1 wp5066.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5066 OF 2009 WITH CIVIL APPLICATION NO.9066 OF 2010 Shri Sunil s/o Baliram Maddewad, age 24 years, occupation: Student, r/of village Barbada,Tq.Naigaon(Kh) District Nanded. Petitioner versus 01. The State of Maharashtra, Department of Tribal Development, Mantralaya, Mumbai-32, through its Secretary. 02. The Scheduled Tribe Certificate Scrutiny Committee, Aurangabad Division, Kashmira Bhawan, Near Baba Petrol Pump, Aurangabad, through its Member Secretary. 03. The Sub Divisional Officer, Degloor, Taluka Degloor, District : Nanded. 04. The Principal, Shri Bhausaheb Hire Government Medical College, Dhule, District Dhule 05. The Maharashtra University of Health Sciences, Nashik. Respondents ------------------------------------------------------ Shri A.S. Golegaonkar, Advocate, for the petitioner. Shri S.K. Kadam, A.G.P. for Respondent Nos.1,3 and 4. Shri R.P. Phatke, Advocate, for Respondent No. 2. Shri K.D. Bade Patil, Advocate, for Respondent No. 5. ------------------------------------------------------ 2 wp5066.09 Coram: Naresh H. Patil and Shrihari P. Davare,JJ. Judgment reserved on: 03.12.2010. Judgment pronounced on: 13.12.2010. Judgment (Per: Shrihari P. Davare, J.) 01. Rule. Rule made returnable forthwith, with the consent of learned counsel for the parties and taken up for final hearing at admission stage itself. 02. By the present petition filed under Article 226 of the Constitution of India, the petitioner has prayed for quashment of the decision of the Respondent No.2-Committee in Case No. DD/TCSC/NAN/EDUCATION/222/04 dated 19.5.2009, rejecting Tribe Claim of the Petitioner, and declaration that the Petitioner belongs to "Mahadeo Koli" Scheduled Tribe by issuing appropriate writ, orders or directions. The said decision of the Scrutiny Committee is produced at Exh.D to petition. 3 wp5066.09 FACTUAL MATRIX 03. The facts and events leading to present petition are that Petitioner is resident of village Barbada, Taluka Naigaon (Kh), District Nanded and claims to be belonging to Mahadeo Koli Scheduled Tribe. Respondent No.1 is the State of Maharashtra represented through Tribal Development Department, Mantralaya, Mumbai and Respondent No.2 is the Scheduled Tribe Certificate Scrutiny Committee, Aurangabad Division, Aurangabad, represented through its Member Secretary, whereas Respondent No. 3 is the Sub Divisional Officer, Degloor, District Nanded. Respondent Nos. 4 and 5 have been impleaded by way of amendment, on 11.10.2010, and the Respondent No.4 is the Principal, Shri Bhausaheb Hire Government Medical College, Dhule, District Dhule, whereas the Respondent No.5 is Maharashtra University of Health Sciences, Nashik. 4 wp5066.09 04. According to the petitioner, on 30.7.2003, Sub Divisional Officer, Degloor (Respondent No.3) has issued caste Certificate in favour of the Petitioner by following due procedure, certifying that the petitioner belongs to Mahadeo Koli which is recognized as Schedule Tribe at serial No.29, and the copy of the said certificate is produced at Exhibit A to the petition (Page 24). Thereafter, when the petitioner was studying in 12th standard, the said caste certificate was referred to Respondent No.2-Scrutiny Committee, Aurangabad, through the Head Master, Jawaharlal Neharu Secondary and Higher Secondary School, Barbada, District Nanded. Meanwhile, it is the contention of the petitioner, that he got admission to M.B.B.S. course from reserved category and now he has completed the said course. After making enquiry through vigilance Officer and considering the documents submitted by the Petitioner in support of his social status claim, the Respondent No.2- Committee invalidated the caste claim of the 5 wp5066.09 petitioner, by order passed on 31.12.2005. According to the petitioner, the said order was passed by Respondent No.2-Committee exparte and without providing adequate opportunity of hearing to the petitioner. The copy of the said order dated 31.12.2005 is produced at Exh.B to petition(pg.26). 05. Being aggrieved and dissatisfied by the said order passed by the Respondent No.2-Committee, petitioner filed Writ Petition No.3067/2006, challenging the said order before this Court. Accordingly, this Court passed order therein on 27.2.2009 and remitted the matter back to Respondent No.2-committee with directions to pass order in respect of social status claim of the petitioner afresh, after affording opportunity of hearing to the petitioner and this Court also directed that no adverse action be taken against the petitioner only on the ground that his caste claim was invalidated till the decision of the Committee, afresh. The copy of the said order is 6 wp5066.09 produced at Exhibit C to petition (page 36). 06. It is the contention of the petitioner that he produced various documents before Respondent No.2-Committee, such as, school record of his father, mother, of himself and his sister, as well as their caste certificates issued by the competent authority. The petitioner also submitted birth register of his father, as well as his mother, wherein their caste is recorded as "Mahadeo Koli". Moreover, the petitioner also produced xerox copy of Khasrta Pahani Patrak in respect of his grand father namely Mahadu Piraji Maddewad and the copy of the certificate issued by Akhil Bhartiya Adiwasi Mahadeo Koli Samaj Sanghatna in favour of the Petitioner. Besides that, he also produced validity certificates along with genealogy and affidavit of his cousin brother Dilip Namdeo Maddewad and also the caste certificate of another cousin from maternal side, namely, Kumari Vidya Shivram Boinwad, before Respondent No.2-Committee. 7 wp5066.09 07. However, it is the grievance of the petitioner that in spite of producing voluminous evidence as referred to hereinabove, Respondent No. 2-Committee rejected the Trible Claim of the petitioner, by placing undue reliance on the entries collected by the Vigilance Officer from the School Record of the persons whose surnames are Maddewad but whose caste is recorded as "Koli", without verifying their relationship with the petitioner and, accordingly, invalidated the social status claim of the petitioner as "Mahadeo Koli" Schedule Tribe by the impugned order dated 19.5.2009, the copy whereof is produced at Exh D (page 41). According to the petitioner, Respondent No.2-Committee has followed hollow formalities and the fresh decision rendered by Respondent No.- Committee on 19.5.2009, even after remitting back the matter, is the same as decided earlier on 27.2.2009. Being aggrieved and dissatisfied by the said order dated 19.5.2009 passed by Respondent No. 8 wp5066.09 2 Committee, the Petitioner has assailed the same in the present petition. SUBMISSIONS:- 08. Shri A.S.Golegaonkar, learned counsel for the petitioner canvassed that earlier order dtd. 31.12.2005 and the impugned order dated 19.5.2009 passed by Respondent No.2-Scrutiny Committee after remitting the matter back to it, are identical and Respondent-Committee has passed the impugned order dated 19.5.2009 without application of mind and without considering the vital documents produced by petitioner and hence, submitted that same deserves to be quashed and set aside. It is also argued by learned counsel for the petitioner that there are no comments by Respondent No.2-Committee in respect of the document produced at serial No.21 i.e. xerox copy of birth certificate in respect of his father issued by Gram Sevak, wherein his father's caste is mentioned as "Mahadeo Koli". Grievance of the petitioner is also that Resp.No.2-Committee did not 9 wp5066.09 call for original register from the school and did not verify the factual position and thus proceeded to pass the impugned order dated 19.5.2009. 09. It is also canvassed by Shri Golegaonkar, learned Counsel for the petitioner that there is no interpolation in respect of entry of Kashiram, who is the eldest uncle of the petitioner. It is also canvassed that the caste validity certificate of petitioner's cousin, namely, Dilip Namdeo Maddewad was produced before Respondent No.2-Committee, along with genealogy, but the Committee observed that no genealogy and affidavit of said Dilip were produced, and the said observation is incorrect. It is also submitted by the learned Counsel for the petitioner that the petitioner asked for re- enquiry regarding vigilance cell report dated 22.9.2005, by giving letter dated 27.9.2005, contending that he had not accepted the said enquiry report, but such re-enquiry was not made. It is further stated that the vigilance officer had 10 wp5066.09 not recorded statements of parents of the petitioner, which also vitiates the vigilance cell report due to non compliance of mandatory rule Nos. 5,6 and 12 and also in view of observations made by Nagpur Bench of this Court, in the case of Heera vs. S.T.C.C.S. Committee, reported at 2010 (6) Mh.L.J. 274, which read thus: " The rule requires the Vigilance Cell to examine the parents or guardians of the applicant. The word "parents" implies both, the father and the mother. The need for examining the father as well as the mother cannot be undermined in a case of this nature. it is well-known that in a patriarchal society, caste is determined by the caste of the father. An enquiry into the candidate's caste can be best made made by examining the father or others on the paternal side, such as, uncles. it is not possible to produce a correct result in scrutiny without examining the father or such other relatives on the paternal side as are available. The Rule requires the vigilance cell to submit a report only after examining both the parents. The vigilance cell in the present case, has acted contrary to the Rules in holding the enquiry and submitting the report. The order of the Caste Scrutiny Committee rests on such a report and is, therefore, vitiated. " 10. Accordingly, learned counsel for the petitioner urged that the impugned order dated 11 wp5066.09 19.5.2009 passed by Resp.No.2-Scrutiny Committee is unsustainable and erroneous and same deserves to be quashed and set aside. 11. Respondent No.2-Scrutiny Committee filed affidavit in reply, which is sworn in by Mr. Indrajit Pandurang Kamble, Research Officer, Scheduled Caste Scrutiny Committee, Aurangabad Division, Aurangabad, and thereby denied averments made in the present petition, unless admitted specifically therein.It is stated in said affidavit in reply that the petitioner was given sufficient opportunity of hearing and petitioner himself and his father participated during the hearing, and the petitioner also submitted reply to the vigilance cell report dtd.27.9.2005. However, the petitioner did not file his affidavit or affidavit of Dilip Namdeo Maddewad, along with genealogy and thus failed to prove his relationship with said Dilip Namdeo Maddewad. It is also stated that intention of the petitioner is to protract the matter. 12 wp5066.09 12. The said affidavit also recites that the vigilance officer made enquiry of caste claim of father of Dilip Maddewad, namely, Namdeo Dhondiba Maddewad and during the said enquiry, it was found from the school record that the caste of Namdeo Dhondiba Maddewad was recorded as "Koli" and the date of admission of Namdeo Maddewad was shown to be 22.7.1960. The vigilance cell stated in its report dated 12.6.2001 in respect of Dilip Maddewad that father of Dilip studied upto 12th standard and in college record, the caste of Namdeo was mentioned as "Mahadeo Koli". This oldest information of Namdeo had not been noticed by the vigilance cell in its report about enquiry of Dilip Namdeo Maddewad. This oldest information was not before the Committee while deciding caste claim of Dilip Namdeo Maddewad and, therefore, the petitioner cannot take benefit of validity granted to the caste of said Dilip Namdeo Maddewad. Apart from it, it is also said that the petitioner failed to prove any relationship with said Dilip Maddewad. 13 wp5066.09 It is also recited in the said affidavit in reply that in view of the aforesaid information gathered during the course of enquiry of present petitioner's case claim, the scrutiny committee proposes to reopen the subject matter of Dilip s/o Namdeo Maddewad and respondent No.2-committee is praying such liberty to the Hon'ble Court. 13. The said affidavit-in-reply also recites that the caste claim of Vidya Shivram Boinwad is also not of assistance to the petitioner, as said Vidya is not relative of the petitioner as defined under rule 2 (1) (f) of the Maharashtra Scheduled Tribe (Regulation of Issuance & Verification of) Certificate Rules, 2003. It is also stated that the petitioner submitted information at the time of interview on 27.4.2009. Moreover, the vigilance officer also noted that the word "Mahadeo" noticed in the school record is in different ink and handwriting. The petitioner and his father filed information in the prescribed form, namely, 14 wp5066.09 interview form and even the petitioner did not deny or explain in reply, about the words which were written in different ink and handwriting. 14. Moreover, it is also stated that the information furnished by the petitioner about the tradition, occupation, god/goddesses, surnames, customs, culture, affinity, etc. were not associated with the real Scheduled Tribe community people and thus he has utterly failed to prove his affinity and ethnic linkage towards the "Mahadeo Koli" Schedule Tribe. Apart therefrom, it is further stated that it is settled law that each and every case has to be considered on its own merits and in the present case, the scrutiny committee was required to consider entire material on record and then decide whether the caste claim of the petitioner was correct and genuine, but the petitioner failed to discharge burden of proving his caste claim. It is also stated that the petitioner and his father also could not rightly 15 wp5066.09 give answers about the mother tongue, festival, marriage ceremony and customs and thus failed to prove any affinity and ethnic linkage towards the Mahadeo Koli, Scheduled Tribe community 15. It is further stated that it is also settled principle of law that validity certificate granted to close relative of a candidate bears a persuasive value. but such validity granted to relative of a candidate cannot in law supersede the primary document i.e. the certificate or document denoting the caste either of the candidate himself or his father or relatives from paternal side. Accordingly, it is stated by Respondent No.2 that, the petitioner was given sufficient opportunity of hearing as directed by this Court in Writ Petition No.3067/2006 by order dated 27.2.2009, but in spite of that he failed to prove and establish that he belongs to "Mahadeo Koli" Scheduled Tribe and hence Respondent No.2 invalidated the said social status claim of the petitioner, by the impugned order 16 wp5066.09 dated 19.5.2009, rightly. Hence, it is stated that present petition bears no substance and is devoid of any merits and same deserves to be dismissed. 16. Learned Counsel Shri R.P.Phatke for Resp.No.2-Committee submitted that as regards earlier order passed by Respondent No.2-Committee on 31.12.2005, it was the grievance of petitioner that no hearing was given to him and, therefore, the matter was remanded back by this Court vide order dated 27.2.2009 in Writ Petition No.3067/2006 and, accordingly, after remand of the matter to Resp.No.2-Scrutiny Committee, the impugned order dated 19.5.2009 was passed by Resp. No.2-Committee after giving due opportunity of hearing to petitioner, wherein he himself and his father participated, as well as after considering the documents produced by petitioner and also considering vigilance cell report, which resulted into invalidating the caste claim of the petitioner as belonging to "Mahadeo Koli" Schedule Tribe. 17 wp5066.09 17. Moreover, learned Counsel Shri Phatke also submitted that there is no substance in the grievance made by the petitioner that the document at serial No.21, which is the xerox copy of birth certificate of his father issued by Gram Sevak, wherein his caste is mentioned as Mahadeo Koli, was not considered by Respondent No.2-Committee, since Respondent No.2-Committee has considered the documents at serial Nos. 6,12,17 and 21, wherein caste is mentioned as "Koli Mahadeo" and more particularly copy of birth certificate in respect of petitioner's father issued by Gram Sevak which discloses his date of birth as 3.2.1964 and commented that the said documents are of very recent period and issued on personal knowledge and, therefore, could not be considered to be conclusive proof for the tribe claim of the petitioner. 18. Besides that, learned counsel for the respondents also submitted that although the petitioner produced caste validity certificate of 18 wp5066.09 his cousin, namely, Dilip Namdeo Maddewad, the petitioner failed to produce the affidavit of the said blood relative and family tree, as well has not submitted supportive document to confirm his relationship with Dilip Maddewad and, therefore, Respondent No.2-Committee rightly rejected the said documents. 19. Moreover, learned counsel for the Respondents argued that the petitioner has not produced any school record of his forefathers to show that they belong to Koli Mahadeo Scheduled Tribe and the school record of the petitioner's blood relations shows the caste recorded as "Koli", as well as he has not produced the sufficient documentary evidence in support of his claim and he utterly failed to prove affinity and ethnic linkage towards Mahadeo Koli, Scheduled Tribe. It is also submitted that the petitioner has not produced record prior to 1950 in respect of his tribe claim and also the information furnished by petitioner 19 wp5066.09 about the tradition, occupation, god/goddess, surnames, customs, culture, affinity, following etc. to establish that he belong to Mahadeo Koli Scheduled Tribe community and, therefore, the scrutiny committee rightly arrived at conclusion that the petitioner does not belong to Mahadeo Koli Scheduled Tribe and accordingly, invalidated his tribe claim. 20. Accordingly, learned Counsel for the Respondent-Committee urged that Respondent No.2 has taken comprehensive view of the matter and after considering the documents and after giving hearing to the petitioner, invalidated his tribe claim and hence, no interference therein is warranted, in the present petition. CONSIDERATION:- 21. We have perused the contents of the petition, its annexures, vigilance cell report and the impugned order dated 19.5.2009, and also 20 wp5066.09 considered the judgments relied upon by learned counsel parties, as well as considered the submissions advanced by the learned counsel for the parties, anxiously, and at the outset, as per the directions issued in Writ Petition No.3067 of 2006 vide order dated 27.2.2009, it is apparent that Respondent No.2 Committee has given personal hearing to the petitioner on 27.4.2009 and thereafter passed the impugned order dated 19.5.2009. As regards the grievance made by the petitioner that document at serial No.21 which is xerox copy of the birth certificate of his father issued by Gram Sevak showing his caste as "Mahadeo Koli" was not considered by the Committee, it appears that there is no substance in the said grievance, since the impugned order dated 19.5.2009 indicates that the Committee considered the documents at serial Nos. 6,12,17 and 21, wherein caste is mentioned as "Koli Mahadeo" and more particularly in the birth certificate issued by Gram Sevak in favour father of the petitioner and 21 wp5066.09 the committee commented that it was a very recent document and issued on the basis of personal knowledge and hence could not be considered to substantiate the tribe claim of the petitioner. 22. Moreover, the vigilance cell report discloses that petitioner's father, namely, Baliram Mahadu Maddewad was resident of village Barbada, Tq. Naigaon (Kh) District Nanded and he took education at Barbada and the Vigilance Officer checked the school register and found that as per entry No.125 therein, date of birth of Baliram was shown to be 3.2.1964 and in caste column, his caste was mentioned as Hindu (Koli Mahadeo). However, it is observed in the vigilance report that the word "Mahadeo" appears to have been written subsequently. Moreover, the said report also discloses that petitioner's uncle, namely, Shivram Mahadu Maddewad also took education in school at village Badbada and his school register was also checked by the Vigilance Officer, wherein caste of 22 wp5066.09 Shivram was mentioned as "Koli Mahadeo", but the word "Mahadeo" was written subsequently. So was the position with another uncle of the petitioner, namely, Kashiram Mahadu Maddewad, who also was educated at village Badbada and entry No.395 regarding caste in the school register showed his caste as "Koli Mahadeo", but in his case also, the word "Mahadeo" was written subsequently. The said report further discloses that another uncle of the petitioner, namely, Vikram Mahadu Maddewad also took education at village Badbada and entry no.515 in the school register mentions his cast as "Koli" only. Accordingly, the Vigilance Officer obtained copies of the said entries from the school register. Thus, the said report discloses that the word "Mahadeo" has been interpolated later on in different ink and in different handwriting in the school register in respect of petitioner's father Baliram Mahadu Maddewad, two uncles, namely, Shivram and Kashiram Maddewad, but the school record of another uncle Vikram Maddewad discloses 23 wp5066.09 his caste as "Koli" only and not "Mahadeo Koli". We issued directions and called for aforesaid original school register which was produced by the Head Master of concerned school and we perused the above referred entries in the said register and the said record speaks volumes for itself. 23. Besides that, it also appears that Respondent No.2-Committee has also considered the documents produced by the petitioner before it and obtained information from the petitioner about tradition, occupation, God/Goddesses, Surnames, customs, culture, affinity etc. and came to the conclusion that the petitioner failed to prove his affinity and ethnic linkage towards "Mahadeo Koli" Scheduled Tribe. So also, it further appears that Respondent No.2-Committee considered the validity certificates granted to blood relatives of the petitioner and the said certificates have been discussed by the Committee in Statement "A" in the impugned order and dealt with it and came to the 24 wp5066.09 conclusion that those documents cannot be held as conclusive proof to determine the petitioner's Tribe Claim, since those are of very recent period and from 1970 to 2001 i.e. after passing the first Presidential Order of 1950, notifying the Scheduled Tribes. 24. In the circumstances, we are of the considered view that Respondent No.2-Committee gave personal hearing to the petitioner, as well as considered the various documents produced before it and also considered the Vigilance Cell report, and also enquired and obtained the information about the petitioner's affinity and ethnic linkage towards "Mahadeo Koli" Scheduled Tribe and thereafter passed the impugned order dated 19.5.2009, invalidating the tribe claim of the Petitioner, and there does not appear to be any flaw therein and the said order cannot be faulted with. Accordingly, we do not find any glaring infirmity or perversity in the impugned order, and 25 wp5066.09 therefore, no interference therein is warranted in the extra-ordinary writ jurisdiction of this Court. 25. In the result, present petition bears no substance and same is devoid of any merits and hence, same is dismissed. Rule stands discharged. 26. In view of dismissal of Writ Petition, Civil Application No.9066 of 2010 does not survive and hence, same also stands dismissed. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) pnd/wp5066.09