(1) JUD-WP-6336.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6336 OF 2008 Mahesh Pralhadrao Lad Aged 22 years, Occu.: Student R/o. Jamb (Renge) Tq. & Dist. Parbhani PETITIONER VERSUS 1. The State of Maharashtra (through the Secretary, Technical Education Department, Mantralaya, Mumbai) 2. The Scheduled Castes, Vimukt Jati Nomadic Tribes, Other Backward Classes and Special Backward Category Castes Certificates Verification Committee (through its Member Secretary and Divisional Social Welfare Officer, Aurangabad) 3. The Director of Education, Higher and Technical Education, Maharashtra State, Administrative Building, Pune 4. The Principal, M.E.T.'s Institute of Management, Near Lilawati Hospital, (Bandra W) Mumbai RESPONDENTS ..... Mr. A.S. Bayas, Advocate for the Petitioner. Mr. S.K. Kadam, A.G.P. for the Respondent-State. ..... (2) JUD-WP-6336.2008 CORAM : SMT. NISHITA MHATRE & M.T. JOSHI, JJ. DATED : 6TH JULY, 2011 ORAL JUDGMENT (PER-SMT. NISHITA MHATRE, J.):- 1. Rule. Rule made returnable forthwith, by consent. 2. The Petition had been filed by a person who unfortunately has had to knock the doors of this Court thrice over because of the mistakes committed by the Scrutiny Committee-respondent no.2 herein. 3. The petitioner claims that he belongs to the "Rajput Bhamta" Vimukta Jati. He approached this Court initially in the year 2008, challenging the order passed by the Committee invalidating his claim. That order was set aside on 14.7.2008 by this Court and the Committee was directed to decide the matter afresh. Accordingly, on remand the Committee repeated the mistakes and, therefore, the petitioner had to approach this Court by filing another Writ Petition. That Writ Petition was allowed and the matter was remanded once again to the Scrutiny Committee. On remand, the caste claim of the (3) JUD-WP-6336.2008 petitioner was invalidated yet again and the petitioner has approached this Court once again, in fact, for the third time. While remanding the matter for deciding afresh, this Court by a judgment reported in 2009(2) Mh.L.J. 90 has framed the following issues:- "4. In this context the following questions require consideration:- (i) Whether the impugned order invalidating the caste claim of the petitioner only on the ground that the petitioner did not produce pre-1961 document can be sustained in law or is it illegal, arbitrary and/or suffers from total non-application of mind and violation of the law laid down by the Supreme Court and this Court and statutory provisions? (ii) Whether the Government Resolution dated 22nd August, 2007 is binding on the Committee and if binding to what extent would the Committee be bound? . The Court while answering the issues observed as follows:- 9. It is, therefore, clear that there is no requirement either under the Act or the Rules or the Judgments of the Supreme Court or of this Court that documentary evidence other than pre-constitution, pre- Presidential Notification or State Notification notifying caste or nomadic tribe to be excluded from being considered (4) JUD-WP-6336.2008 when a Committee considers an application for verification of Tribe/Caste status for the purpose of issuing a validity certificate. The procedure under the Rules is to enable the Committee if it is satisfied based on the documentary evidence of the claim to proceed to issue the validity certificate without conducting the Vigilance enquiry or asking the applicant to lead other evidence. It is only in that event that the committee is not satisfied from the documentary evidence produced on record about the genuineness of the claim the Committee then can call for the report of the Vigilance Cell. If the Committee still is not satisfied based on the Vigilance Report of the status of the applicant, then being given a show cause notice, it will be open to such applicant to lead other evidence. The burden lies on the applicant to satisfy by evidence oral or documentary on the applicant being issued a show cause notice about his claim. In answer to the show cause notice the Applicant can submit his reply and also apply to lead further evidence as contemplated in terms of section 9 read with Rule 12 of the Rules. This contention is, therefore, answered accordingly. We, therefore, hold that all documents whether post or pre-Constitution or Presidential or State Notifications can be considered as also oral evidence, treated in the form of affidavit evidence. It will always be open to the Committee to examine the deponent of such affidavits or get verified their statements." . The Court therefore, remanded the matter to the Committee in order to hear it afresh. (5) JUD-WP-6336.2008 4. On remand, the Committee has retained its earlier order verbatim and invalidated the petitioner's claim. The Committee has thus completely ignored the judgement of this Court remanding the matter. The directions contained therein have not been observed. No reasons have been mentioned by the Committee for ignoring the judgment. Instead, the Committee has mentioned the same reasons as earlier for invalidating the claim of the petitioner. When this Court has held that it is not a sacrosanct rule that pre-1961 documents are required for proving or establishing the caste of a candidate who claims to be the "Rajput Bhamta", the Committee has decided to ignore these observations. Apart from this, there is material on record to indicate that petitioner's brother has been issued a certificate of validity, indicating that he belongs to the "Rajput Bhamta" Vimukta Jati on the basis of the same documents which were produced by the petitioner. The Committee has discarded this certificate only on the ground that each person's tribe claim must be decided independently and the Committee would not be bound by its earlier decision (6) JUD-WP-6336.2008 to validate the claim of a paternal relative of the candidate. 5. We are aware that the well settled position is that the candidate whose tribe claim or caste claim is sought to be validated must establish his claim independently and not merely on the basis that others in his family have been issued such validity certificate. However, it cannot be gainsaid that such a certificate issued to the paternal relatives of a candidate and more so, to the brother of the candidate, as in this case, would have persuasive value while deciding the petitioner's claim. The Scrutiny Committee has ignored this fact completely. 6. In view of the earlier decision of this Court in the petitioner's case the Committee was expected to consider the claim of the petitioner without insisting on a pre-1961 document. The Committee was required to consider the evidence on record in its totality before rejecting the petitioner's claim. In any event, the Committee has committed a patent error by reproducing its earlier order, verbatim although it had been set aside by (7) JUD-WP-6336.2008 this Court. This is a gross illegality and impropriety on the part of the Committee. 7. The order passed by the Scrutiny Committee is set aside. The matter is remanded to the Scrutiny Committee to decide it afresh. We hope that after three attempts, the Scrutiny Committee will decide the matter in accordance with law considering the judgements of this Court as well as the Supreme Court and the documents on record. The Committee must also take into account the result of the affinity test while considering the tribe claim of the petitioner. We expect that the Committee will apply its mind independently and not be influenced by its earlier orders, which have been set aside by this Court. 8. Petition allowed. No order as to costs. The petitioner will appear before the Committee on 1st August, 2011. The Committee will decide the petitioner's claim within eight (8) weeks from that date. Rule made absolute in the above terms. Sd/- Sd/- [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] arp