1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 6740 OF 2009 Ganesh s/o Kaduba Navale, Age 17 years, Occ. Student Through its Legal guardian Shri Kaduba s/o Amruta @ Sadashiv Navale Age 46 years, Occ. Service R/o,. N-12, Bharatmatanagar, Hudco, Aurangabad ...Petitioner Versus 1. The State of Maharashtra Through the Collector, Aurangabad 2. Scheduled Caste, Vimukta Jati, Other backward Class & Special Backward Class, Divisional Caste Certificate Scrutiny Committee No.1, Aurangabad Division, Aurangabad 3. Divisional Social Welfare Officer, Aurangabad Division, Aurangabad 4 Deputy Superintendent of Police vigilance Cell, Caste Certificate Scrutiny Department Aurangabad ...Respondents ..... Mrs. P.V. Langhe, advocate for the petitioner Mr. K.G. Patil, A.G.P. For the respondents ..... 2 CORAM: A.M. KHANWILKAR & S.S. SHINDE, JJ. DATE OF RESERVNG THE JUDGMENT : 15.01.2010 DATE OF PRONOUNCING THE JUDGMENT : 19.01.2010 JUDGMENT: (Per Shinde, J). 1 Heard learned Counsel for the parties. Rule. Rule made returnable forthwith and by consent of the parties, taken up for final hearing at admission stage itself. 2. This writ petition takes exception to the judgment and order dated 11.8.2009 passed by the respondent No.2 Committee. The brief facts of the case, as narrated in the petition, are as under;- 3 It is the case of the petitioner that he belongs to “Kunbi” caste which is recognized as O.B.C. In the State of Maharashtra. After due enquiry, the Deputy Collector, Aurangabad had issued caste certificate dated 1.6.2007 to the petitioner that he belongs to Kunbi caste. The petitioner was studying in Government Science College, Aurangabad and his caste certificate was referred to the Caste Scrutiny Committee for verification. The said committee by letter dated 21.5.2009 called 3 inquiry report from respondent No.4 Vigilance Cell. On 22.5.2009, the respondent No.4 vide letter dated 22.5.2009 called the petitioner to submit all necessary documents for verification in support of his caste claim as “Kunbi”. After receipt of the said letter, the petitioner approached to respondent No.4 and submitted all necessary documents alongwith the proof to support his caste claim. On 16.6.2009, respondent No.4 submitted enquiry report to respondent No.2 committee stating therein that the petitioner belongs to Kunbi caste. 4 It is the case of the petitioner that even though the report of respondent No.4 supports the case of the petitioner, the Divisional Social Welfare Officer, issued show cause notice dated 4.8.2009 to the petitioner calling upon him to submit the documents and to prove his claim by appearing in person before the committee on 11.8.2009. After appreciating evidence brought on record and after hearing the petitioner, the respondent No.2 committee passed the impugned order declaring the caste claim of the petitioner as invalid and caste certificate liable to be canceled and forfeited. Hence, this writ petition is filed challenging the order passed by the respondent No.2 Committee. 5 The learned Counsel appearing for the petitioner submitted that the order passed by the Committee is contrary to record and findings 4 therein are perverse. The committee has not applied its mind judiciously while deciding the caste claim of the petitioner. The learned counsel further submitted that the petitioner produced certified copy of relevant extract of Kotwar book before the Committee in which the caste of great grand mother of the petitioner is shown as “Kunbi”. The said document is a clear evidence to hold that the petitioner belongs to Kunbi caste. The counsel for the petitioner further invited our attention to Exh.F of the petition, in which the name of the petitioner's great grand mother is shown as “Kasai Mard Rajaram” and the caste is shown as “Kunbi”. The learned Counsel further submitted that petitioner had produced certificates of his great grand father and great grand mother showing their caste as “Kunbi”. However, respondent No.2 without appreciating the said documents, rejected the claim of the petitioner. According to the learned counsel, it is no where provided in the Evidence Act that grand mother or female members are not blood relatives and their evidence is not relevant in caste claim of her heirs. It is further submitted that the respondent Committee discarded the entry of Kotwar book which clearly shows the great grand father of the petitioner viz. “Rajaram” belongs to Kunbi caste. The petitioner being his heir naturally belongs to Kunbi caste. Learned counsel invited our attention to the extract of Kotwar book annexed to the petition, showing the name of great grand father Rajaram and his caste as “Kunbi”. It is further submitted that the name of grand father of the petitioner is Amruta @ Sadashiv. He had two 5 names i.e. Amruta @ Sadashiv. He declared his name “Sadashiv” and it is published in the gazette. Learned counsel invited our attention to the Copy of Government Gazette dated 20.4.2006 in which changed name of `Amruta’ is shown as `Sadashiv’. Therefore, learned counsel would submit that respondent Committee should not have over looked or doubted the genuineness of the certificate of the petitioner's great grand father. Learned counsel further submitted that the petitioner had produced before the committee a copy of extract from Kotwar book in which name of Rajaram (great grand father of the petitioner) is shown and his son’s name is shown as “Sadashiv” instead “Amruta”. Both the names are of the same persons i.e. grand father of the petitioner, but the respondent Committee held that entry in Kotwar book is not trustworthy and wrongly discarded the said document. Learned counsel invited our attention to Exh.I of the compilation of writ petition (copy of Kotwar book), in which the name “Rajaram” is shown and his caste is shown as “Kunbi” in the said document and his sons name is mentioned in Column 6 as Sadashiv. 6 The learned counsel for the petitioner further submitted that enquiry report submitted by respondent No.4 clearly indicates that after due enquiry, it has been revealed that the petitioner belongs to Kunbi caste. The report of respondent No.4 is totally ignored by respondent No.2 committee, and by discarding further evidence filed 6 by the petitioner in the nature of documents, the Respondent No.2 committee has reached to the wrong conclusion holding that the petitioner does not belong to Kunbi caste. It is further submitted that respondent No.2 committee did not allow to produce documentary evidence in the nature of revenue record in which the caste of the ancestors of the petitioner is shown as “Kunbi”. Not only this, the record of right showing clear picture about the caste of the petitioner is also not considered. The learned counsel invited our attention to the copy of the extract of Kotwar book showing the name of `Tukaram’ who is cousin great grand father of the petitioner, in which his caste is shown as Kunbi. Therefore, learned counsel would submit that there was sufficient evidence to prove that the petitioner is “Kunbi” by caste. Learned counsel further submitted that the committee has not taken into consideration the enquiry report submitted by respondent No.4 in which it is clearly stated that the petitioner belongs to “Kunbi” by caste. Learned counsel further submitted that the caste Scrutiny Committee has validated the caste claim of his sister Kum. Manisha by issuing certificate dated 14.6.2006. In the submissions of the learned counsel for the petitioner, the said certificate is issued to the sister is after due enquiry and after taking into consideration the necessary documents and therefore, the petitioner being real brother of Manisha, his caste claim should not have been invalidated by the committee. It is submitted that the petitioner has taken admission in Engineering College and was prosecuting his studies, however, the impugned 7 decision of the Caste scrutiny committee deprived the petitioner from prosecuting further study. Therefore, learned counsel would submit that the said decision of the committee deserved to be set aside. 7 Learned A.G.P. appearing for the respondents submitted that the respondent No.2 committee after appreciating the documents placed on record and after taking into consideration the report submitted by respondent No.4, has arrived at a proper conclusion and no interference is warranted in the impugned decision. In support of his contention, the learned A.G.P. invited our attention to the reasons recorded by the committee and submitted that the writ petition is devoid of merits and same deserves to be dismissed. 8 We have carefully perused the annexures to the petition and we are of the considered opinion that the impugned decision of the Caste Scrutiny committee is not sustainable. The perusal of the report prepared by the respondent No.4 shows that, the petitioner studied in Godavari Public School, N-12, Hudco, Aurangabad and the extract of admission register and also transfer certificate show that the petitioner belongs to “Kunbi” caste. The report further shows that the enquiry was made from the persons of the community of the petitioner about their traits / characteristics, and about their past history, and in the enquiry it is revealed that the occupation of the community of the petitioner is an agriculture and they are also working as agriculture 8 labourer. The said community cultivates the crops like Jawar, Bajra etc. The marriage ceremonies are performed in the presence of Brahmin priest. The community of which the petitioner belongs celebrates the festivals like Diwali, Dassura, Padva and their relatives’ names are Raut, Pawar and Chaudhari. The respodnent No.4 also recorded a statement of one Vikas Hari Idhate, and the statement of one Narayan Patil, who is agricultural labourer and knows the petitioner's family. In his statement, he stated that the family of the petitioner belongs to “Kunbi” caste. The Vigilance cell also referred to the caste certificate of the petitioner and caste certificate of his sister and the real brother, viz. Shivam Kaduba Navale. The report further refers to the documents i.e. Extract of Kotwar book in which the caste of the great grand father of the petitioner is mentioned as “Kunbi”. The report also refers to the affidavit filed by cousin uncle of the petitioner viz. Digambar Chandrakant Navale alongwith caste certificate. The report further refers to the affidavit of the father of the petitioner in which genealogy of the petitioner's family is explained. The report further refers to the letter issued by the Vigilance Cell to the petitioner for production of documents. The report of the Vigilance Cell concludes that after enquiry it is revealed that the petitioner belongs to “Kunbi” caste, and accordingly the said report was submitted to the respondent No.2 committee by the respondent No.4 Vigilance Cell. 9 Perusal of the impugned judgment of the Committee shows that 9 the Committee received report dated 16.6.2009 from the respondent No.4. The Committee issued show cause notice to the petitioner on 4.8.2009. The petitioner was called upon for personal hearing on 5.8.2009, in support of his caste claim the petitioner submitted as many as seven documents before the Committee. The petitioner submitted the caste certificate issued by the Deputy Collector (Setu) Aurangabad in favour of petitioner dated 1.6.2007 showing his caste as “Kunbi”. The second document i.e. Extract of admission register issued by the Head Master Godavari Public School, N-12, Hudco, Aurangabad dated 14.6.2006, in which the caste of the petitiner is shown as “Kunbi”. The third document is the school leaving certificate issued by the same authority dated 14.6.2004 showing the caste of the petitioner as “Kunbi”. The fourth document is issued by the Divisional Caste scrutiny Committee, Aurangabad in favour of Kum. Manisha Kaduba Navale, sister of the petitioner, in which her caste is shown as “Kunbi”. The said certificate is dated 14.6.2006. The fifth document is issued by the Tahsildar Chikhli i.e. copy of extract of Kotwar book, showing the entry of date of death of “Kasai Marad Rajaram Kunbi” i.e. great grand mother of the petitioner. In the said extract the date of death is shown as 21.11.1938. The said extract shows the caste of the great grand mothers of the petitioner as Kunbi. The sixth document is extract of the Kotwar book showing the date of birth of the son of Rajaram Kunbi as 3.12.1927, in which the caste is shown as “Kunbi”. Another document at Sr. No.7 is a school leaving certificate of the 10 father of the petitioner in which the caste is shown as Hindu. 10 While appreciating the document No.1 referred above, the committed opined that the said document shows the date after 13.10.1967 and therefore, no reliance can be placed on the said document. In respect of the documents at Sr. No. 2 and 3 referred to above, the Committee opined that the said documents are recent one and therefore, those documents cannot be considered as sufficient evidence to hold that the petitioner belongs to Kunbi caste. While considering the fourth document i.e. the caste certificate of the sister of the petitioner the Committee held that mere caste certificate of the relative cannot be considered as sufficient evidence. The Committee has further opined that in order to validate the caste claim, it is necessary to have at least one document of blood relatives, who is from earlier generations and the said document is either from the school or from the revenue record. While considering the document at Sr. No.5 i.e. extract from Kotwar book lshowing entry about death of “Kasai Marad Rajaram Kunbi”, grand mother of the petitioner, the committee opined that documents in respect of father, uncle, aunt grand father and great grand father can be taken into consideration from the paternal side and the certificate in respect of great grand mother cannot be taken into consideration since the same does not come under the blood relations from the paternal side. In respect of document at Sr. NO. 6 is concerned i.e. copy issued by Tahsildar 11 Chikhli from Kotar book showing the date of birth of Rajaram Kunbi as 3.12.1927, the Committee held that the said document is suspicious. The earlier name of the grand father of the petitioner is Amruta Rajaram Navale’ and the same is shown as “Sadashiv Rajaram Navale” in Government Gazette dated 20.4.2009. It is further observed by the Committee that on reading the said name in Government Gazette, it appears that the petitioner had made an intentional attempt to insert the name in Kotwar book, and accordingly the name of Sadashiv is entered in the said book, which appears to be doubtful and therefore, the said document/evidence produced by the petitioner cannot be considered. The next document is at Sr. No.7 i.e. school leaving certificate of the father of the petitioner issued by Head Master Jai Hind Madhamik Vidyalaya, in which the caste is mentioned as Hindu and therefore, the said document cannot be considered for validating the caste claim of the petitioner. In respect of other certificates submitted by the petitioner i.e. Caste certificate of sister of Manisha Kaduba Navale, brother Shri. Shivam Navale and cousin uncle Digambar Navale are concerned, the Committee observed that, said certificates cannot be considered as strong piece of evidence. 11 On the basis of the evidence produced by the petitioner and after giving opportunity of hearing to him, the Committee came to the conclusion that the “Kunbi” caste is included in O.B.C. Category on 13.10.1967, as per the Government resolution and therefore, it was 12 necessary for the petitioner to submit the documents of his relatives like father, uncle, aunt, grand father from the revenue or school record prior to 1967. However, the petitioner failed to produce the said documents. The further conclusion drawn by the committee is, the documents submitted by the petitioner in respect of his great grant mother i.e. Kasai Mard Rajaram Navale, cannot be considered since it cannot be said to be from paternal side and does not come under the blood relations from paternal side. It is further concluded that the name as Sadashiv has been intentionally included in the said document and, therefore, the Committee held that caste certificate issued by the Deputy Collector (Setu) Aurangabad showing the caste of the petitioner as “Kunbi” is invalidated and the same is canceled and forfeited and accordingly the claim of the petitioner is finally decided. 12 We have carefully perused the impugned judgment and found that the respondent No.2 Committee has not adverted to the report of the Vigilance Cell except mentioning in the judgment that the report is received from Vigilance Cell on 16.6.2009. In our opinion, the respondent No.2 Committee should have appreciated the Vigilance cell’s report in the light of the observations of the Hon'ble Supreme Court in para 13 (7) in the case of Kum. Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and others, reported in (1994) 6 SCC 241, which reads as under:- 13 “13(7). In case the report is in favour of the candidate and found to be genuine and true no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as it envisaged in para 6 be followed.” 13 In the light of the aforesaid observations of the Hon’ble Supreme Court, the committee should have discussed about the report, and in case the report or the particulars given in the report are produced or found to be false or fraudulently obtained then only, the report should have been discarded. In the impugned judgment the committee has not discussed anything about the genuineness of the report or has not assigned any reasons for not accepting the report of Vigilance cell. Therefore, in our considered opinion, the Committee failed to appreciate the report of Vigilance cell and has come to the different conclusion then expressed in the report. 14 The second aspect of the matter is the documents which were submitted by the petitioner before the Committee have not been properly appreciated by the Committee. At this juncture, it would be necessary to refer para 10 of the judgment in the case of Kum Madhuri Patil (supra). The relevant observations in para 10 of the said judgment reads thus:- 14 “10. The entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. Hierarchical caste stratification of Hindu social order has its reflection in all entries in the public records.” 15 The document at Sr. No.4 submitted before the Committee i.e. caste certificate of Kum. Manisha Kaduba Navale, the sister of the petitioner is concerned, the said committee itself has validated her caste claim. It was open for the respondent Committee to look into the evidence which was produced before it while validating the caste claim of the sister of the petitioner. The document at Sr. No.5 issued by the Tahsildar showing caste of great grand mother of the petitioner as `Kunbi’ should not have been lightly brushed aside by the Committee. The document at Sr. No. 6 i.e. copy issued by the Tahsildar Chikhli in which it was shown that Rajaram Ganpati Kunbi born on 3.12.1927 and resident of Mauje Asola, Tq. Chikhli is great grand father of the petitioner. The respondent Committee has discarded the said evidence on the ground that the petitioner has intentionally and deliberately changed the name of his grand father `Amruta’ to `Sadashiv’ in the said document. The observations of the Committee about the said document and about the petitioner are wholly unsustainable and the same are without any basis. The Vigilance cell has referred to the said document in its report and perusal of the said report would not show anything adverse in respect of its credibility or 15 authenticity. In absence of any detailed discussion or the finding, the Committee was not justified in casually discarding the said document. In our opinion, the Committee should have examined the said document in the light of the Vigilance cell report and then only should have commented about the said documents. It is admitted that the said document is prior to 1967. The said document clearly shows the date of birth of great grand father of the petitioner as 3.12.1927 and the caste of the great grand father of the petitioner as “Kunbi”. The other evidence in the nature of certificates of Manisha Kaduba Navale, Shivam Kaduba Navale and Digambar Navale, has not been properly appreciated by the Committee. On careful reading of the impugned judgment it clearly shows that the Committee has not applied its mind while deciding the caste claim of the petitioner. 16 The Vigilance cell report is coupled with the documents produced on record by the petitioner leads to the inference that the great grand father and grand father of the petitioner and also cousin uncle are from Kunbi caste. The Committee which has invalidated the claim of the petitioner, has validated the claim of the sister of the petitioner in the year, 2006. 17 In the light of the above discussion, we find it difficult to sustain the impugned judgment and order of respondent No.2 Scrutiny Committee. In our opinion, the respondent No.2 Committee has utterly 16 failed to examine the caste claim of the petitioner in the light of the Vigilance cell report as well as the documents produced on record. Therefore, the impugned order of the Caste Scrutiny Committee is quashed and set aside. The matter is remanded back to the Scrutiny Committee for fresh Consideration. The Committee shall hear the petitioner afresh and thereafter shall take appropriate decision within a period of two months from today. 18 Needless to mention that, till the caste claim of the petitioner is decided afresh, no adverse action be taken against the petitioner. Writ petition is allowed. Rule is made absolute on the above terms. ***** 17 WRIT PETITION NO.6740 OF 2009. Date of decision : 19.01.2010. For approval and signature. THE HONOURABLE SHRI JUSTICE A.M. KHANWILKAR. THE HONOURABLE SHRI JUSTICE S.S. SHINDE. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } Yes/No 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [R.L. JADHAV] Personal Assistant to the Honourable Judge.