-1- W.P. No. 1256 of 2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1256 OF 2003 Pradeep Ramchandra Koli, aged adult, residing at ) Priyadarshani Colony, Uchgaon, Taluka Karvir, Dist. Kolhapur )...Petitioner versus 1. State of Maharashtra through its Secretary, ) Tribal Development Department, Mantralaya, ) Mumbai-400 032. ) 2. Committee for Scrutiny and Verification of Tribe Claims, ) Pune Division, Pune, through its Deputy Director (R) and ) Member Secretary, having its office at Queen's Garden, ) Pune-411 001 ) 3. Executive Magistrate, Gadhinglaj, Dist. Kolhapur. ).Respondents Mr. R.K. Mendadkar for the petitioner. Mr. V.S. Gokhale, Assistant Government Pleader, for the respondents. CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. DATE: JULY 23, 2010. ORAL JUDGMENT : (Per R.M. Savant, J.) 1. The question as to whether the applicant i.e. petitioner herein belongs to Mahadeo Koli, Scheduled Tribe, once again comes before us by way of this petition. -2- W.P. No. 1256 of 2003 2. By way of this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order of the Caste Scrutiny Committee dated 22nd January, 2003 by which order the Caste Scrutiny Committee has invalidated the caste claim of the petitioner as belonging to Mahadeo Koli, Scheduled Tribe. 3. The factual matrix involved in the petition can be stated thus:- 3.1 The petitioner claims to belong to be Mahadeo Koli, which is notified as a Scheduled Tribe under the Presidential Notification issued under Article 342 (1) of the Constitution of India. The father of the petitioner was granted a caste certificate by the Mamlatdar, Gadhinglaj, District Kolhapur on 24th September, 1956. It appears one Bhangari Lagama Koli, uncle of the petitioner, was also granted caste certificate by the Additional District Magistrate, Kolhapur on 11th September, 1956. The petitioner, probably relying upon the certificates granted to his father and uncle, applied for a caste certificate as belonging to Mahadeo Koli, Scheduled Tribe, which was granted to the petitioner by the Respondent No.4 herein on 8th September, 1977. 3.2 In so far as the family members of the petitioner are concerned, his real brother one Dr. Prakash Ramchandra Koli, was seeking admission to a professional course, his admission to the professional course came to be -3- W.P. No. 1256 of 2003 cancelled by the college authorities on the ground that he did not belong to Mahadeo Koli Scheduled Tribe which resulted in the said Prakash Ramchandra Koli filing Writ Petition No. 3030 of 1980 in this Court challenging the order of the college authorities which had cancelled his admission. The said writ petition came to be allowed by a judgment and order dated 16th January, 1981 by a Division Bench of this Court and the petitioner’s brother along with one Shrikant Bhangari Koli were held to be as belonging to Mahadeo Koli, Scheduled Tribe. It appears that the case of one Kum. Jyoti Prakash Patil, who is the niece of the petitioner, also came to be referred to the Caste Scrutiny Committee and in respect of the said Kum. Jyoti Prakash Patil, the Caste Scrutiny Committee invalidated the claim as she belonging to Mahadeo Koli, Scheduled Tribe, resulting in the said Kum. Jyoti Prakash Patil filing Writ Petition No. 5432 of 2002 in this Court which came to be allowed by a Division Bench of this Court by a judgment and order dated 9th October, 2002. However, prior to this, the said Prakash Ramchandra Koli (Patil) had filed Writ Petition No. 3212 of 1998 in respect of his daughters who were minors for the same relief that they be declared as belonging to Mahadeo Koli, Scheduled Tribe. On the basis of the judgment in Writ Petition No. 3030 of 1980 the said Writ Petition No. 3212 of 1998 came to be allowed by order dated 9th July, 1998. It is significant to note that the Division Bench in Kum. Jyoti Prakash Patil’s case relied upon the judgment of the Division Bench in Writ Petition No. 3030 of 1980 dated 16th January, 1981 and order of the Division Bench in Writ Petition No. 3212 of -4- W.P. No. 1256 of 2003 1998 dated 9th July,1998. The Division Bench in Jyoti Prakash Patil’s case commented adversely in the manner in which the Caste Scrutiny Committee had dealt with her case inasmuch as the Division Bench was of the view that the Committee could not have ignored the binding judgments and orders of this Court which were brought to its notice. 3.3 In so far as the present petitioner is concerned, it appears that he came to be appointed as a Clerk with the Respondent No.3 in a post meant for Scheduled Tribe. In terms of the procedure as regards a person claiming to be from the reserved category, the petitioner’s caste certificate came to be referred to the Caste Scrutiny Committee by respondent No.3 for verification. Before the Caste Scrutiny Committee, the petitioner has produced a host of documents which are mentioned in the order of the Caste Scrutiny Committee including the validity certificate dated 22nd September, 1995 issued by the Caste Scrutiny Committee in respect of the petitioner’s brother Dr. Prakash Ramchandra Patil and the decision of this Court in Writ Petition No. 3030 of 1980 dated 16th January, 1981. The Caste Scrutiny Committee, as required, conducted school and home enquiry. In so far as the said enquiry is concerned, the Police Inspector of the Vigilance Cell referred to the following entries from the school register which were concerning the petitioner’s near relations which were to the following effect. Sr. No. Reg. No. Name of the student Caste 1. /83 Laxman Lagamappa Koli Koli -5- W.P. No. 1256 of 2003 2. /138 Ramu Lagama Koli Koli 3. /54 Bhangari Lagama Koli Koli 4. 4/31 Dhulappa Lagamppa Koli Koli 5. 4/32 Kallappa Laxman Koli Koli 6. 4/150 Maruti Ramchandra Koli Koli In terms of the procedure, the enquiry report along with the documents was submitted to the petitioner for obtaining his say. The Caste Scrutiny Committee took into consideration the relevant material which was placed on record as well as the report of the Inspector of the Vigilance Cell wherein the caste of the petitioner’s father, real uncles Laxman Lagamappa Koli, Bhangari Lagamappa Koli and Dhulappa Lagamappa Koli is recorded as Koli and Hindu Koli respectively. Since the said documents pertain to the period 1926 to 1949 i.e. prior to the passing of the first Presidential order, the Committee observed that the said documents had more probative value vis-à-vis the caste claim of the petitioner. The Committee also took into consideration the fact that the entry in respect of the petitioner’s brother is also recorded as Hindu Koli. The Committee, by alluding to the fact that the caste of a person is determined on the basis of the caste of his parents, since caste is acquired by birth and in view of the fact that entries in respect of the petitioner’s father and real uncles was Koli and Hindu-Koli, opined that the caste of the petitioner could not be different than his father and uncles. -6- W.P. No. 1256 of 2003 3.4 The Committee, in so far as the affinity test was concerned, observed that the petitioner did not furnish any information relating to the customs, etc. of Mahadeo Koli, Scheduled Tribe, and whatever information was provided by the petitioner in the said affinity test, according to the Committee, could not be associated with Mahadeo Koli, Scheduled Tribe. 3.5 In so far as judgment of this Court in Writ Petition No. 3030 of 1980 on which reliance was placed by the petitioner, the Committee observed that at that time detailed enquiry in respect of the caste claim was not carried out as per the regime now applicable and though the Committee has not in terms said so, it is to be presumed that the Committee did not accede to the applicability of the judgment of this Court on the said ground. 4. We have heard the learned counsel for the petitioner, Shri Mendadkar, and the learned Assistant Government Pleader,Shri Gokhale, for the Respondents. On behalf of the petitioner, the principal contention of Shri Mendadkar is that in the teeth of the orders passed by this Court in respect of Dr.Prakash Ramchandra Koli and Kum. Jyoti Prakash Patil, a well as the order passed in Writ Petition No. 3212 of 1998, the Committee could not have rejected the caste claim of the petitioner as this Court has already adjudicated upon the claim of the near relations of the petitioner as belonging to Mahadeo Koli. The learned counsel further submitted that the material which was in relation to the -7- W.P. No. 1256 of 2003 petitioner’s niece Jyoti Patil is also relied upon in so far as the present petitioner is concerned, as it has been so recorded in the report of the Inspector of the Vigilance Cell. The Committee, having rejected the case of Kum. Jyoti Prakash Patil on the basis of the said material and this Court having allowed the writ petition filed by the said Jyoti Prakash Patil, it was not open for the Caste Scrutiny Committee to take a different view than the one which has been taken by this Court in Writ Petition No. 5432 of 2002 whereby the said Kum. Jyoti Prakash Patil has been held entitled to the grant of the certificate as belonging to Mahadeo Koli, Scheduled Tribe. In so far as this aspect is concerned, the learned counsel submitted that judicial propriety demands that we follow the precedents referred to hereinabove which are, according to him, binding. 5. Per contra, it is submitted by the learned Assistant Government Pleader, that after the judgment of the Division Bench which was delivered in the year 1981, much water has flown under the bridge inasmuch as by the pronouncement of the judgment in the case of Kum. Madhuri Patil vs. Commissioner, Tribal Development, 1994 (6) SCC 241, the Apex Court has laid down an elaborate procedure for validating the caste certificate. Thereafter, the law relating to issuance of caste certificate, its validation and the consequences of invalidation has now been codified into the Act of Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance -8- W.P. No. 1256 of 2003 and Verification of) Caste Certificate Act, 2000 as also the Rules framed thereunder. The learned AGP, therefore, submitted that the efficacy of the Division Bench judgment in Writ Petition No. 3030 of 1980 would stand denuded as at that time an elaborate procedure for validating the caste certificate, as at present now, was not in vogue. The learned AGP further submitted that so far as the Tribe Claim of the petitioner is concerned, it is well settled that each case stands on its own merits and merely because close relatives have been granted the caste certificate would not entitle a particular applicant to the same benefit. The learned AGP relying upon Kum. Madhuri Patil’s case submitted that the concept of res judicata would have no application in the matter of grant of a validity certificate. 6. We have bestowed our anxious consideration to the rival contentions of the parties. In so far as the principal ground on which the order is assailed viz. that in view of the precedents as already available by virtue of the orders passed by the Division Bench as in Writ Petition Nos. 3030 of 1980, 3212 of 1998 and 5432 of 2002, it is required to be noted that Writ Petition No. 3212 of 1998 was allowed by the Division Bench mainly on the ground that since the father’s petition being Writ Petition No. 3030 of 1980 was allowed, the Division Bench was of the view that the daughters on whose behalf Writ Petition No. 3212 of 1998 was filed could not be denied the caste certificate as belonging to Mahadeo Koli as it would lead to an anomalous situation whereby the daughters -9- W.P. No. 1256 of 2003 are said to belong to a different caste than the father. Therefore, mainly relying on the judgment in Writ Petition No. 3030 of 1980 that the said petition came to be allowed. In so far as Writ Petition No. 5432 of 2002 was concerned, the said writ petition was allowed by an order dated 9th October, 2002, the Division Bench in the said writ petition was of the view that the Caste Scrutiny Committee could not have dealt with the judgment of this Court in Writ Petition No. 3030 of 1980 and Writ Petition No. 3212 of 1998 in the manner done by the said Caste Scrutiny Committee. The Division Bench observed that in the judgment and order dated 16th January, 1981, in Writ Petition No. 3030 of 1980 this Court had, in no uncertain terms, held that there was satisfactory evidence which goes to show that the petitioner’s father belonged to Mahadeo Koli, Scheduled Tribe. The Division Bench further observed that this categorical finding was brushed aside by the Scrutiny Committee by describing the said finding as ‘inference’. In the light of the order of the Division Bench in Writ Petition Nos. 3030 of 1980 and 3212 of 1998, the said Writ Petition No. 5432 of 2002 came to be allowed by another Division Bench of this Court. 7. Since both the Division Benches in Writ Petition Nos. 3212 of 1998 and 5432 of 2002 have mainly relied upon the order passed in Writ Petition No. 3030 of 1980, it would be necessary to consider the facts in the said Writ Petition No. 3030 of 1980. The said Writ Petition No. 3030 of 1980 was filed by one Prakash Ramchandra Koli i.e. brother of the petitioner in the instant -10- W.P. No. 1256 of 2003 petition, challenging the action of the respective Colleges where the petitioners concerned in the said writ petition were admitted thereafter by scrutinising the caste claims of the petitioners therein, the Colleges had by letters dated 25th August, 1980 and 13th September, 1980 cancelled the provisional admissions granted to the said Prakash Ramchandra Koli, the petitioner in the companion Writ Petition No. 3030 of 1980. In the context of the said judgment, in so far as the petitioner in the said writ petition, Prakash Ramchandra Koli, was concerned, the Division Bench relied upon the certificate showing the caste of the petitioner therein and his father as belonging to Mahadeo Koli. The Division Bench observed that the same has been recorded in the school record and the certificate that had been issued as is evident from Annexures-M and G to the said petition. The Division Bench observed that since the college authorities had by merely stating that in the interview it transpired that the said Prakash Ramchandra Koli did not belong to Mahadeo Koli and, therefore, could not be granted provisional admission in a seat meant for the said category, the said action, according to the Division Bench, could not be countenanced as there was no material on record to justify the conclusions reached by the college authorities. Therefore, from the facts of the said case it is clear that the College authorities had cancelled the admission on the ground that in the interview it was discovered that the petitioners therein amongst whom was Prakash Ramchandra Patil did not belong to Mahadeo Koli, Scheduled Tribe. The Division Bench in the said case relying upon the school record and certificate had -11- W.P. No. 1256 of 2003 allowed the said writ petition and allowed the petitioners to continue the prosecution of studies in the respective professional courses to which they were admitted. It is, therefore, clear that in so far as the petitioners in the said case were concerned, no elaborate process had been followed before issuance of the caste certificate to them. As we have mentioned hereinabove and as submitted by the learned AGP for the respondents, much water has flown under the bridge since the time when the Division Bench of this Court decided the said Writ Petition No. 3030 of 1980. The Apex Court, considering the seriousness involved in the process of validation of a caste or tribe claim has laid down an elaborate procedure which finds place in the judgment of the Apex Court in Kum. Madhuri Patil’s case which is of the year 1994 i.e. much after the judgment of the Division Bench in the said Writ Petition No. 3030 of 1980. Another defining fact, in our view, is that the entire procedure of issuance of caste certificates, their validation and the consequences of invalidation have now been codified by the Act of 2000. In our view, since issuance of caste certificate to the said Prakash Ramchandra Koli as belonging to Mahadeo Koli, Scheduled Tribe did not have imprimatur of the process now in vogue, the petitioner in the instant petition cannot rely upon the said judgment of this Court in support of his case. In our view, on account of the elaborate procedure as well as the Act of 2000 now in force, the efficacy of the said order itself stands denuded and does not further the case of the petitioner. As is well settled by a catena of judgments right from Kumari Madhuri Patil’s case that each claimant has to stand on his or -12- W.P. No. 1256 of 2003 her own feet in respect of the caste claim propounded by him or her. In the instant case, if we see the material on record, which has been referred to by the Caste Scrutiny Committee in the body of the order, it unmistakably indicates that the entries in respect of the father and the real uncles of the petitioner viz. Laxman Lagamappa Koli, Bhangari Lagamappa Koli and Dhulappa Lagamappa Koli is recorded as Koli and Hindu Koli respectively. The said documents being of pre-constitution period i.e. for the period 1926 to 1949, therefore, carry more probative value and taking into consideration the said documents, the Committee has rightly come to the conclusion that the petitioner cannot lay a claim to being Mahadeo Koli, Scheduled Tribe. It is not only the said documents but on the basis of the affinity test also wherein the information provided by the petitioner was not anywhere near that concerning Mahadeo Koli, the Committee has concluded that the petitioner has failed to substantiate his case as belonging to Mahadeo Koli, Scheduled Tribe. In our view, the findings of fact recorded by the Committee in the impugned order do not merit any interdiction at our hands in our extraordinary jurisdiction under Article 226 of the Constitution of India. 7. A useful reference in this respect could be made to the judgment of the Apex Court in the case of Raju Ramsing Vasave vs. Mahesh Deorao Bhivapurkar and others1 . Paragraphs 26, 27 and 28 of the said report is material and are reproduced hereunder. 1 (2008) 9 SCC 54 -13- W.P. No. 1256 of 2003 “ 26. Where the factual foundation arrived at by a committee authorised in this behalf concludes that a person is not a member of the Scheduled Tribe would remain operative unless set aside by a superior court. The judgment of the High Court in favour of Respondent 1 was rendered on a wrong premise. The claim of the respondents may be that he belonged to the Halba tribe but, therefore, no factual foundation was placed before the High Court. The High Court relied solely n on its earlier decision to hold that Koshti would come within the purview of the Scheduled Tribe of Halba or Halbi. The decision was rendered in 1988. The records maintained by the School where the respondent studied were not placed before the High Court. Only when the Caste Scrutiny Committee, a statutory Committee, proceeded to enquire into the matter, the truth came out. 27. We do not mean to suggest that an opinion formed by the Committee as regards the caste of the near relative of the applicant would be wholly irrelevant, but, at the same time, it must be pointed out that only because, by mistake or otherwise, a member of his family had been declared to be belonging to a member of the Scheduled Tribe, the same by itself would not be conclusive in nature so as to bind another committee while examining the case of other members of the family in some detail. If it is found that in granting a certificate in favour of a member of a family, vital evidences had been ignored, it would be open to the Committee to arrive at a different finding. 28. We reiterate that to fulfil the constitutional norms, a person must belong to a tribe before he can stake his claim to be a member of a notified Scheduled Tribe. When an advantage is obtained by a person in violation of the constitutional scheme, a constitutional fraud is committed.” What can be culled out from the said paragraphs is that a decision rendered on a wrong premise wherein no factual foundation was placed, would not operate as res judicata, and though the opinion formed by the Committee as regards cases of the near relatives would not be wholly irrelevant but at the same time it must -14- W.P. No. 1256 of 2003 be pointed out that only by mistake or otherwise a member of his family was declared as a member of the Scheduled Tribe, the same itself would not be conclusive in nature so as to bind another Committee while examining the case of any other member of the family in some detail. 8. Having gone through the impugned order passed by the Committee, we do not find any illegality or infirmity in the same for us to interfere in the above writ petition which is accordingly dismissed and Rule discharged. The interim relief which is operating in this petition since its admission and considering the fact that the petitioner is in service, the same is continued for a period of eight weeks from date. P. B. MAJMUDAR, J. R.M. SAVANT, J.