{1} wp877610.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8776 OF 2010 Muktai d/o Gulab Deoraj, age: 26 years, Occ: Selectee, R/o Anant Nagar, Plot No.75, Chopda, Tq. Chopda, District Jalgaon. Petitioner Versus 1 Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, through its Member Secretary. 2 Kalyan Dombiwali Municipal Corporation, Kalyan, District Thane, through its Deputy Commissioner (General Administration). Respondents Mr.M.S.Deshmukh, advocate for petitioner Mr.R.P.Phatke, advocate with Mr.Shrishailya S. Deshmukh, advocate for respondent no.1. Mr.S.V.Kulkarni, advocate for Respondent No.2. CORAM : B.R.GAVAI AND R.M.BORDE, JJ. DATE : 06 th December, 2010 ORAL ORDER (Per B.R.Gavai, J.): 1 The petitioner challenges the order passed by the {2} wp877610.odt Scrutiny Committee dated 30th August, 2010, by which, the claim of the petitioner of belonging to `Tokare Koli’, a Scheduled Tribe, has been invalidated. 2 Heard Shri M.S.Deshmukh, learned Counsel appearing on behalf of the petitioner and Shri R.P.Phatke, learned Counsel appearing on behalf of the Respondent-Committee. 3 Shri Deshmukh, learned Counsel appearing on behalf of the petitioner, submits that the claim of the petitioner’s father of belonging to `Tokare Koli’, a Scheduled Tribe has been validated by the Committee vide order dated 21.07.2007. Not only that, but the claim of petitioner’s real sister and real brother of petitioner’s father have also been validated by the Committee. It is, therefore, submitted that when the Respondent-Committee itself has validated claim of the petitioner’s father of belonging to `Tokare Koli’, a Scheduled Tribe, on the same ground, the claim of the petitioner is required to be validated. Relying on sub section (2) of Section 7 of 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, the learned Counsel submits that since the findings arrived at by the Respondent-Committee have been given finality by the said enactment, when the validity is given in favour of close relatives of {3} wp877610.odt the candidate, then it is not permissible for the Committee to ignore the same unless it is found that the order has been obtained by fraud or vitiated by the lack of jurisdiction. He, therefore, submits that it is not permissible for the Committee now to deny the claim of the petitioner on the basis of same contra entries in relation to the petitioner’s father and grand-father. Shri Deshmukh further submits that the earlier validity granted in favour of petitioner’s father has been granted after considering the Vigilance Cell report and the affinity test and, therefore, it is not permissible for the Committee to ignore the same. 4 The facts in the present case are somewhat similar with the facts which were for consideration before the Apex Court in the case of Kumari Madhuri Patil & another Vs. Additional Commissioner, Tribal Development & others, reported in (1994) 6 SCC 241. It will be relevant to refer to paragraph 10 of the judgment of the Apex Court in the case cited supra: 10 “The entries in the school register preceding the Constitution do not furnish great probative value to the declaration of the status of a caste. Hierarchical caste stratification of Hindu social order has its reflection in all entries in the public records. What would, therefore, depict the caste status of the people inclusive of the school or college records, as the then census rules insisted upon. Undoubtedly, Hindu social order is based on hierarchy and caste was one of the predominant factors {4} wp877610.odt during pre-Constitution period. Unfortunately instead of dissipating its incursion it is being needlessly accentuated, perpetrated and stratification is given legitimacy for selfish ends instead of being discouraged and put an end to by all measures, including administrative and legislative. Be it as it may, people are identified by their castes for one or the other is a reality. Therefore, it is no wonder that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and the certificates are issued on its basis. The father of the appellants admittedly described himself in 1943 and thereafter as a Hindu Koli. In other words his status was declared a Koli by caste and Hindu by religion. Kolis are admittedly OBCs. His feigned ignorance of the ancestry is too hard to believe. The averment in the affidavit that the entries were mistakenly made as Hindu Koli is an obvious afterthought. The anthropological moorings and ethnological kinship affirmity (sic) 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 {5} wp877610.odt 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. The father of the appellant has failed to satisfy the crucial affinity test which is relevant and germane one. On the other hand the entries in his school and college registers as Hindu Koli positively belies the claim of his social status as Scheduled Tribe.” 5 It is, thus, clear from the judgment of the Apex Court that the entries in the school register preceding the Constitution furnish a great probative value to the declaration of status of the caste. From the record pertaining to the grant of validity in the case of petitioner’s father, it could be seen that the fact regarding entry pertaining to the school record of petitioner’s father depicting his caste as “Suryawanshi Koli B.C.” and that the fact regarding father of petitioner’s father i.e. petitioner’s grand father showing his caste as “Koli” in the Births & Deaths Register have been noticed by the Committee. However, it is noticed that the said Committee, in view of the judgment and order passed by this Court in Writ Petition No.2741 of 1991 in the case of Chhagan Sitaram Deoraj and the subsequent validity granted in favour of brother of petitioner’s father on the basis of said judgment, validated caste claim of petitioner’s father. 6 The Apex Court, in the case of Raju Ramsingh Vasave Vs. Mahesh Deorao Bhivapurkar & others, reported in 2009 (1) {6} wp877610.odt Mh.L.J. 1, in paragraphs 20 and 21, has observed thus: 20 “One of the questions which has been raised before us is as to whether the offer of appointment made in favour of the respondent No.1 by the Maharashtra Pollution Control Board dated 16-3-1998 is final so as to attract the direction contained in paragraph 38 of Milind (supra). Where 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 the respondent No.1 was rendered on a wrong premise. The claim of the respondents may be that he belonged to the Halba tribe but, therefor, no factual foundation was placed before the High Court. The High Court relied solely 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. 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 {7} wp877610.odt 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 at some details. 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. 21 We reiterate that to fulfill 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.” 7 It can, thus, be seen that the Apex Court has clearly held that if it is found that in granting a certificate in favour of a member of a family, vital evidence has been ignored, it would be open to the Committee to arrive at a different finding. It has also been observed that to fulfill 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. 8 Undisputedly, caste of the petitioner’s father, in his school record, has been noted as “Suryawanshi Koli” on 06.06.1968. It is pertinent to note that the said entry is also post- Constitutional. It can, further, be noted that insofar as the entry in the service book of petitioner’s father is concerned, the same {8} wp877610.odt was also initially “Suryawanshi Koli” and subsequently it has been rectified as “Tokare Koli”. It is pertinent to note that the pre- Constitutional document i.e. entry regarding petitioner’s father’s father (grand father of the petitioner) in the Births & Deaths Register, has shown the caste as “Koli”. It is not in dispute that “Koli” and “Suryawanshi Koli”, both were recognised as the Other Backward Class in the State of Maharashtra. It appears that accordingly petitioner’s father has entered into his school record the caste as “Suryawanshi Koli – magas varga” i.e. backward class. Not only that, but the entry pertaining to petitioner’s father’s real brother namely Vijay and Gopal have shown their caste in the school record as `magasvargiya Koli’ (backward class Koli). In the light of these entries, it is clear that the entire documentary evidence was clear to show that petitioner’s father belonged to either “Koli” or “Suryawanshi Koli”, which were recognised as Other Backward Class and did not belong to “Tokare Koli”, a Scheduled Tribe. 9 We are not inclined to accept the contention raised by Shri M.S.Deshmukh, learned Counsel for the petitioner, that once the validity is granted to one member in the family, it should not be ignored unless it is found to be obtained by fraud or without jurisdiction. If the Committee issued the validity certificate by ignoring the vital documentary evidence, we find that the said decision would be termed as irrational, inasmuch as, the {9} wp877610.odt Committee has ignored to take into consideration the vital piece of evidence. In that view of the matter, we find that it will squarely be permissible within the scope of judicial review, permissible for this Court under Article 226 of the Constitution of India. We have no hesitation in holding that the Committee had erred in granting a validity certificate in favour of petitioner’s father ignoring the vital documentary evidence showing caste of petitioner’s father as “Suryawanshi Koli” and petitioner’s father’s father’s caste as “Koli”. Various Division Benches of this Court in the cases: (1) Hitendra Raghunath Mahale Vs. The State of Maharashtra & others (Writ Petition No.2151 of 2007 decided on 5th December, 2009); (2) Nikhil B. Deore Vs. State of Maharashtra & others, (Writ Petition No.7410 of 2008 decided on 5th November, 2009); (3) Jaywant Dilip Pawar Vs. State of Maharashtra & others, (Writ Petition No.2152 of 2007 decided on 5th December, 2009); (4) Deepika Subhash More Vs. State of Maharashtra & others (Writ Petition No.1953 of 2007 decided on 22nd March, 2007); (5) Milind Ramdas Sonavane Vs. State of Maharashtra & others (Writ Petition No.1112 of 2007 decided on 5th Aprill, 2007); (6) Zartar Zakir Hussain Abdul Gani Vs. State of Maharashtra & others (Writ Petition No.4835 of 2009 decided on 18th February, 2010); {10} wp877610.odt (7) Kum.Seema S. Bhadekar Vs. State of Maharashtra & others, (Writ Petition No.2175 of 2008 decided on 16th June, 2008); (8) Bhavana Atmaram Suryawanshi Vs. State of Maharashtra & another (Writ Petition No.5608 of 2008 decided on 23rd September, 2008); (9) Prasad s/o Pralhad Ingle Vs. State of Maharashtra & another (Writ Petition No.5705 of 2009 decided on 13th November, 2009); (10)Baliram Babu Patil Vs. State of Maharashtra & others (Writ Petition No.5707 of 2008 decided on 17th June, 2009); (11)Pradeep Ramchandra Koli Vs. State of Maharashtra & others (Writ Petition No.1256 of 2003 decided on 23rd July, 2010); and (12)Mohd. Hussain s/o Shaikh Abdul Rahman Vs. State of Maharashtra & others (Writ Petition No.2721 of 2007 decided on 22nd February, 2008); have consistently taken a view that validity should not be granted to a candidate only on the ground that at an earlier point of time, validity certificate has been granted to a family member of such a candidate and that the Committee is within its jurisdiction to consider the claim of a particular candidate on its own merits. 10 Since the Committee, by an impugned order, has found {11} wp877610.odt that while granting validity in the case of petitioner’s father, the Committee had ignored vital documentary evidence showing the caste of petitioner’s father and grand father as “Suryawanshi Koli” and “Koli” and that in view of the law laid down by the Apex Court in the case of Kum. Madhuri Patil, wherein it has been held that the said pre-Constitutional records have great probative value, we do not find that the Committee has committed any error in rejecting claim of the petitioner. 11 Shri Deshmukh, learned Counsel appearing on behalf of the petitioner, submits that a Division Bench of this Court, in the case of Balwant s/o Vithal Jalgaonkar Vs. State of Maharashtra & others, reported in 2004 (3) Mah. L.R. 687, in similar facts, has held that once a member of family was granted validity certificate, the other members of the family are also entitled for the same. He, therefore, submits that in view of the said judgment, the order passed by the Scrutiny Committee is liable to be set aside. Insofar as reliance placed by the learned Counsel for the petitioner on the judgment in the case of Balwant (supra) is concerned, it is to be noted that the said judgment has been delivered by this Court prior to the judgment of the Apex Court in the case of Raju Ramsingh Vasave Vs. Mahesh Deorao Bhivapurkar (supra) and as such, same would not be of any assistance to the petitioner. {12} wp877610.odt 12 Petition is, therefore, found to be devoid of merit and as such is dismissed. 13 At this stage, Shri Deshmukh, learned Counsel for the petitioner, submits that the petitioner has already been selected in Kalyan-Dombivali Municipal Corporation against a seat reserved for Scheduled Tribe and by an earlier order, this Court has protected the petitioner by directing that petitioner’s selection should not be cancelled on account of non submission of validity certificate. He, therefore, submits that same protection be continued for a period of six weeks from today. Considering the fact that the protection was operating for a considerable length of time, same is extended for a period of six weeks from today. R.M.BORDE B.R.GAVAI JUDGE JUDGE adb/wp877610