{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3391 OF 2009 Gulabsing Harsingh @ Suratsing Sonawane (Bhil) R/o Tech Bhilati (Eklavya Nagar) Dondaicha Tq-Shindkheda Dist-Dhule PETITIONER VERSUS 1. The State of Maharashtra Through District Revenue Collector, Dhule Dist-Dhule 2. Scheduled Tribe Certificate Scrutiny Committee Nandurbar Division, Nandurbar 3. Dondaicha Varwade Municipal Council Dondaicha, Tq-Shindkheda, Dist-Dhule Through its Chief Officer 4. State Election Commission Through its Commissioner 5. Madan Sajan Sonawane R/o Tek Bhilati, Dondaicha, Tq-Shindkheda Dist-Dhule RESPONDENTS ....... Mr.P.M.Shah Sr. Counsel i/b Mr.S.P.Shah, for petitioner Mr.V.H.Dighe, AGP for respondent No.1 Mr.P.S.Patil, Advocate for respondent No.2 Mr.S.T.Shelke, Advocate for respondent No.4 Mr.A.S.Bayas, Advocate for respondent No.5 ....... {2} [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] DATE : 2nd September 2009 ORAL JUDGMENT (PER P.V.HARDAS, J.) : 1. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties this petition is heard finally at the stage of admission. 2. This petition, under Article 226, takes exception to an order passed by the respondent Scrutiny Committee, dated 01.06.2009 invalidating the tribe claim of the petitioner as belonging to Bhil Scheduled Tribe. 3. It appears that the petitioner had contested the election of post which was reserved for Scheduled Tribe candidate and consequently the certificate which was issued to the petitioner, by the competent authority, was referred to the respondent Scrutiny Committee for verification. The aforesaid certificate dated 13.07.2001, came to be validated by respondent Scrutiny Committee by its judgment / order dated 19.10.2006. The aforesaid judgment / order was subject matter of challenge in a writ petition before this Court, namely writ petition No.8063/2006. The aforesaid writ petition, which was filed at the instance of present respondent No.5, came to be allowed by judgment of this Court dated 10th September 2008 and this Court had remitted the matter {3} back to respondent Scrutiny Committee for a decision afresh. It appears that since it was a non speaking order, this Court had set aside the validity certificate granted to the petitioner and remitted the mater back to respondent Scrutiny Committee for a decision afresh. Consequent thereto, the present order, which is impugned in this petition, came to be passed. 4. We may briefly refer to the reasons or the findings which were arrived at by the committee upon appreciation of the documents submitted by the petitioner and the complainant i.e. respondent No.5. The said findings read as under - “1) Suratsing Hasratsing Girase was from Rajput community and it is p roved from his documentary evidence. 2) Applicant’s mother viz.Rajibai was originally hails from Nimgul village of Shindkheda Taluka, Dist-Dhule and she belongs to Bhil community is admitted by all. 3) The applicant’s mother was living with Shri.Suratsing Hasratsing Girase in Dondaicha but they were not married. The applicant was living with them from childhood as their family member. 4) The applicant’s name as Gulabsing Suratsing Sonawane is appeared in all his documents. His caste is recorded in his school record as Bhil B.C. His birth palce is recorded as Nimgul. Applicant’s father’s name is appeared as Suratsing in almost all his documentary evidences. The applicant is claiming that, Harsing Hirsing Kuvar / Bhil who was his real father but this name is not found recorded in any of the documents produced by him. The applicant has stated that, he has adopted Sonawane surname from his mother’s {4} paternal side. 5) The applicant is married with the daughter of Shri. Takhtsingh Bahadursing Jadhav (Rajput), who is by caste Rajput. His wife’s mother is from Bhil community. 6) The complainants and some persons from Dondaicha and Takarkheda village have stated in their jabab that, the applicant is son of Suratsing Hasratsing Girase. 7) The applicant and some persons from Dondaicha and Nimgul village have stated in their jabab and written information that, applicant’s real father if Harsing Hirsing Kuwar/Bhil 8) There is not a single documentary evidence having probative value of evidence indicates that, the applicant belongs to Rajput community. The oral statements of some persons mentioned that the applicant is son of Shri.Suratsing Hasratsing Girase, but nobody has proved it by way of any documentary evidences. However, applicant’s father’s name is appeared as Suratsing in all his documents produced before the committee. 9) The applicant is claiming that, documents enlisted in para-IV (q, t, u) are the documents of his father, brother and himself. It is hard to believe that, these documents are pertaining to his real father, brother and himself. These were not produced by the applicant. These are unearthed by the Vigilance Officer. 10) The applicant is brought up from his childhood in the family of Suratsing Hasratsing Girase who was by caste Rajput.” 5. Thereafter, the Committee has recorded a finding that it was not established beyond doubt as to who the father of the {5} petitioner was i.e. whether Harsingh @ Suratsing Hirsing Kuwar/ Bhil or Suratsing Hasratsing Girase. The committee also records that the vigilance officer could not arrive at a conclusion as to who the real father of the petitioner was. It also appears and it is stated by respondent Scrutiny Committee in the impugned order that a communication came to be addressed to the petitioner on 13.05.2009 informing him that in the light of the conflicting evidence and in absence of any clinching and cogent evidence in respect of who the father of the petitioner was, the petitioner was asked to give his consent as well as consent of his other close relatives for undergoing DNA examination. The said communication further informs the petitioner that an officer from the committee would guide the petitioner in respect of the samples to be sent for DNA examination. The Committee, in fact has observed thus - “However, considering the totality of the case and the circumstantial evidence, it is proved from the documentary evidence that Suratsing is the father of the applicant, however to get the weightage to this conclusion, the committee has decided to undertake DNA test of the applicant and the so- called relatives under the powers conferred to the Committee vide section 9 of the Maharashtra Scheduled Caste, 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 (Maharashtra Act No.XXIII of 2001). The Committee thereafter observes that the petitioner was asked to undergo DNA test and was requested to give his consent but since the petitioner had not given his consent, the Committee {6} has proceeded to decide the tribe claim of the petitioner. The Committee also observes in the concluding paragraph that the petitioner was hesitating to undergo DNA test, observing adversely that it may due to his awareness about who his real father was i.e. Suratsing Hasratsing Girase. 6. Mr.P.M.Shah, learned Senior Counsel for the petitioner has invited our attention to the document dated 22.05.2009. This is a document by which the petitioner has conveyed his consent for undergoing DNA test. Annexures of this communication indicate that the petitioner had obtained consents of his other relatives including step sisters. The aforesaid communication dated 22.05.2009 bears an endorsement i.e. signature and rubber stamp of the committee in token of having received this communication with the rubber stamp indicating dated 22.05.2009. On the strength of this aforesaid communication, it is urged by Mr.Shah, learned senior counsel for the petitioner that since the committee itself had arrived at a conclusion that it was not possible to determine as to who the real father of the petitioner was and consequently the caste to which the petitioner belongs, the committee was in error in holding that the petitioner had not submitted his consent and adversely has held that the petitioner has failed to prove his tribe claim. 7. We may, at this juncture, briefly observe that according to the facts which are proved, the mother of the {7} petitioner, who was a Bhil, had married to Harsing @ Suratsing Kuvar/Bhil and on his demise was residing with one Suratsing Hasratsing Girase, who was a Rajput. The committee found that the certificates produced by the petitioner showed name of the father of the petitioner as Suratsing while it was difficult for the committee to decide as to who the father of the petitioner was i.e. whether it was Harsing @ Suratsing Bhil or Suratsing Girase. Consequently, the committee found it difficult to arrive at a conclusion as to the tribe to which the petitioner would belong as Harsing @ Suratsing was Bhil while Suratsing Girase was Rajput. If Suratsing Girase was the father of the petitioner, the caste of the petitioner would be Rajput and would not be Bhil and consequently if Harsing @ Suratsing Kuvar was the father of the petitioner, his caste would be Bhil and not Rajput. In the light of the said paucity of evidence, the committee had directed holding of the DNA examination. 8. Since the petitioner had given his consent for DNA test, according to us, the order of the Committee, ex facie shows non application of mind and an error apparent on the face of record. The consent letter in no uncertain terms discloses consent of the petitioners for the said examination. It is tried to be urged before us, on behalf of the respondents particularly learned counsel representing the committee and learned counsel representing respondent No.5, that the aforesaid endorsement, including the signature and the rubber stamp are adroit forgery committed by {8} the petitioner in order to gain advantage in the present petition. This is a disputed question of fact, which in really speaking, cannot be gone and decided by us. Prima facie, documents on record indicate that letter dated 22.05.2009 was received by the committee on 22.05.2009. Mr.Patil, learned counsel for the Committee has urged before us that disciplinary action has been initiated against the clerk who, accordingly to the learned counsel for the petitioner had put the aforesaid endorsement on a subsequent date. In any event, it is a matter for the committee to decide. Prima facie, we are satisfied that though the petitioner had conveyed his consent yet the committee has erroneously observed that the petitioner had not given his consent. In that light of the matter, therefore, according to us, the petitioner is entitled to succeed in the present petition. 9. We accordingly allow this petition, quash and set aside the impugned order and remit the matter back to the Scrutiny Committee for deciding it afresh in accordance with law. Respondent Scrutiny Committee may take into consideration the consent given by the petitioner vide his letter dated 22nd May 2009 and proceed to decide the tribe claim of the petitioner in accordance with law. The respondents would be at liberty to urge before the scrutiny committee that the endorsement on the aforesaid letter dated 22.05.2009 has been either fraudulently obtained or is a forged endorsement. The committee may, thereafter, take appropriate action in accordance with law in {9} respect of the aforesaid submission, if advanced before the committee. Since we have quashed and set aside the order of the Scrutiny Committee and since extreme urgency is expressed on behalf of the respondents, as the petitioner holds an elective office consequent to his tribe claim, we direct the respondent Scrutiny Committee to decide the tribe claim of the petitioner in accordance with law, within a period of 3 months from today. We expect that the petitioner shall cooperate with the Scrutiny Committee for the expeditious disposal of his tribe claim and accordingly we direct the petitioner to appear before the Scrutiny Committee on 14th September 2009. Since we have quashed and set aside the order of the Scrutiny Committee invalidating the tribe claim of the petitioner and have remitted the matter back to the respondent Scrutiny Committee for a decision afresh, we direct that no adverse action be taken against the petitioner on that score alone. 10. Rule is thus made absolute on the above terms with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp3391-09