1 wp3463-09.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3463/2009 1] Shivraj S/o Madhukarrao Telang Age 31 years, Occ-Service R/o Yeshwant Azad Chowk, Chakur, Dist.Latur. .. PETITIONER VERSUS 1] The State of Maharashtra Through Secretary, Rural Development Department, Mantralaya, Mumbai-400 032. 2] The Committee for Scrutiny & Verification of Tribe Claims Aurangabad Division, Aurangabad. 3] Zilla Parishad Latur, Through its Chief Executive Officer. .. RESPONDENTS .... 2 wp3463-09.odt Shri S.B.Talekar,Advocate for petitioner. Shri S.K.Kadam,AGP for State ..... CORAM : NARESH H.PATIL AND T.V.NALAWADE,JJ. ORDER RESERVED ON : 22/8/11 ORDER PRONOUNCED ON : 6/9/11 ORDER [PER NALAWADE,J.]: 1] This Writ Petition is filed under Article 226 of the Constitution of India to challenge the order made by Caste Scrutiny Committee, Aurangabad Division, on 28/3/2009. The original record was called and both the sides are heard. 2] The petitioner is selected for the post of Gram Sevak [on contract basis] in Zilla Parishad, Latur. As the selection was made on the basis of his claim that he belongs to Scheduled Tribe – Gond, he was asked to give the original caste certificate. The caste certificate was referred to Caste Scrutiny Committee. The Committee has given decision that the certificate issued by Executive Magistrate in favour of the petitioner is invalid. Consequential, order is also made. 3 wp3463-09.odt 3] The record shows that the petitioner had contended before the committee that he had obtained the certificate on the basis of certificate issued to Sopan Ebitwar and Vijaykumar Choudhari and he had contended that these 2 persons are his relatives. The executive Magistrate Chakur Tahsil, Chakur has issued caste certificate dated 31/8/94 and it shows that it was issued on the basis of affidavit dated 30/8/94, the certificate of village talathi dated 3/8/94 and school leaving certificate dated 3/8/94. Thus as per the caste certificate, before the executive magistrate, the caste certificates in respect of Ebitwar and Choudhari were not produced. 4] Before the Committee, petitioner has produced copy of school leaving certificate issued by Jagat Jagruti Vidya Mandir, Chakur showing that he he was admitted in the school on 26/6/92. In this certificate, his caste is mentioned as ‘Telang- Gond’. Copy of one more school leaving certificate issued by Lokmanya Junior College where petitioner was admitted on 13/7/96 is produced and in this document also the caste is mentioned as ‘Telang-Gond’. On the other hand, vigilance cell committee has produced school leaving certificate issued by primary school of Zilla Parishad from Chakur. This certificate shows that the claimant was admitted in this school first time for the education and he was there upto 7th standard and he left the school on 25/6/92. In this certificate, his religion and caste is mentioned as ‘Hindu-Telang’. When a student leaves a school 4 wp3463-09.odt and gets admission in new school, on the basis of school leaving certificate issued by his previous school record is prepared in the new school. Thus the record prepared by the subsequent school of the petitioner and the junior college is not consistent with the record prepared by the first school of the applicant. No explanation is given by the applicant on this circumstance. 5] The petitioner has produced caste certificate issued to Sanjay Pandurang Telang by executive magistrate, Kandhar, Dist.Nanded. It is the case of petitioner that Sanjay is his cousin. The certificate shows that initially caste was mentioned as “Telang” but it was scored and then written as Gond. In any case, the certificate was not scrutinized and so not much importance can be given to this certificate even if it is presumed that the said Sanjay is real cousin of the petitioner. There is also no affidavit of Sanjay. 6] Copy of caste certificate which is validated in respect of Sopan Pundlikrao Ebitwar, resident of Latur Road, Tahsil, Chakur is produced alongwith affidavit of Sopan. The petitioner has contended that Sopan is a son of sister of father of the petitioner. A copy of caste certificate validated by the Committed in respect of one Kum.Baby Saroja Baburao Telang [dated 7/4/2008] is produced alongwith affidavit of Kum.Baby. It is the case of petitioner that Kum.Baby is daughter of sister of father of petitioner. The place of residence of Baby is shown as Omerga, Tahsil,Omerga and the caste is shows as Raj-Gond. 5 wp3463-09.odt 7] The vigilance committee report shows that police inspector Shri Bankar visited village Chakur and he collected inforation from the father of applicant and from others. There is a statement of father of the applicant and on that basis, family tree is prepared by the inspector. Father of the applicant has 3 brothers like Babruvan, Ramesh and Pandurang. He has one sister by name Shakuntala. All these blood related brothers and sister of father of petitioner are resident of Chakur. The father has not stated that he has more sisters and they are residents of aforesaid places and the sisters have issues like Sopan or Kum.Baby. The report shows that the petitioner has real brother and he is educated. There is no record in respect of this educated brother Dhanraj. 8] The aforesaid record and circumstance show that in the school of the petitioner his caste and religion was given as Hindu Telang. There is only a caste certificate in respect of his so-called cousin Sanjay but there are the circumstances like scoring of the caste on the certificate and that the certificate was obtained from Tahsil Kandhar, Dist.Nanded and not from the native place of the family of Sanjay. The other record is not found satisfactory as there is no sufficient material to connect the persons with the petitioner and the statement of the father of the petitioner is not supporting his case. The record shows that personal hearing was given to the petitioner and copy of the report prepared by vigilance committee was supplied to him. The answers given by petitioner in personal hearing were not satisfactory. There is a 6 wp3463-09.odt mention of the nature of enquiry made by the committee when the personal hearing was given to the petitioner. During personal hearing given by the Committee, the petitioner could not say anything about the practice and customs followed in the house of the parents of his mother and he does not know Gond language. On the basis of this material, committee has taken decision and it can be safely said that the view taken by the caste scrutiny committee is a possible view. In view of these circumstances and the record, interference in the decision taken by the committee by invoking extra ordinary jurisdiction is not possible. 9] For petitioner, copies of some orders made by this Court came to be produced and some reported cases were also cited. The caste scrutiny committee has observed that no record of pre-1950 period is available and as the record is of subsequent period, not much importance can be given to this record. Though the aforesaid discrepancies are not specifically mentioned in the decision, it is held by the committee that the petitioner has failed in affinity test. The committee has referred the landmark case of Madhuri Patil reported in 1994 [6] S.C.C. 241. In view of the facts of that case, the Apex Court has observed that due importance needs to be given to the record like entries made in the school record prior to 1950, the year in which the Presidential Order was issued with regard to the notification of the caste and tribes. On this point, the case reported as 2006 [4] All M.R. page 80 Smt.Varsha Ramsing Danavat V/s State of Maha and Ors. was cited. This Court has observed that the entries made in the birth 7 wp3463-09.odt register or school register are relevant and necessary importance needs to be given to them. Similar observations are made in the decision given by this Court in Writ Petition No.6336/11. Similar observations are made with regard to relevancy of record prepared subsequent to the year 1950 and the oral evidence. There cannot be dispute about the propositions made in these cases. Copy of the decision given in Writ Petition No.5251/10 is produced. The facts show that without giving any reason, the caste scrutiny committee had refused to act upon the report given by vigilance cell. In view of facts of that case, the matter was remanded back. 10] In view of the nature of inquiry, it can be said that the caste certificate of blood relations is not conclusive proof but it can be used as a guideline as it is a relevant circumstance. The authority is expected to apply its mind to the facts of each and every individual case. This is because, strict verification of the caste before giving benefit to a person is necessary so that the benefit is given to a real backward class person. The provisions of Maharashtra Caste Verification Certificate Act, 2000 and the Rules prepared under the Act are in consonance with the guidelines given by the Apex Court in Madhuri Patil’s case cited supra. Section 8 of the Act shows that the burden for establishing that the applicant belongs to a tribe is on the applicant. Section 6 shows that scrutiny committee is expected to verify each caste certificate which comes before it, before it issues validity certificate. The procedure shows that the principles of natural 8 wp3463-09.odt justice are required to be followed before taking decision by the committee. Some record which needs to be produced by the applicant in such cases is mentioned in the Rules. Thus, the decision needs to be taken on the basis of the material available in the case before the committee. This Court has already observed that on facts, no fault can be found with the decision of the committee. 11] It was submitted for the petitioner that the research officer did not visit the field [home and school of the petitioner] and so, the report of vigilance committee cannot be relied upon. On this point, copy of decision given in Writ Petition No.5885/09 by this Court was produced for the petitioner. As there was no comment of the research officer on the vigilance cell report, matter was remanded back by the Court. One case reported as 2009 [2] All M.R. 363 [Narayan Shankar Solanki V/s State of Maha. & Ors] was cited. In that case, the Court observed that the research officer needs to be associated with the vigilance cell and if there is no research officer, the report of vigilance cell committee cannot be used. On this point, for the respondent, copy of decision given in Writ Petition No.5686/02 Bombay High Court came to be produced. Copy of order passed in W.P.No.3524/01 by High Court Bench at Nagpur came to be produced. Case reported in 2007 [2] M.L.J. page 760 [Prajakta Sahebrao Birhare V/s State of Maha & Ors.] is also cited on this point. In all these cases, it is held that if vigilance cell consists of police personnel and research officer, it is not necessary that the said 9 wp3463-09.odt research officer shall accompany the police officer to conduct the field enquiry and it is not the requirement of Rule 10. 12] In aforesaid cases, Rule 10 is discussed. Rule 10 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of Certificate Rules, 2003 reads as under : “10] Constitution of Vigilance Cell - The State Government shall constitute a vigilance cell to assist each Scheduled Tribe Certificate Scrutiny Committee 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 10 wp3463-09.odt The police personnel shall investigate into the social status claims by conducting school and home inquiries and other enquiry as per the reference made by the Scrutiny Committee under sub-rule (2) of rule 12. “ The provisions of Rule 12 (3) to (6) are as under : “[12] Procedure to be followed by Scrutiny Committee. [3] The Vigilance Officer shall go to the local place of residence and original place from which the applicant hails and usually resides, or in case of migration, to the town or city or place from which he originally hailed from. [4] The Vigilance Officer shall personally verify and collect all the facts about the social status claimed by the applicant or his parents or the guardian, as the case may be. [5] The Vigilance Cell shall also 11 wp3463-09.odt examine the parents or guardian or the applicant for the purpose of verification of their Tribe, of the applicant. [6] After completion of the enquiry, the Vigilance Cell shall submit its report to the Scrutiny Committee who will in turn scrutinize the report submitted by the Vigilance Cell.” 13] Rule 10 shows that the police personnel is expected to investigate into the social status claims by conducting school and home inquiries. Thus, the vigilance officer mentioned in Rule 12 (3) to (6) is the police personnel mentioned in Rule 10. At para no.13 [clause 5 of the Procedure] of Madhuri Patil’s case cited supra the Apex Court has mentioned that the inspector would go to the local place of residence and original place from which the candidate hails and usually resides for enquiry. He is described as vigilance officer. Thus, only the police personnel mentioned in Rule 10 are expected to visit relevant place for collecting material and for making enquiry. In the present case, the vigilance cell report is signed by both the police personnel who visited such place and the research officer. The research officer has accepted the report prepared by police personnel and the report is signed by Deputy Superintendent of police [from the office of Deputy Director of the Committee] . This copy and the aforesaid 12 wp3463-09.odt proposition show that there is no force in the objection raised to the vigilance cell report. 14] The aforesaid provisions and the object behind Constitution of vigilance cell show that the burden was on the petitioner. As there is nothing to infer that the vigilance cell report is not correct, due importance to it needs to be given. It cannot be said that the finding of the committee is not based on evidence or there is perverse appreciation. So, the petition is dismissed. [T.V.NALAWADE,J.] [NARESH H. PATIL,J.] umg/wp2851-09