1 W.P.No.3667.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3667 OF 2007 WITH CIVIL APPLICATION NO.5651 OF 2007 Ukesh S/o Naresh Choudhari, Age 36 years,Occup. Nil R/o H.No.1134,”Pitashri” Gavlipura,Chawani,Aurangabad. ...PETITIONER. VERSUS 1] Divisional Controller, Maharashtra State Road Transport, Corporation,Aurangabad, Through its Divisional Controller, 2] Scheduled Tribe Caste Certificate Scrutiny Committee, Through its Member Secretary, Kasmira Sadan, Station Road, Aurangabad. ...RESPONDENTS. ... Shri.S.M.Kulkarni, Advocate for Petitioner. Shri.R.P.Phatke, A.G.P. for Respondent No.1. Smt. Ranjana D.Reddy,Advocate for respondent No.2 ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. RESERVED ON : 24TH JUNE, 2010. PRONOUNCED ON: 29TH JUNE, 2010. JUDGMENT : ( PER K.K.TATED, J.) 1. Rule. Rule made returnable forthwith. 2 W.P.No.3667.07 With the consent respective counsel of the parties, this petition is taken up for final hearing at the admission stage. 2. By this petition, under Article 226 and 227 of the Constitution of India, the petitioner challenges the order dated 17th March, 2007 passed by the Scheduled Tribe Certificate Scrutiny Committee Aurangabad, Division Aurangabad (Hereinafter referred to as “said Committee”) and issued on 23rd March 2007. The learned counsel appearing on behalf of the petitioner submits that the said Committee failed to consider the documents submitted by the petitioner along with his letter dated 13th March 2007 and also failed to call upon the handwriting expert's opinion for rejecting the documents, in view of Apex Court judgment in the matter of Sayana Vs. The State of Maharashtra reported in 2009 AIR SCW 6173. FEW FACTS OF THE MATTER ARE AS UNDER :- 3. The case of the petitioner is that he belongs 3 W.P.No.3667.07 to “Mannerwarlu” scheduled Tribe. The Maharashtra State Road Transport Corporation desired to fill in backlog of back ward class. In the meeting dated 16th October 1994, the petitioner was selected as Sub Engineer, should get medically examined and submit report to that effect before 2nd November,2004. 4. On 22nd April, 1995, Maharashtra State Road Transport Corporation informed the petitioner that he should join for training on or before 5th May, 1995. Accordingly, the petitioner joined the service. Initially, his claim was referred to the said Committee, Nashik for verification and on establishment of Scheduled Tribe Certificate Scrutiny Committee, Aurangabad, the claim was transferred to Aurangabad. The petitioner has produced the documentary evidence in support of his claim. The documents include School leaving Certificate of himself and his brothers, service extract of his cousin sister, caste certificate issued to his family members. The said Committee, 4 W.P.No.3667.07 has undertaken an enquiry through Vigilance Cell. A copy of the report of Vigilance Cell was served on the petitioner. Thereafter, said Committee fixed interview on 30th September, 2005. On that day the petitioner applied for adjournment as there was death in his family. In spite of his application for adjournment the said Committee proceeded ex-parte and his claim was held invalidated. Because of the said order of said Committee, the Maharashtra State Road Transport Corporation on 25th February, 2006 terminated the service of the petitioner. 5. Being aggrieved by the order passed by the said Committee as well as Maharashtra State Road Transport Corporation, the petitioner approaches this Court under Article 226 and 227 of the Constitution of India, by way of Writ Petition No. 2594 of 2006, on the ground that on the day of his interview, before the said Committee on 30th September, 2005 the petitioner's cousin sister had expired, and therefore, the petitioner approached 5 W.P.No.3667.07 the said Committee and moved an application intimating about the mishap in the family and sought further time. In spite of the petitioner's application, the said Committee proceeded ex-parte and rejected the petitioner's application. This Court by oral judgment dated 14th July, 2006, in Writ Petition No. 2594 of 2006, set aside the ex- parte order passed by the said Committee and directed to consider the evidence on record and decide the petitioner's application. 6. Thereafter, the petitioner on 12 December, 2006 filed additional reply before the said Committee pointing out that Telgu is language and not Caste as recorded in his School Leaving Certificate dated 5th July, 2006. In the said reply, the petitioner denied that there was either overwriting in the school record or change in handwriting. On 12th December, 2006 the said Committee fixed the matter for personal hearing 17th March, 2007. After hearing the petitioner and considering his record, the said Committee 6 W.P.No.3667.07 rejected the petitioner's appeal for issuing Caste Certificate. 7. Mr. S.M.Kulkarni,the learned counsel appearing on behalf of the petitioner submitted that the said Committee erred in coming to the conclusion that in School admission registration extract of Mukesh Naresh Choudhari, dated 22nd June 1978 in Caste Column “Mannerwarlu” was written, but alphabates “lu” were added in different ink. This is one of the ground on which the said Committee rejected the petitioner's appeal for issuing Caste Certificate. The learned counsel appearing on behalf of the petitioner further submitted that the said Committee failed to consider that in petitioner's school Admission Registration Extract dated 5th July, 1976 in caste column his language was written as ”Telgu”. He further submits that, said Committee failed to consider properly School record pertaining to his brother and blood relatives, wherein the caste is recorded as “Mannerwarlu” on the ground that those records are 7 W.P.No.3667.07 of very recent from the year 1974-75 i. e. after passing the Presidential order 1950 notifying scheduled Tribe. 8. The learned counsel appearing on behalf of the petitioner submits that, before coming to the conclusion that, in school admission extract, if something is written in different ink, then it is duty of the said Committee to forward the said document to the handwriting expert, in view of the Apex Court judgment in the matter of Sayana Vs. State of Maharashtra reported in 2009 AIR SCW 6173. He particularly relied on para No.9, which is reproduced herein below. “9 The report dated December 1, 2003, forwarded by the Police Inspector, Vigilance cell, no where mentions that the certificate dated May 17, 1972, produced by the appellant to establish that he belongs to “Mannerwarlu” Scheduled Tribe is forged one. The contents of the certificate dated May 17, 1972 show that the aid certificate was issued on the basis of the certificate issued by the President of Kundalwadi Municipality. The report dated December 1, 2003 of Police 8 W.P.No.3667.07 Inspector does not indicate whether the Police inspector had recorded the statement of the President of the Municipality to find out whether the certificate issued by the President was genuine or not. What is relevant to notice is that in the report dated December,1,2003 the Police Inspector has merely stated as a matter of fact that the word ”lu” was subsequently added while recording the caste of the appellant as Mannerwarlu in the school register. The police Inspector has not stated that the word ”lu” was interpolated by the appellant. There is every possibility that the word “lu” was not mentioned at the time of recording of the caste of the appellant and on being pointed out the correct spelling of caste, the word “lu” was added. Addition of word “lu” subsequently would not lead to an irresistible conclusion that the said word was added by the appellant or at his behest. It is difficult for this Court to understand as to on which basis the Scrutiny Committee came to the conclusion that the word “lu” was interpolated in the register of the school more particularly when it was no so opined by the Police Inspector who had conducted the enquiry. Whether interpolation by addition has taken place can be stated by a handwriting expert or by comparison of admitted letters of a person with this disputed one. It is an admitted position that the Scrutiny Committee had never attempted to get an expert's opinion nor itself had 9 W.P.No.3667.07 compared the disputed letters with admitted one of the appellant. Under the circumstances, the finding recorded by the Scrutiny Committee that the word “lu” was interpolated will have to be regarded as not based on any credible evidence. The Police Inspector had never taken care to find out whether the word “lu” subsequently added by the school authorities or by the appellant. It was necessary for the said Officer to undertake such an exercise in view of the specific defence of the appellant that the school record was lying with the school authorities and he had no opportunity whatsoever to tamper with the same”. 9. The learned counsel appearing on behalf of the petitioner further submits that the petitioner by his letter dated 13th March 2007, placed on record the School Leaving certificate issued by the Head Master C.P.S. (Girls) Osmanpura, MCA Aurangabad dated 8th March,2007 of his uncle Shri Manohar Bijjaya Choudhari. In the said School Leaving Certificate, it is stated that the petitioner's uncle was admitted in the school, run by the Municipal Council, Aurangabad in 1959 and his 10 W.P.No.3667.07 caste status was shown as “Mannerwarlu”. He further submits that the entry in the death extract of his grand father Shri Bijjaya Hirayya Choudhari, in the year 1955, mentioned his tribe status as “Mannerwarlu”. Though, these documents were placed on record, the said Committee has not considered them while passing the impugned order, rejecting the petitioner's appeal. In view of the above mentioned facts and circumstances, the learned counsel appearing on behalf of the petitioner submits that it is a fit case to set aside the impugned order dated 17th March, 2007 passed by the said Committee and matter be remanded back for reconsideration, taking into consideration the documents produced by the petitioner along with his letter dated 13th March, 2007, as per Exhibit “G” in the present Writ Petition. 10. The learned A.G.P. appearing on behalf of the respondent-State vehemently opposed the petitioner's submission for setting aside the 11 W.P.No.3667.07 impugned order passed by the said Committee and for remanding the matter for afresh hearing, on the ground that the said Committee has considered all documents produced by the petitioner on record. After considering several documents produced by the petitioner on record and the Vigilance Cell Report, the said Committee rejected the petitioner's appeal for issuing Caste Certificate. The said Committee recorded in its order that the petitioner’s school admission register extract dated 22nd June 1978, though shows the caste as “Mannerwarlu” the words “lu” were written in different ink. This is nothing but interpolation in the document to take benefit of Scheduled Tribe. He further submits that the said Committee also considered the school admission registration extract of the petitioner dated 5th July, 1976. Not only that the said Committee rejected the petitioner's appeal on the ground that the school record pertaining to petitioner's relatives on record are of very recent period i.e. after 1974. Therefore, same can not be considered 12 W.P.No.3667.07 at the time of deciding the petitioner's appeal. 11. The learned A.G.P. appearing on behalf of the respondent-State submits that there is no question of referring the petitioner’s school registration extract dated 22nd June 1978, because in the said Certificate two alphabates “lu” are written in different ink and this can be seen by necked eyes. If these facts are there, then there is no question of referring the same to the handwriting expert, and therefore, authority cited by the learned counsel appearing on behalf of the petitioner (“Sayana Vs State of Maharashtra) cited supra is not applicable to the present case. In view of these facts and circumstances, there is no substance in the present Writ Petition and same is liable to be dismissed with costs. 12. We have heard both the counsel at length. The learned A.G.P. appearing on behalf of the respondent-State produced the original file of the said Committee for our perusal. It is to be 13 W.P.No.3667.07 noted that in view of provisions of Maharashtra Scheduled Caste Scheduled Tribe DNT (VJ) NT, OBC Classes and SBC (Regulation of Issuance and Verification of) Casts Certificate Act-20007 and the provisions of Maharashtra Scheduled Tribes Rules 2003, the burden of proving that the person belongs to such caste, tribe or class, lies on the claimant-applicant. This burden should be discharged by the applicant by producing the documents as set out in the rule, which includes- (i) Primary School leaving certificate. (ii) An extract of school admission register. (iii)An extract of birth register, and also documents in respect of his father : (i) An extract of birth register. (ii) Primary school leaving certificate. (iii)Extract of school admission register. (iv) Scheduled Tribe Certificate. (v) If a father is in service, the extract of the pages of the service record (book) which 14 W.P.No.3667.07 contain religion and tribe entries. (vi) If a father is illiterate, the primary school leaving certificate of the real elderly blood relatives of the paternal side of the applicant and extract of school admission register and other documents : (i) Revenue record like, birth register, extract of 7/12, Sale Deed etc. (ii) Any other relevant documents in support of his Scheduled Tribe claim. (iii) Affidavits of the near relatives whose Validity Certificates are submitted in support of the Scheduled Tribe claim of the applicant. 15. In the present case, admittedly, it is not necessary to go into details of each and every document, because, admittedly the petitioner alongwith his letter dated 13th March, 2007 produced two documents on record of 1951 and 1955 in which the petitioner’s real uncle and grand father’s caste is shown as “Mannerwarlu” and these 15 W.P.No.3667.07 two documents were not at all considered by the said Committee. There is no discussion in the entire order of the said Committee about these two documents. When we called upon the learned counsel appearing on behalf of the respondent to show whether the said Committee has considered these two documents at the time of rejecting the petitioner’s appeal, he failed to point out any discussion and/or consideration in the impugned order passed by the said Committee. 16. Therefore, in our opinion, the order of the said Committee suffers from error of law, apparent on the face of the record in as much as said Committee has not considered the evidence available before it particularly the documents produced by the petitioner alongwith his letter dated 13th March, 2007, therefore, in the interest of justice for the reasons stated above, we remand the matter to the respondent No.2 said Committee to decide the same afresh according to law, as early as possible within six months from the date 16 W.P.No.3667.07 of receipt of the copy of this order. 17. In view of the above facts and circumstance, we pass the following order:- :: O R D E R :: (a) The impugned order passed by the Scheduled Tribe Certificate Scrutiny Committee dated 17th March,2007 is set aside. (b) The matter is remanded back to the respondent-Scheduled Tribe Certificate Scrutiny Committee, Aurangabad for fresh hearing. (c) Liberty granted to the petitioner to produce on record the additional evidence, if any. (d) The respondent - Scheduled Tribe Certificate Scrutiny Committee, Aurangabad is directed to dispose of the petitioner’s appeal within six months from the receipt of copy of this order. (e) No order as to costs. (f) Rule made absolute in the above terms. 17 W.P.No.3667.07 (g) In view of the disposal of Writ Petition, nothing survives for consideration in the Civil Application. Accordingly, the same is disposed of. Sd/- Sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] MTK