1 wp5885.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5885 OF 2009 Shri. Sandip s/o Vasantrao Thakur, Age: 24 years, Occ: Student, R/o. Amalner Darwaja, Erandol, Tq. Erandol, Dist. Jalgaon. ...PETITIONER VERSUS 1. The State of Maharashtra, Department of Tribal Development, Mantralaya, Mumbai-32 Through its Secretary. 2. The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar Through its Member Secretary. 3. The Sub Divisional Officer, Jalgaon Division, Jalgaon. ...RESPONDENTS ... Mr. A.S. Golegaonkar, Advocate for the petitioner. Mr. P.P. More, A.G.P. for respondent Nos. 1 and 3. Mr. R.P. Phatke, Advocate for respondent No.2. ... CORAM: SMT. NISHITA MHATRE & S.S. SHINDE, JJ. DATE : 23RD MARCH, 2011 2 wp5885.09 ORAL JUDGMENT : (PER S.S. SHINDE, J.) Rule. Rule made returnable forthwith. By consent heard finally. This petition is filed challenging the decision of the Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar (For short,"Scrutiny Committee") dated 12-06-2009 rejecting the tribe claim of the petitioner herein. 2. It is the case of the petitioner that he belongs to 'Thakur Scheduled Tribe' community. On 24-06-1999 he obtained tribe certificate from the competent authority i.e. respondent No. 3 the Sub Divisional Officer, Jalgaon Division, Jalgaon. When the petitioner was studying in Junior College, his tribe certificate was referred to respondent No.2 Scrutiny Committee by the College authorities for scrutiny/verification. In June 3 wp5885.09 2004 the petitioner passed H.S.C. and now, he is hoping to get a job on the post, reserved for the Scheduled Tribe Category. The petitioner has applied for different posts of the Government Departments from the Scheduled Tribe Reserved Category. It is the case of the petitioner that on 23-11-2004 P.I. Anil Chaudhari of Vigilance Cell has made Home Enquiry in the matter by visiting the place of the petitioner and submitted report to the Scrutiny Committee on 24-11-2004. The petitioner was called for personal interview on 23-11-2008 by the Scrutiny Committee. Accordingly, the petitioner alongwith his father and other relatives appeared before the Scrutiny Committee and submitted their reply and also documents and information as sought by the Scrutiny Committee. It is the case of the petitioner that inspite of producing voluminous evidence, the Scrutiny Committee has erroneously rejected tribe claim of the petitioner. Hence, 4 wp5885.09 this writ petition. 3. The learned Counsel appearing for the petitioner submits that the vigilance cell has not made proper inquiry about traits, deities, rituals, mode of marriage etc. in home inquiry. The learned Counsel for the petitioner submits that, the vigilance cell report does not indicate any report or comments by the Research Officer, who is a member of the vigilance cell. He further submits that the vigilance officer should have made detailed inquiry about the customs, traits, characteristics etc., and then should have filed proper report. Therefore, according to the learned Counsel for the petitioner, the decision given by the Scrutiny Committee relying upon the vigilance cell report which is not prepared in accordance with the procedure streamlined by the judgment of the Hon'ble Supreme Court in the case of Madhuri Patil and also is not in accordance with the relevant rules, cannot be sustained. He further submits that the voluminous evidence was produced 5 wp5885.09 before the Scrutiny Committee, and therefore there was no reason to reject the tribe claim of the petitioner. Therefore, the learned Counsel for the petitioner would submit that the petition may be allowed. 4. On the other hand, the learned Counsel for the respondent - Scrutiny Committee invited our attention to the findings recorded by the Scrutiny Committee, and submitted that the Research Officer has given his comments and therefore, it cannot be said that he had not given his comments. Therefore, the learned Counsel would submit that this petition may be dismissed. 5. We have heard the learned Counsel appearing for the parties at length and also perused the petition, annexures thereto, decision of the Scrutiny Committee and the vigilance cell report. It is abundantly clear that there is no reference to the opinion of the Research Officer in said report. A careful perusal of the impugned 6 wp5885.09 order passed by the Scrutiny Committee indicates that the document at Serial No.9 i.e. copy of school leaving certificate in respect of applicant's grandfather Adhar Ukha Thakur issued by Head Master, Z.P. Marathi Mulanchi Shala, Paldhi Tal. Erandol District Jalgaon bearing Reg.No.66 Book No.7, wherein the caste is mentioned as Thakur and date of admission is 01-07-1922, has not been properly considered by the Scrutiny Committee. The vigilance cell in its inquiry report has recorded the caste of the applicant's grandfather as Thakur. The tribe claim of the applicant's cousin namely Sanjaykumar Arjunrao Saindane is validated by the Scrutiny Committee. On careful perusal of the impugned order, we have noticed that the Scrutiny Committee has not properly considered the report of vigilance cell. The Scrutiny Committee has also not assigned any reasons why the vigilance cell report is not acceptable to the Scrutiny Committee. 7 wp5885.09 The Hon'ble Supreme Court in the case of Kumari Madhuri Patil and another vs. Additional Commissioner, Tribal Development and others, reported in (1994) 6 Supreme Court Cases 241, in Para-13, has streamlined the procedure for the issuance of social status certificate, their scrutiny and their approval. The constitution of vigilance cell, manner of conducting inquiry by the said cell and the procedure to be followed are described in Para-13(5)(6) of the said Judgment. Para-13 (5) (6) reads thus : "5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of 8 wp5885.09 migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead 9 wp5885.09 bodies etc. by the castes or tribes or tribal communities concerned etc. (Emphasis supplied). 6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and 10 wp5885.09 in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the 11 wp5885.09 objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof." 6. Therefore, a perusal of Para-13(5) as reproduced hereinabove, would clearly indicate that the vigilance officer should examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. Upon careful perusal of the vigilance 12 wp5885.09 cell report, it appears that except the father of the petitioner, no other person is interrogated by the vigilance officer. In order to find out the social status of the petitioner, it was incumbent upon the vigilance officer to examine the parent, guardian or the candidate in relation to the petitioner's caste or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. However, on a careful perusal of the vigilance cell report, it is apparent that there is no detailed inquiry about anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities 13 wp5885.09 concerned etc. 7. The State Government has enacted 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 (For short, Act of 2000"). In Section-6 of the Act of 2000, procedure is laid down for verification of Caste Certificate by Scrutiny Committee. Rule 10 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003 (For short, "Rules of 2003) provides for constitution of vigilance cell. Rule 10 of the Rules of 2003 reads thus : 10. Constitution of Vigilance Cell.- The State Government shall constitute a vigilance cell to assist each Scheduled Tribe Certificate Scrutiny Committee 14 wp5885.09 for conducting enquiry which shall consist of,- (i) A Senior Deputy Superintendent of Police; (ii) Police Inspector (number of Inspectors depending upon the number of cases); (iii) Police Constables to assist the Police Inspector. (iv) Research Officer. The police personnel shall investigate into the social status claims by conducting school and home inquiries ands other enquiry as per the reference made by the Scrutiny Committee under sub-rule (2) of rule 12. 8. Therefore, from perusal of Rule-10 of the Rules of 2003, the Research Officer is included in the vigilance cell. The very purpose of the 15 wp5885.09 Research Officer in the vigilance cell is to invite his comments about the social status of the candidate who claims that he belongs to a particular tribe. From careful perusal of the vigilance cell report, it appears that the said report does not refer to any comments of the Research Officer. The very purpose to have inquiry by the vigilance cell is to find out the social status of the candidate. It is expected that the vigilance officer should examine the parent, guardian, or the candidate in relation to their caste etc., or such other persons who have knowledge of the social status of the candidate and then submit a report. However, in the present case, the vigilance cell report is silent about the comments of the Research Officer and also it appears that the mother of the petitioner or guardian or the candidate or such other persons who have knowledge of the social status of the candidate are not interrogated by the vigilance officer by visiting their places. 16 wp5885.09 Therefore, in our opinion, the Scrutiny Committee has not properly considered the vigilance cell report and also failed to assign separate reasons for not accepting the vigilance cell report which is in favour of the petitioner. As discussed hereinabove, the Scrutiny Committee has also not properly considered and assigned independent reasons for not accepting the contentions of the petitioner that the tribe claim of the applicant's cousin namely Sanjaykumar Arjunrao Saindane is validated by the Scrutiny Committee. 9. Therefore, in our opinion, the decision of the Scrutiny Committee deserves to be quashed and set aside. Accordingly, the same is quashed and set aside. The petition is allowed and disposed of. The caste claim of the petitioner is remanded to the Scrutiny Committee for fresh inquiry. The Vigilance Inquiry will be conducted afresh in 17 wp5885.09 accordance with law. The Scrutiny Committee will consider the report of the vigilance cell and decide the tribe claim afresh, preferably within three months from today. 10. We make it clear that we have not expressed our opinion on merits of the matter. It is left open to the Scrutiny Committee to consider the documents, evidence brought on record and after following procedure, to pass appropriate decision/order. 11. Rule made absolute on the above terms. [S.S. SHINDE, J.] [SMT. NISHITA MHATRE, J.] sut/Mar11/wp5885.09