1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5707 OF 2008 Baliram Babu Patil .. Petitioner Kamewadi, Tq.Chandgad Dist. Kolhapur Versus 1. State of Maharashtra Through its Secretary, Tribal Development Dept. Mantralaya, Mumbai-32 2. Scheduled Tribe Certificate Scrutiny Committee, Pune Division, Pune Through its Deputy Director and Member Secretary, 28, Queen's Garden, Pune 411 001 3. Sub Divisional Officer Gadhinglag Sub Division, Dist. Kolhapur .. Respondents Mr. R. K. Mendadkar, for the petitioners Mrs. M. P. Thakur, AGP for respondent -State CORAM: J. N. PATEL & MRS. MRIDULA BHATKAR,JJ. Closed for order on 9th June, 2009 Order Pronounced on 17th June, 2009 ORDER (Per Mridula Bhatkar, J.) 1. In this petition, the petitioner has challenged the 2 order dated 31st May, 2008 passed by the Respondent No.2- committee as well as the order dated 20th March, 2007 passed by Respondent No.3, refusing to issue caste certificate, in favour of children of the petitioner, as belonging to Mahadeo Koli- Scheduled Tribe (S.T.). 2. Factual Matrix : The Petitioner was granted caste Certificate of Mahadeo Koli-ST on 30.5.1979 by the then authority and upon reference to the Respondent No.2 Committee, the said caste certificate was invalidated by the Scrutiny Committee by order dated 20.6.1994. The petitioner challenged the said order dated 20.6.1994 in Writ Petition No. 3004 of 1994 which came to be allowed and the petitioner was declared as belongs to Mahadeo Koli -S.T. vide judgement and order dated 14.4.2006. In view of the order of this Court, validity certificate in the prescribed form came to be issued to the petitioner on 14.7.2005. Subsequently, the petitioner applied for caste certificates of Mahadeo Koli- S.T. for his children viz. Ashish and Ashwini alongwith supporting documents. However, the respondent No.3 authority refused to issue caste certificates 3 to the children of the petitioner by its order dated 30.3.2007. The petition (WP 4905/07) challenging the order dated 30.3.2007 was withdrawn with liberty to adopt appropriate remedy. Thereafter, the petitioner filed an appeal under Rule 11 of the Caste Certificate Rules, 2003 before the Respondent No.2 Committee. However, the committee, vide order dated 31st May, 2008, upheld the order of Respondent no.3 refusing to grant caste certificate to the children of the petitioner and rejected the appeal. Hence the petitioner has filed this petition challenging the said orders under Article 226 of the Constitution of India. 3. Respondents have filed affidavit in reply denying the submissions and contentions of the petitioners. It is contended that the claim of the petitioner was rightly rejected by the committee by upholding the order of Resondent no.3. It is submitted that at the relevant time there was no vigilane cell to assist the committee and therefore, the then committee has no other alternative but to decide the claim on the basis of documents available before it. However, now, as per the guideliens issued in Madhuri Patil's case((1994) 6 SCC 241) 4 assistance of Vigilance cell is available to the committee to conduct school and home enquiry to determine the caste claims. As such, new material with the help of the vigilance cell is made available before the committee to scrutinise the claim of the petitioner. It is submitted that the committee has rightly observed that the documents produced by the petitioner were of recent period and that the documents of post constitutional period carry less probative value than those of pe- constitutional period. Moreover, in the home enquiry, it is revealed that the old entries as to caste of the petitioner's paternal relatives has been recorded as Hindu Koli in their school record. 4. Present petition involves issue that the father was given valid caste certificate as Mahadeo Koli and the Bombay High Court in Writ Petition No. 3004 of 1994 has declared that the petitioner- i.e. Father belongs to Mahadeo Koli- ST by judgement dated 18th April, 1996. However, the caste scrutiny committee, by its order dated 5.6.2008 has rejected the claim of the petitioner s children Ashish and Ashwani that they belong to ’ 5 Mahadeo Koli. The contentions of the learned counsel appearing for the petitioner that if on the same set of evidence the Authority has given a decision about the caste of the father, then on the basis of same documents and same facts, the committee cannot give different findings do not hold substance. Such issue does not come under res judicata as argued . The case of every individual who claims a particular caste, has to be considered separately. On this point, we rely on the following decisions of the Apex Court. (1) Kumari Madhuri Patil & Anr. Vs. Additional Commissioner Tribal Development & Ors. (1994) 6 SCC 241, wherein it has been ruled by the Hon ble Supreme ’ Court that each and every case has to be decided on its own merit, if fresh evidence is produced and mere validation of caste certificate of one relative ipso facto would not be a conclusive evidence. (2) Raju Ramsingh Vasave Vs. Mahesh Deorao Bhivapurkar and others, reported in 2009 (1) Mh. L.J. 1. in which the Hon ble Supreme Court ruled that ’ if it is found that in granting a certificate in favour of “ a member of a family vital evidence had been ignored, it would be open to the committee to arrive at a different finding.” 6 5. Although the the decision of the competent authority holding the caste of the father as Mahadeo Koli is definitely a positive factor in favour of the petitioner, the competent autority and the scrutiny committee, both are not precluded to decide the case of the children of the petitioner in respect of their caste claim independently. It is to be noted that the production of evidence either documentary, oral or circumstantial on the fact in issue cannot be stopped during the enquiry of any matter. In the present matter, the Sub-Divisional Officer, while passing the order dated 20.3.2007 on the application of the petitioner has considered all the documents which were produced and has held that the petitioner has not tendered concrete evidence to prove the caste as Mahadeo Koli. The SDO has stated that he has examined the original register of the school at Moujewadi Tq. Gadhinglaj of the petitioner and also such entries in the register of the relatives of the petitioner, however, entries reveal caste as Koli and not Mahadeo Koli. The caste of the petitioner is mentioned as Hindu Mahadeo Koli. However, the date of birth of the petitioner is shown as 1.6.1964 i.e. after the first presidential order 1950. 7 Further the entry of two cousins (Chandru and Vishnu) in the same register of same school is shown as Hindu Koli. Original birth register of the relatives of the petitioner was also examined by the SDO and observed that the caste is mentioned as Koli . ‘ ’ 6. It is to be noted that as per the order passed by the full Bench of this Court in Shilpa Vishnu Thakur Vs. State of Maharashtra (W.P. No. 5028) dated 7th May, 2009 it was held that Before concluding, it is necessary for this Court to “ observe that both under the Act as well as under the Rules, the Competent Authority has to be satisfied abut the genuinenes of the claim. Rule 4 which lays down the procedure to be followed by the Competent Authority for the grant or rejection of an application for a certificate empowers the competent authority to hold an enquiry and to gather material for determining the correctness of the claim. The function of the Competent Autority is not ministerial but is a vital step in the verification of tribe claims.” 7. In the pesent case, it appears that the SDO has taken pains to go through the documents and properly scrutinised and appreciated the documents before passing order. 8. Leaned counsel appearing for the petitioner 8 submitted that the SDO and the Scrutiny Committee did not consider the school leaving Certificate of his uncle Shankar Bekappa Patil who was born on 4.12.1934 and his school leaving certificate discloses Caste as Koli Mahadeo . “ ” Whether this certificate was produced either before the SDO or before the Scrutiny committee ? was the query made by us and the answer given was in negative. It is the duty of the applicant to produce all the documents on which his caste claim is founded. Thus, documents are to be made available to the committee or the competent authority at the right time to enable them to unearth the truth with the help of Vigilance cell for which it is constituted. It appears that the petitioner has deliberately held back this certificate and produced it in the appeal. The scrutiny committee has rightly concluded that the petitioner could not prove the customs and triable traits and he also failed on the affinity test. It is further pointed out that the caste of the petitioner in the school record is recorded as Maratha. It is the duty of the applicant to tender such inspiring concrete evidence before the competent authority to portray a consistent picture of a particular caste and there are 9 no different versions about the caste. Such high degree of consistent evidence is required tobe tendered especially when there is growing tendency to take disadvantage of the reservation policy. Under such circumstances we do not find any fault in the concurrent finding given by the competent authority and the Scrutiny Committee. The orders passed by the Scrutiny Committee and the scrutiny Committee cannot be said to be illegal or incorrect and need not be interfered with. In the result, the petition stands dismissed with no order as to costs. ( MRIDULA BHATKAR, J. ) (J. N. PATEL J.) jpc/