1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 1317 OF 2007 DEEPIKA YOGESHWAR NANDANWAR ) residing at AD Bungalow ) Dr. S. S. Rao Marg, KEM Hospital Parel, Mumbai 400 012 ) .. PETITIONER VERSUS 1. STATE OF MAHARASHTRA ) Through its Secretary ) Tribunal Development Dept. ) Mantralaya, MUMBAI-32 ) 2. SCHEDULED TRIBE CERTIFICATE ) SCRUTINY COMMITTEE, Konkan ) Division, Thane through its ) Deputy Director (R) and ) Member Secretary, having its) office at Vartak Nagar Ward ) Office, Opp. Kores Company ) Vedant Complex, Vartak Nagar) Thane (West) Dist. Thane ) 3. Competent Authority and ) Director Medical Education &) 2 Research Maharashtra State ) having its office at ) St.George’s Hospital Compound Dental Colege, Building, CST) MUMBAI 400 001 ) 4. Dean, ) Seth Medical College, ) Parel, Mumbai 400 012 ) 5. Maharashtra University of ) Health Sciences, Nashik ) Through its Controller of ) Examinations, Nashik ) .. RESPONDENTS Mr. R. K. Mendadkar for petitioner Mr. P. P. Kakade, AGP CORAM:SMT.RANJANA DESAI & SMT. R. S. DALVI,JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 20TH FEBRUARY,2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:- 27th MARCH, 2008 JUDGMENT:-(Smt. Ranjana Desai, J.) . The petitioner claims that she belongs to Halbi Scheduled Tribe which is recognized as Scheduled 3 Tribe under the Presidential Notification issued under Article 324 (1) of the Constitution of India. In this petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge judgment and order dated 24/1/02 passed by respondent 2 i.e. Scheduled Tribe Certificate Scrutiny Committee, Konkan Division, Thane ("the Scrutiny Committee" for short). 2. The facts of the case may have to be shortly stated. According to the petitioner, the petitioner was granted caste certificate on 10/11/98 by the Competent Authority certifying that she belongs to Halbi Scheduled Tribe. While the petitioner was prosecuting her studies in the 12th Standard, she moved the Scrutiny Committee in the month of November, 2005 for validation of her caste certificate. The Scrutiny Committee however, did not take any steps in the matter. The petitioner passed her XII standard Science Examination in the month of June, 2006. Since the Scrutiny Committee had not decided her case she addressed a letter to it on 11th June, 2006 and pointed out that admission process was likely to commence on 3rd June, 2006. She requested that validity of her case certificate may be decided. In the meantime 4 she appeared for MH-CET Examination. Despite constant follow-up the Scrutiny Committee did not decide her case. The petitioner, therefore, filed writ petition in this court. The said writ petition was disposed of by this court on 15/6/06 giving a general direction. It was inter alia directed that if the students have already applied for caste certificate and their applications are pending before the relevant committees, then the institutions must grant provisional admissions to such students. The admissions will be subject to the decision of the Scrutiny Committee and under no circumstances will any student be entitled to claim equity to continue the studies, if the caste/tribe certificate is rejected or not validated. The Scrutiny Committees entrusted with the responsibility of deciding the caste validity of those applicants who have applied for admissions to professional courses were directed to consider their cases on priority and dispose them of not later than six months from the date of the application. 3. On the basis of the said judgment, the 3rd respondent granted admission to the petitioner to the 4th respondent college in the first year 5 M.B.B.S. Course under the reserved category of Scheduled Tribe in the month of July, 2006. 4. According to the petitioner on or about 24/8/06 upon her instructions her advocate addressed a letter to the Scrutiny Committee in which he pointed out that the writ petition filed by the petitioner was disposed of by the High Court after giving several directions and that she was granted admission in the 4th respondent college subject to production of caste validity certificate within twelve weeks from the date of admission. The Scrutiny Committee was requested to expedite the hearing of the case. 5. In the meantime one Shri Rajput filed Special Leave Petition in the Supreme Court challenging the judgment and order dated 15/6/06 passed by this court in the petitioner’s writ petition. The petitioner, through her advocate appeared in the said petition. On 12/2/07 the Supreme Court disposed of the said petition by observing that the respondents therein are continuing on the basis of an interim order passed by the High Court. The Supreme Court directed the respondents to produce valid caste certificate within a period of three 6 weeks before the authorities concerned. The Supreme Court observed that in case they do not produce such certificate, they shall be denied admission and the authorities shall pass appropriate orders. 6. An application for clarification was made by the petitioner because on account of the Supreme Court’s order her admission stood cancelled vide orders dated 16/3/07 and 22/3/07. The Supreme Court did not issue any clarification but observed that if an application is filed by either of the parties , the High Court shall decide the said application at an early date and pass appropriate orders in accordance with law. That is how on a motion made for early hearing we have taken up this petition for final hearing. 7. According to the petitioner in the meantime since nothing was done by the Scrutiny Committee by her advocate’s letter dated 7/10/06, she again called upon the Scrutiny Committee to decide her case. The Scrutiny Committee issued letter dated 22/11/06 along with enquiry report dated 14/2/06 submitted by the police inspector of the vigilance cell and directed the petitioner to appear on 7 5/12/06 for hearing along with the explanation on the enquiry report. 8. The petitioner filed a reply dated 4/12/06. By the impugned order dated 24/1/07 the Scrutiny Committee invalidated the caste certificate of the petitioner. Being aggrieved by the said judgment and order, the petitioner has filed this petition. 9. We have heard Mr. Mendadkar, learned counsel appearing for the petitioner. Mr. Mendadkar submitted that the Scrutiny Committee erred in invalidating the caste certificate of the petitioner. He pointed out that the vigilance cell headed by Shri Mahesh Joshi, Senior Police Inspector had caused a detailed enquiry to be made into all aspects of the matter including anthropological, ethnological moorings of the petitioner. The said report was placed before the Research Officer and the Research Officer had recorded a remark that the traditions of the petitioner match the traditions of Halba Scheduled Tribe. Mr. Mendadkar pointed out that instead of accepting the report of vigilance cell dated 14/2/06 the Scrutiny Committee unnecessarily directed a re-enquiry. Shri Bandagar, Police 8 Inspector of vigilance cell then conducted a re-enquiry and submitted a report in which he stated that 29 persons having Surname Nandanwar had applied for caste certificate and their certificates have been invalidated by the Amravati Scrutiny Committee. On the basis of this observation the Scrutiny Committee invalidated the petitioner’s claim. Mr. Mendadkar contended that the Scrutiny Committee ignored the documents produced by the petitioner which pertained to pre-presidential order period. He pointed out that the petitioner had produced school leaving certificate of her grandfather. The said certificate is dated 17/3/1922. It states the caste of the grandfather of the petitioner as Halbi. The petitioner had also submitted sale deed dated 27/4/1923 which describes the great grandfather of the petitioner as "person belonging to Halbi Tribe". Learned counsel submitted that the earlier vigilance cell report is completely in favour of the petitioner. The Scrutiny Committee should have, therefore, accepted it. The Scrutiny Committee wrongly took into consideration the fact that 29 persons bearing Surname Nandanwar were found not to belong to Halbi Tribe by the Amravati Scrutiny Committee. He submitted that surname is 9 not relevant. In this connection learned counsel relied on the judgment of the Supreme Court in State of Maharashtra & Ors. v. Ravi Prakash Babulalsing Parmar & Anr., (2007) 1 SCC 80. Learned Counsel also relied on judgment of the Supreme Court in Kumari Madhuri Patil & Anr. v. Addl. Commissioner, Tribal Development & Ors., (1994) 6 SCC 241, where the Supreme Court has laid stress on the importance of Affinity test and the report of the vigilance cell. Learned counsel drew our attention to 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. He drew our attention to Section 11 thereof which states what documents a person desirous of availing benefits of concession provided to the Scheduled Tribes should produce. Learned counsel submitted that the petitioner had accordingly produced all relevant documents and those documents should have been taken into consideration by the Scrutiny Committee. Learned counsel, therefore, prayed that the order be set aside and this court may declare that the petitioner belongs to Scheduled Tribe Halbi. He urged that this court may also set aside 10 the orders cancelling admission of the petitioner passed by respondents 3 and 4. 10. As against this learned AGP submitted that no interference is necessary with the impugned order. He drew our attention to the affidavit of Snehal A. Govekar, Research Officer of the Scrutiny Committee. Learned counsel submitted that the first report submitted by the vigilance cell was not found satisfactory by the Scrutiny Committee and, therefore, re-enquiry was ordered. The re-enquiry disclosed that 29 persons having surname Nandanwar had applied to the Scrutiny Committee Amravati for validating their caste claim. The Amravati Scrutiny Committee invalidated their claim. The Enquiry Officer who conducted the re-enquiry has observed that people belonging to the same area and whose certificates have been invalidated by the Scrutiny Committee Amravati were not co-operating with the Government Officials and therefore, it was difficult to collect information from local residents. He submitted that the occupation of the two relatives of the petitioner have been shown as "Koshti". Weaving is the occupation of Koshties of the Amravati area. The 11 petitioner therefore, cannot be said to belong to Halbi Scheduled Tribe. He submitted that in the circumstances, the petition deserves to be dismissed. 11. Before going to the merits of the case, it is necessary to focus our attention on the judgment of the Supreme Court in Madhuri Patil’s case (supra), because that judgment lays down the guiding principles to be followed in the matter of caste certificates. In that case the Supreme Court has discussed the nature of the duties and responsibilities of the Revenue Officers of gazetted cadre who issue social status certificate after due verification to persons belonging to tribes or tribal communities specified by the President by issuing notifications so that on the basis thereof they can avail of the benefit of the State’s reservation policy and get admissions to educational institutions or employment to an office or post under the State to the earmarked quota. 12. The Supreme Court has observed that the Scheduled Tribes are inhabitants of intractable terrain regions of the country kept away from the mainstream of national life and with their 12 traditional moorings and customary beliefs and practices, they are largely governed by their own customary code of conduct regulated from time to time with their own rich cultural heritage, mode of worship and cultural ethos. The Supreme Court further observed that anthropological moorings and ethnological kinship affinity gets genetically ingrained in the blood and no one would shake off from caste, in particular, when one is conscious of the need of preserving its relevance to seek status of Scheduled Tribe or Scheduled Caste recognised by the Constitution for their upliftment in the society. 13. The Supreme Court has further observed that Hindu social order is based on hierarchy and caste was one of the predominant factors during pre-Constitution period. The entries in the school register preceeding the Constitution do furnish great probative value to the declaration of the status of a caste. The Supreme Court further observed that hierarchical caste stratification of Hindu social order has its reflection in all entries in the public records. The Supreme Court went on to say that the correct projectives furnished in proforma and the material would lend 13 credence and give 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 tribe. The authority or the officer would then reach a satisfactory conclusion on the claimed social status. 14. The Supreme Court thereafter streamlined the procedure for the issuance of social status certificates, their scrutiny and their approval. In the present context it is necessary to quote step 5 noted by the Supreme Court. It reads as under: "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 migration to the town or city, the place from which he originally hailed from. The vigilance 14 officer should personally verify and collect all the facts of the social status claim 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 bodies etc. by the castes or tribes or tribal communities concerned etc." 15. The Supreme Court has then observed that in case the report of the vigilance cell is in favour of the candidate and found to be genuine and true, no further action need to be taken except where the 15 report or the particulars given are procured or found to be false or fraudulently obtained. In such a case the Director concerned has to issue a show cause notice supplying a copy of the report of the vigilance officer to the candidate and indicating that representation if any should be made within two weeks from the date of receipt of the notice. After giving proper opportunity to the candidate, the Committee has to make such inquiry as it deems expedient and pass an appropriate order with brief reasons in support thereof. 16. In the light of the above principles, this case must be examined. The first vigilance report indicates that during home inquiry the vigilance officer studied the traits of the Halbi Tribe. After considering traditional deities, festivals, traditional dresses, traditional dances, traditional occupations, religious traditions, traditional rites before birth and after birth and funeral rites etc. the enquiry officer submitted a report to the Research Officer. The report also included the observations of the vigilance officer that in the birth certificate issued by the Municipal Council Achalpur of the uncle of the petitioner one Dattatray Sadashiv Nandanwar, date 16 of birth is shown as 3/11/49. It is registered on 5/11/49 and it shows the caste as "Halbi". It is further stated that in the school leaving certificate of Sadashiv Nagoji Nandanwar the grandfather of the petitioner, his caste is recorded as Halbi. The date of admission is 17/3/22. It is also stated that copy of sale deed between great grandfather of the petitioner one Nagorao and his relative Laxman H. Pakhale executed on 7/4/1923 mentions the caste of great grandfather of the petitioner as Halbi. On this report the Research Officer has made a note on 6/10/2006 that the customs of the petitioner match those of Halba Scheduled Tribes. 17. The Scrutiny Committee was not satisfied with this report of the vigilance cell and the remarks of the Research Officer. The Scrutiny Committee, therefore, again handed over the matter to another police inspector of the vigilance cell for re-enquiry. Second inquiry is conducted by P I Annasaheb Bandgar. PI Bandgar submitted his report on 13/11/06. This report states that copies of agreement and original agreement made on stamp paper of 8 annas and 4 annas by Hiraman Dattuji Halbi and Nagoji Dattuji Halbi regarding possession 17 of house are with the father of the petitioner i.e. Yogeshwar Nandanwar and they are seen by PI Joshi. It is further stated that Deputy Registrar Birth and Death, Municipal Council, Achalpur made inquiry about birth and death of Khushal Ganpat, Ramchandra Nagoji and Sriram Tukaram. During inquiry statement of Arjun Ganpatrao Nandanwar a close relative of the petitioner was recorded. Arjun Nandanwar stated that the petitioner’s father who is a doctor and who stays at Bombay is his uncle. He further stated that Khushal Ganpat, Ramchandkra Nagoji and Sriram Tukaram are their distant relatives and weaving used to be their occupation. He has further stated that people bearing surname Nandanwar residing at Achalpur belong to Koshti Community. 18. The report further states that the Scrutiny Committee at Amrawati has invalidated the claims of 30 candidates, whose surnames are Nandanwar, that their caste is Halbi. It must be stated here that though the report gives the number of such candidate as 30, there are in fact 29 such candidates. There is a typing error in noting the serial number. It is further stated in the report that in the inquiry with the Municipal Council 18 Primary School at Samaraspura it was found that the caste of Shankar Ganpat Nandanwar, nephew of the petitioner is mentioned as Halbi and his occupation is mentioned as weaver. The report further states that therefore, it is established that the caste of the petitioner’s ancestors is Halbi. PI Bandgar has enclosed the extract of admission register of Shankar Nandanwar to the report. He has also annexed copies of Amrawati Committee’s decision invalidating Halbi Tribe claim of 29 persons bearing Nandanwar surname. 19. PI Bandgar has further stated that in village Achalpur 40% to 50% population is of Halbi tribe. PI Bandgar has further observed that persons whose claims have been invalidated by Amravati Committee did not cooperate with the government officers in the inquiry. PI Bandgar has further stated that secret inquiry made in the village indicates that persons whose claims have been invalidated by the Amravati Committee must be distantly related to the petitioner. This report is signed by PI Bandgar. Deputy Superintendent of Police Vigilance Cell has confirmed that PI Bandgar has visited Achalpur village, that he had made enquiry with the school and that he had visited the Amravati Scrutiny 19 Committee office. Deputy Superintendent of Police has countersigned the report. 20. We have already quoted the observations of the Supreme Court in Madhuri Patil’s case that in case vigilance report is found to be genuine no further action need to be taken, but where the report is found to be false or fraudulently obtained notice must be given to the candidate. The candidate must be given opportunity of hearing and then the committee must pass an appropriate order with brief reasons in support thereof (paragraphs 6 & 7 of Madhuri Patil’s judgment). Ordinarily therefore, after the first report, with which the committee was not satisfied notice ought to have been given to the petitioner. But the Scrutiny Committee ordered a second inquiry. That report was submitted on 13/11/06. Thereafter a show cause notice dated 22/11/06 was issued to the petitioner and she was asked to remain present on 5th December, 2006. The petitioner participated in the inquiry. Though grievance has been made that it was not necessary to call for report, no grievance has been made by Mr. Mendadkar in the court, nor any grievance is raised in the petition that the necessary procedure was not followed before 20 ordering the second inquiry. The applicant has infact responded to the show cause notice. It is, therefore, not necessary to examine that aspect. 21. Petitioner was fully heard. Her explanation was perused by the Scrutiny Committee. The petitioner relied on school leaving certificate of her grandfather dated 17/3/22 and copy of a sale deed dated 27/4/23, where her great grandfather’s caste is shown as Halbi. She heavily relied on the first vigilance cell report. She submitted that extract of Ramchandra Nagoji and Khushal Ganpat cannot be used since they are not her blood relatives. She raised objection to the finding recorded in the second report of the Vigilance Cell that traditional occupation of her forefathers is weaving. According to her 29 persons bearing the name Nandanwar, who come from Achalpur and whose claims have been invalidated by the Amravati Scrutiny Committee are not her blood relatives. She contended that the second vigilance report is vague. She relied on the judgment of the Nagpur Bench of this court in Pragati Bhujale v. Scheduled Tribe Caste Certificate Scrutiny Committee, Amravati (Writ Petition No. 571 of 2004 decided on 13/12/04). 21 22. After perusing the documents and after considering the contentions of the petitioner, the Scrutiny Committee came to a conclusion that though the petitioner had submitted two documents pertaining to pre-presidential order period, the vigilance cell has brought extract pertaining to Khushal Ganpat and Ramchandra Nagoji of the year 1938, wherein their caste is mentioned as "Koshti". These documents are also documents of pre-presidential order period. The Scrutiny Committee observed that the petitioner has cleverly refused to accept Khushal Ganpat and Ramchandra Nagoji as her relatives. The Scrutiny Committee has held that though the petitioner’s grandfather’s caste has been mentioned as Halbi, it must be noted that her father’s 2 relatives caste has been found to be "Koshti" and those documents also pertain to the period prior to 1950. The Scrutiny Committee has also taken into consideration 29 cases of persons bearing the name Nandanwar from Achalpur village whose claims have been invalidated by the Amravati Scrutiny Committee. The Scrutiny Committee has, therefore, observed that Nandanwars do not belong to Halbi Scheduled Tribe. The Scrutiny Committee has observed that the vigilance 22 cell in its second report has referred to a document pertaining to the petitioner’s relative Shankar Ganpat. In that document Shankar Ganpat’s occupation is shown as weaving. In her explanation the petitioner has accepted that Shankar is her relative but in the genealogy submitted by her she has suppressed certain names of relatives whose record does not support her. Occupation of weaving is a prohibited occupation so far as Halbi community is concerned. The Scrutiny Committee has further observed that the fact that Shankar Ganpat’s occupation is shown as ’weaving’ establishes that he is a Koshti. Admittedly weaving is the occupation of Koshtis’ in the Amravati area. The Scrutiny Committee has further observed that report submitted by PI Bandgar dated 13/11/06 is based on information gathered by him after contacting the relatives of the petitioner from her original place of residence. The petitioner has also suppressed the names of Khushal Ganpat and Ramchandra Nagoji from the genealogical tree because Khushal Ganpat and Ramchandra Nagoji’s caste is shown as Koshti. So far as Pragati Bhujale’s case (supra) is concerned the Scrutiny Committee has expressed that that judgment is applicable only to that particular case. Pragati 23 Bhujale is not a relative of the petitioner, therefore, that case cannot be treated as a supporting material for the petitioner’s claim. In view of the above the Scrutiny Committee, by the impugned order negatived the claim of the petitioner. 23. We have already noted the observations of the Supreme Court in Madhuri Patil’s case relating