Madhya Pradesh High Court

Rajesh Rohankar vs The State Of Madhya Pradesh on 31 October, 2023

Author: Sanjay Dwivedi

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 31st OF OCTOBER 2023
WRIT PETITION NO.17232 OF 2016

BETWEEN:-

RAJESH ROHANKAR S/O SHRI GOVIND ROHANKAR
AGED 30 YEARS, BY OCCUPATION JUNIOR ENGINEER,
MADHYA PRADESH MADHYAKSHETRA VIDYUT VITRAN
COMPANY LIMITED, SHEOPUR, DISTRICT SHEOPUR,
MP.

.....PETITIONER
(BY SHRI D.K. DIXIT - ADVOCATE)

AND

1. STATE OF MADHYA PRADESH THROUGH THE
PRINCIPAL SECRETARY, DEPARTMENT OF
GENERAL ADMINISTRATION, MANTRALAYA,
VALLABH BHAWAN, BHOPAL
2. M.P. STATE LEVEL SCRUTINY COMMITTEE OF
CASTE CERTIFICATE THROUGH ITS
SECRETARY/COMMISSIONER, TRIBAL
DEVELOPMENT SATPUDA BHAWAN, BHOPAL.
3. MADHYA PRADESH MADHYA KSHETRA VIDYUT
VITRAN COMPANY LIMITED, BHOPAL
THROUGH ITS CHAIRMAN CUM MANAGING
DIRECTOR.
4. CHIEF GENERAL MANAGER (NORTH REGION)
MADHYA PRADESH MADHYA KSHETRA VIDYUT
VITRAN COMPANY LIMITED, MOTIJHEEL
STATION, GWALIOR.
......RESPONDENTS

(RESPONDENT NOS.1 AND 2/STATE BY SHIRI TAPAN BATHIRE - PANEL
LAWYER)
2

..............................................................................................................................................................................
Reserved on : 24.08.2023
Pronounced on : 31.10.2023
..............................................................................................................................................................................

This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:
ORDER

Since pleadings are complete and learned counsel for the parties are ready to argue the matter, therefore, it is heard finally.

2. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is challenging the legality, validity and propriety of orders dated 20.07.2016 (Annexure-P/25) whereby the State Level Caste Scrutiny Committee (in short the 'Committee') has passed the order holding therein that the petitioner does not belong to caste 'Dhoba' which in the State of Madhya Pradesh has been categorized as 'Scheduled Tribe' and also 18.01.2017 (Annexure-P/27) passed by respondent No.4 whereby the services of the petitioner have been terminated.

3. The challenge is founded mainly on the ground that the opinion of the Committee is improper because the Committee instead of considering the documents submitted by the petitioner to substantiate his case took cognizance of the documents which were not produced by the petitioner, however, according to the opinion of the Committee, those documents had to be produced.

4. Learned counsel for the petitioner submits that along with his claim, the petitioner had submitted the relevant documents even the caste certificate issued in favour of his father certifying that his father belongs to 'Dhoba' caste which has been categorized as 'Scheduled Tribe' in the State of Madhya Pradesh, but the Committee neither considered those

documents nor given any finding as to why those documents are not relevant to ascertain the caste of the petitioner. He submits that though the police had made an enquiry and given reports vide Annexure-P/16 and Annexure-P/17 holding therein that the petitioner belongs to caste 'Dhoba', but the said reports had also not been given any weightage. According to learned counsel for the petitioner, the opinion formed and order passed by the Committee are perverse and without any foundation. In support of his contention, he has relied upon a judgment of the Supreme Court reported in (2012) 1 SCC 113 [Anand Vs. Committee For Scrutiny & Verification of Tribe Claims & ors.] and also the orders passed by this Court in W.P. No.11642 of 2013 [Kumari Ratna Barapatre Vs. State of Madhya Pradesh and others]; W.P. No.6221 of 2020 [Paresh Nagpurkar Vs. The State of Madhya Pradesh and others]; W.P. No.5143 of 2005 [Dr. Yamini Khapre Vs. The State of M.P. and others] and W.P. No.8395 of 2017 |Kumari Swati Sonkusale Vs. State of Madhya Pradesh and others].

5. On the other hand, learned Panel Lawyer has opposed the submissions advanced by learned counsel for the petitioner and tried to justify the order passed by the Committee wherein especially in paragraph-12 the Committee had very categorically observed that the petitioner cannot be considered to be a candidate belonging to caste 'Dhoba' which has been categorized as 'Scheduled Tribe'. According to him, the petition is without any substance and is liable to be dismissed.

6. I have heard the arguments advanced by learned counsel for the parties and perused the record.

7. The dispute as has been shown in the present case is that on a complaint made against the caste of the petitioner saying that he does not

belong to caste 'Dhoba', the matter was taken up by the Committee which was competent to decide the dispute relating to caste of an individual. However, a report of an enquiry was called by the Committee and pursuant thereto, the DIG, Bhopal had submitted a report on 25.02.2014 before the Commissioner, Tribal Development, Bhopal wherein the DIG, Bhopal had found that the petitioner is of 'Dhoba' caste. From the impugned order, it is clear that though the caste certificates issued in favour of the petitioner's sister and also of his father were taken note of and then the Committee arrived at a conclusion that on the basis of reports submitted by the Superintendent of Police on 30.01.2014 and DIG on 25.02.2014, the caste of the petitioner was found of 'Dhoba', but thereafter a further enquiry was ordered and then, the statement of the petitioner's father got recorded and then the Committee finally found that the petitioner in support of his caste has failed to produce any certified document and as such, it was found that he does not belong to 'Dhoba' caste and as such, caste certificate issued in his favour on 31.12.2002 was cancelled.

8. From perusal of impugned order dated 20.07.2016 (Annexure-P/25), it is clear that the Committee on the basis of enquiry report of the DIG, Bhopal had issued a show-cause notice to the petitioner asking him to submit his reply and in paragraph-7 of the impugned order, the important ingredient of the reply submitted by the petitioner was reproduced whereby the petitioner had tried to clarify that the certificate in respect of his caste i.e. 'Dhoba' got issued in his favour on 31.12.2000. As per the petitioner's reply, all the documents relating to his caste were submitted on 25.02.2014. As per the reply of the petitioner for getting the caste certificate all the required documents were placed before the

authority by the representative of the petitioner on 31.12.2000 and only after examining those documents, the caste certificate of 'Dhoba' was issued in his favour. During the course of enquiry all the documents with regard to caste of the petitioner were submitted in the office of DIG, Bhopal on 25.02.2014. However, the order reveals that for ascertaining the caste of the petitioner, by an official letter dated 06.09.2014, further enquiry was ordered by the Superintendent of Police, Bhopal. Thereafter, the petitioner's father was interrogated in which he had stated that his son (petitioner) belongs to Scheduled Tribe which finds place at S.No.16. He had apprised that the petitioner's sister also belongs to 'Dhoba' caste and also produced a copy of the agreement with the employer where he was working in which his caste got recorded as 'Dhoba'. The report of Superintendent of Police contained the fact that no material was collected with regard to grant of any scholarship to the petitioner. That apart, it is also mentioned that the caste certificate of the petitioner was not found recorded in the office of Sub Divisional Officer, Tahsil Huzur, District Bhopal. The authority had also mentioned that the petitioner's father could not produce any document that in the year 1950, he was a member of Scheduled Tribe and then the Committee arrived at a conclusion that the petitioner did not produce any document showing that he belongs to 'Dhoba' caste.

9. While passing the order dated 20.07.2016 (Annexure-P/25), the Committee did not assign any reason as to why the certificate of the petitioner's father containing 'Dhoba' caste cannot be taken into account nor benefit of the same can be given to the petitioner. The Committee had also not given any finding in respect of genuineness of the caste certificate of the petitioner's father. Apart from above, the Committee had

also not given any finding in respect of caste certificate of the petitioner's sister. The Committee failed to assign any reason in respect of the fact when a certificate of 'Dhoba' caste issued in favour of the petitioner's father and also of his sister, then as to why the benefit of the said certificate cannot be granted to the petitioner. The Superintendent of Police had also not given any specific finding in respect of genuineness of the caste certificate issued in favour of the petitioner's father and further that the case under which caste certificate was issued never got recorded and the authority had never issued any such certificate. Under such circumstances, the Court has to see whether the Committee was the competent authority to ascertain the correctness of the caste certificate issued and the enquiry conducted by the Committee was as per the procedure prescribed by the Supreme Court in the case reported in (1994) 6 SCC 241 [Kumari Madhuri Patil and another Vs. Addl.

Commissioner, Tribal Development and others] or not.

10. However, at the time of argument, learned counsel for the petitioner has drawn attention of this Court towards the reports of DIG and also of Superintendent of Police, in which it was found that the caste of the petitioner was of 'Dhoba'. The caste certificate of the petitioner's father containing 'Dhoba' was issued in the year 1981 and, thus, where was the occasion for the Committee to come to a conclusion that the petitioner does not belong to 'Dhoba' caste. The order passed by the Committee is otherwise non-speaking without containing any reason and as such, the finding given by the Committee is perverse to the report of Superintendent of Police. However, as per the return of the respondents, a letter got issued by the Sub Divisional Officer, Tahsil Huzuar, District Bhopal to the Deputy Superintendent of Police, AJAK, District Bhopal

whereby it was disclosed that the caste certificate of the petitioner is not recorded in the office, but nowhere it is stated that the caste in which the certificate was issued is fake. Even otherwise, in the other documents produced by the respondents, it is shown that the caste of the petitioner is shown to be of 'Dhoba' and, therefore, the finding given by the Committee that no document produced by the petitioner to show that he belongs to 'Dhoba' caste is contrary to record.

11. The Supreme Court in the case of Anand (supra) on which learned counsel for the petitioner has placed reliance has observed as under:-

"14. Article 342 of the Constitution of India empowers the President of India to specify the tribes or tribal communities or parts or groups within them which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Under clause (2) of Article 342, the power to include in or exclude from the lists of Scheduled Tribes specified in a notification, issued under clause (1) of Article 342 of the Constitution, vests in Parliament. In exercise of the powers conferred by Article 342 of the Constitution, the President issued an order, called the Constitution (Scheduled Tribes) Order, 1950. This was followed by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1956. In the year 1976, Parliament enacted the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976. Part IX of the Third Schedule to the amending Act specifies the Scheduled Tribes for the State of Maharashtra. One of the Scheduled Tribes so specified therein is "Halba", "Halbi".

15. In Madhuri Patil, this Court took note of the fact that the benefit of reservation of seats in educational institutions, and other appointments were being denied to the genuine tribals on the basis of false caste certificates. Terming such caste claims as "pseudo status", the Court observed that spurious tribes had become a threat to the genuine tribals. Emphasising the need to ensure that the benefit of reservation must be made available only to genuine persons, who belong to the notified caste or tribe, the Court said that such claims should be judged on legal and ethnological basis.

16. Highlighting the relevance of affinity test while considering a caste claim, the Court observed thus: (Madhuri Patil case [(1994) 6 SCC 241: 1994 SCC (L&S) 1349: (1994) 28 ATC 259], SCC p. 252, para 10) "10...The anthropological moorings and ethnological kinship affirmity (sic affinity) gets genetically ingrained in the blood and no one would shake off from past, in

particular, when one is conscious of the need of preserving its relevance to seek the status of Scheduled Tribe or Scheduled Caste recognised by the Constitution for their upliftment in the society. The ingrained tribal traits peculiar to each tribe and anthropological features all the more become relevant when the social status is in acute controversy and needs a decision. The correct projectives furnished in pro forma and the material would lend credence and give an assurance to properly consider the claims of the social status and the officer or authority concerned would get an opportunity to test the claim for social status of particular caste or tribe or tribal community or group or part of such caste, tribe or tribal community. It or he would reach a satisfactory conclusion on the claimed social status."

17. Again, in Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri [(1995) 4 SCC 32: 1995 SCC (L&S) 914 (1995) 30 ATC 166], while reiterating the guidelines laid down in Madhuri Patil ((1994) 6 SCC 241 1994 SCC (L&S) 1349: (1994) 28 ATC 259], this Court observed that it was high time that the Government of India should have the matter examined in greater detail and bring about a uniform legislation with necessary guidelines and rules prescribing penal consequences on persons who flout the Constitution and corner the benefits reserved for the real tribals, etc., so that the menace of fabricating records to gain unconstitutional advantages could be prevented.

18. In the light of the aforesaid observations, the State of Maharashtra enacted the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (for short "the Act"). The Act made statutory provisions for verification and scrutiny of caste claims by the competent authority and subsequently by the Caste Scrutiny Committee. In exercise of its rule-making power under the Act, the State notified the Rules laying down a complete procedure for obtaining and verification of Scheduled Tribes certificate. Therefore, insofar as the State of Maharashtra is concerned, the verification and grant and/or rejection of Scheduled Tribe certificate by the Caste Scrutiny Committee has to be as per the procedure prescribed in the Rules.

19. Rule 11(2) enumerates a list of documents to be filed along with the application to the Caste Scrutiny Committee. Rule 12 prescribes the procedure to be followed by the Caste Scrutiny Committee on receipt of such application in the prescribed format. It provides that if the Caste Scrutiny Committee is not satisfied with the documentary evidence produced by the applicant, it shall forward the application to the Vigilance Cell for conducting the school, home and other enquiry. Sub-rule (3) of

Rule 12 requires the Vigilance Officer to visit the local place of residence and the original place from where the applicant hails and usually resides.

20. The Rules further stipulate that the Vigilance Officer shall personally verify and collect all the facts about the social status claimed by the applicant or his parents or guardians, as the case may be. He is also required to examine the parents or the guardians of the applicant for the purpose of verification of their tribe. It is evident that the scope of enquiry by the Vigilance Officer is broad-based and is not confined only to the verification of documents filed by the applicant with the application or the disclosures made therein. Obviously, the enquiry, supposed to be conducted by the Vigilance Officer, would include the affinity test of the applicant to a particular tribe to which he claims to belong. In other words, an enquiry into the kinship and affinity of the applicant to a particular Scheduled Tribe is not alien to the scheme of the Act and the Rules. In fact, it is relevant and germane to the determination of social status of an applicant.

21. We are of the view that for the purpose of examining the caste claim under the Rules, the following observations of this Court in Madhuri Patil [(1994) 6 SCC 241: 1994 SCC (L&S) 1349 (1994) 28 ATC 259] still hold the field: (SCC p. 255, para 13) "13. 5. 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 should also 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 pro forma, in particular, of the Scheduled Tribes relating their peculiar anthropological and to ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies, etc. by the castes or tribes or tribal communities concerned, etc."

22. It is manifest from the aforeextracted paragraph that the genuineness of a caste claim has to be considered not only on a thorough examination of the documents submitted in support of the claim but also on the affinity test, which would include the anthropological and ethnological. traits, etc., of the applicant. However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim. Nevertheless, we feel that the following broad parameters could be kept in view while dealing with a caste claim:

(i) While dealing with documentary evidence, greater reliance may be placed on pre-Independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as

compared to post-Independence documents. In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact, the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant;

(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, the 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 tribe's 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.

23. Needless to add that the burden of proving the caste claim is upon the applicant. He has to produce all the requisite documents in support of his claim. The Caste Scrutiny Committee merely performs the role of verification of the claim and therefore, can only scrutinise the documents and material produced by the applicant. In case the material produced by the applicant does not prove his claim, the Committee cannot gather evidence on its own to prove or disprove his claim.

24. Having examined the present case on the touchstone of the aforesaid broad parameters, we are of the opinion that the claim of the appellant has not been examined properly. We feel that the documentary evidence produced by the appellant in support of his claim had been lightly brushed aside by the Vigilance Officer as also by the Caste Scrutiny Committee. Insofar as the High Court is concerned, it has rejected the claim solely on the basis of the affinity test. It is pertinent to note that some of

these documents date back to the pre-Independence era, issued to the appellant's grandfather and thus, hold great probative value as there can be no reason for suppression of facts to claim a non-existent benefit to the "Halbi" Scheduled Tribe at that point of time.

25. From the documents produced by the appellant, it appears that his near paternal relatives had been regarded as belonging to the "Halbi" Scheduled Tribe. The Vigilance Officer's report does not indicate that the documents produced by the appellant in support of his claim are false. It merely refers to the comments made by the headmaster with reference to the school records of the appellant's father's maternal brother and his aunt, which had been alleged to be tampered with, to change the entry from Koshti Halba to Halba and nothing more. Neither the headmaster was examined, nor any further enquiry was conducted to verify the veracity of the headmaster's statement. It is of some importance to note at this juncture that in similar cases, involving the appellant's first cousin and his paternal uncle, the High Court, while observing non-application of mind by the Caste Scrutiny Committee, had decided a similar claim in their favour.

26. We are convinced that the documentary evidence produced by the appellant was not examined and appreciated in its proper perspective and the High Court laid undue stress on the affinity test. Thus, the decision of the Caste Scrutiny Committee to cancel and confiscate the caste certificate as well as the decision of the High Court, affirming the said decision is untenable. We are, therefore, of the opinion that the claim of the appellant deserves to be re-examined by the Caste Scrutiny Committee. For the view we have taken on facts in hand, we deem it unnecessary to refer to the decisions cited at the Bar.

27. Resultantly, the appeal is allowed; the decisions of the Caste Scrutiny Committee and the High Court are set aside and the case is remitted back to the Caste Scrutiny Committee for fresh consideration in accordance with the relevant Rules and the aforesaid broad guidelines. However, the parties are left to bear their own costs."

12. Considering the above observation made by the Supreme Court and the manner in which the Committee was required to proceed in the matter or to consider the documents submitted by the petitioner, it appears that the Committee while considering the petitioner's case had neither examined the documents produced by him in a proper manner nor taken note of the enquiry report submitted by the police authorities. Since the documents and observation made by the officers who conducted the enquiry had been ignored totally by the Committee, therefore, this Court

has no hesitation to hold that while reaching to conclusion and giving finding in respect of the caste of the petitioner, the Committee had committed illegality and as such, the order dated 20.07.2016 (Annexure-P/25) passed by the Committee and also the order dated 18.01.2017 (Annexure-P/27) passed by respondent No.4 are not sustainable in the eyes of law and, therefore, they are hereby set aside. However, in pursuance to the aforesaid impugned orders, if any consequential action has been taken against the petitioner, the same is also set aside.

13. Ex consequentia, the petition filed by the petitioner stands allowed.

(SANJAY DWIVEDI) JUDGE

Devashish DEVASHISH MISHRA 2023.11.02 10:47:48 +05'30'