but despite this
yardstick being relevant, it is a non-exclusive factor.
27. In Ayaaubkhan Noorkhan Pathan (supra), the Supreme Court had
applied the "real upbringing" test holding that caste claim cannot be
rejected merely because one parent does not belong to the caste and,
therefore, the enquiry must be holistic and reasoned.
However, so far as the jurisdiction of a Court is concerned, in
Navneet Kaur Harbhajansing Kundles alias Navneet Kaur Ravi Rana -Vs-
State of Maharashtra & Ors. :: 2024 SCC OnLine SC 494 , the Supreme Court
in Paragraphs 15 and 17, which are extracted herein below, clearly spelt
out the remit of a Court while deciding such matters and assessing the
validity of the decision of SLCSC.
"15. Now, when the Scrutiny Committee which is principally tasked
with the fact-finding exercise for validation of caste claim, had applied its
mind and reached a conclusion, then in such a situation, whether a roving
enquiry by High Court was required? It is well settled that High Courts as
well as Supreme Court should refrain themselves from deeper probe into
factual issues like an appellate body unless the inferences made by the
concerned authority suffers from perversity on the face of it or are
impermissible in the eyes of law. In the instant case, the order passed by
Scrutiny Committee reflects due appreciation of evidence and application of
mind and in absence of any allegation of bias/malice or lack of jurisdiction,
disturbing the findings of Scrutiny Committee cannot be sustained.
17. Having perused the order passed by the Scrutiny Committee and
findings recorded by it to reach its subjective satisfaction with respect to
claim of Appellant, at this juncture, if we look at the whole exercise carried
out by High Court from the perspective of settled principles of law for
invocation of jurisdiction under Article 226 of the Constitution of India,
Page No.# 21/23
particularly in relation of writ of certiorari, it leaves us with no scope of
doubt that the High Court has clearly overstepped by re-appreciating the
evidence in absence of any allegation of mala-fide or perversity. As fairly
settled by this Court in catena of judgments, the writ of certiorari being a
writ of high prerogative, should not be invoked on mere asking. The purpose
of a writ of certiorari for a superior Court is not to review or reweigh the
evidence to adjudicate unless warranted. The jurisdiction is supervisory and
the Court exercising it, ought to refrain to act as an appellate court unless
the facts so warrant. It also ought not re-appreciate the evidence and
substitute its own conclusion interfering with a finding unless perverse. The
High Court in a writ for certiorari should not interfere when such challenge is
on the ground of insufficiency or adequacy of material to sustain the
impugned finding. Assessment of adequacy or sufficiency of evidence in the
case at hand, fell within the exclusive jurisdiction of the Scrutiny Committee
and re-agitation of challenge on such grounds ought not have been
entertained by High Court in a routine manner."
28. The learned Single Judge, in our estimation, ought not to have
made a conditional remand even if it was found that the order of the
SLCSC was lopsided. If the report was bad for any reason, especially non-
observance of the principles of natural justice; not following the
yardsticks in its totality or procedural impropriety, the entire report gets
tainted, which cannot be segregated. Doing this would tantamount to
undertaking a factual adjudication in a writ petition. The observations of
the learned Single Judge in his concluding paragraphs, has loaded the
remand in favour of one party, which is absolutely impermissible. Singling
out one aspect and remanding the matter to the SLCSC cannot be
countenanced on any score.
This approach, in our estimation, is inconsistent with the law. For
the reason that it leaves no scope for the SLCSC to decide objectively;
rather hampers and prohibits a holistic re-consideration and is contrary to
the dictum laid down in Navneet Kaur Harbhajansing Kundles (supra). It
Page No.# 22/23
effectively structures the fact finding process and thereby pre-judges the
outcome.
29. We are of the considered opinion that judicial review in such
matters is not appellate review and the impugned judgment traverses
beyond judicial review by isolating and prioritizing a factual element,
which is a non-exclusive factor.
30. Speaking of the contention of the appellant that the victim is
asserting ST status solely to prosecute him under the SC/ST Act, 1989 is
legally irrelevant. The caste status depends upon the facts of birth,
upbringing and assimilation but the purpose for which a certificate is
needed, is wholly immaterial.
The motive argument, therefore, does not aid the appellant. It
only underlines the need for the SLCSC to conduct a strictly unbiased
enquiry.
31. Thus, we hold that the reasons given by the learned Single Judge
for doubting the correctness of the order passed by the SLCSC may be
correct; for there are many lapses including inadequate reasoning and
incorrect application of the principles/ test laid down in Rameshbhai
Dabhai Naika (supra), justifying the remand but it was not appropriate to
restrict the scope of the enquiry after remand.
32. The proper remedy, therefore, in our opinion, is a fresh,
unfettered reconsideration by the SLCSC on all relevant factors,
consistent with Kumari Madhuri Patil (supra), Rameshbhai Dabhai Naika
(supra), Ayaaubkhan Noorkhan Pathan (supra) and Navneet Kaur
Page No.# 23/23
Harbhajansing Kundles (supra).
33. We, thus, set aside the impugned judgment, and remand the
matter to the SLCSC to reconsider the issue in a holistic yet calibrated
manner, without being guided or prejudiced by the observations made
by the learned Single Judge in the concluding portion of the impugned
judgment, or else, the fact finding function of the SLCSC would stand
trenched upon impermissibly.
34. The SLCSC shall, without wasting time, decide the issue in a
holistic manner, within a period of 60(sixty) days, to be counted from the
date of receipt or production of a certified copy of this judgment before
the SLCSC by any one of the parties.
35. The appeal stands disposed off in terms of the above.
JUDGE CHIEF JUSTICE
Mukut bySharma
Sharma Date: 2025.11.25
11:52:12 +05'30'
Comparing Assistant
