1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1316 OF 2009 WITH CIVIL APPLICATION NO. 8793 OF 2009 IN WRIT PETITION NO. 1316 OF 2009 Fahmi Husna Seemab d/o Yunus Fahmi Age 24 years, Occ. Service, R/o. 5-2-27, Fatehbruj, Nanded Tq. and District Nanded ...Petitioner Versus 1 The State of Maharashtra Through its Secretary (Copy to be served upon the Government Pleader of High Court of Bombay, Bench at Aurangabad) 2 The Caste Certificate Scrutiny Committee Through Member Secretary and District Social Welfare Officer, Latur 3 The Dean Government Medical College and Hospital Ghati, Aurangabad 4. The Deputy Registrar, Eligibility Department, Maharashtra University of Health Sciences, Vani Road, Mhasrul, Nashik – 04. ...Respondents ..... Mr. H.I. Pathan, advocate for the petitioner Mr. V.D. Godbharle, A.G.P. for respondents. ..... CORAM: A.M. KHANWILKAR & S.S. SHINDE, JJ. DATED: 18TH FEBRUARY, 2010 2 ORAL JUDGEMNT (PER SHINDE J.) 1 Heard learned Counsel for the parties. Counsel for the petitioner seeks permission to add the Deputy Registrar, Eligibility Department, Maharashtra University of Health Sciences, Nashik, as respondent No.4. Permission granted as prayed for. Amendment be carried out forthwith. 2 Rule, returnable forthwith. Counsel for the respondents waive notice. By consent of the counsel for the parties, taken up for hearing. 3 This petition takes exception to the decision dated 30.9.2008, passed by the Caste Certificate Scrutiny Committee, Latur thereby invaliding the caste claim of the petitioner. 4 It is the case of the petitioner that she belongs to “Chhapparband” caste (Vimukta Jati). The caste claim of the petitioner was referred to the respondent No.2 Committee in the year 1999-2000 by the school authority, in which the petitioner was prosecuting her studies in 12th standard, at the relevant time. While the caste claim was pending with the Committee, the petitioner passed 12th standard and had applied for medical course from the reserved category of Vimukta Jati quota. The authority denied her admission for want of 3 caste validity certificate. Therefore, she approached this Court by fling writ petition No. 2504 of 2000 seeking directions to the committee to decide her caste claim and also direction to the authority to give her admission from reserved category for medical course. This Court by order dated 2.7.2001 allowed the petition and directed the authority to give admission to the petitioner for M.B.B.S. Course. It is further case of the petitioner that in support of her caste claim, she submitted 20 documents before the committee for validation of her caste claim. The petitioner appeared before the committee as directed by this court vide order dated 29.7.2008 in writ petition No. 2701 of 2002. Respondent committee by its order dated 30.9.2008 has once again invalidated the caste claim of the petitioner solely considering its earlier order, which was quashed and set aside by this Court on 29.7.2008. It is the case of the petitioner that though this Court by order dated 29.7.2008 directed the Committee to consider all documents filed by the petitioner, the committee has failed to consider all documents pressed into service. It is the case of the petitioner that committee has discarded the documents submitted by the petitioner either on the ground that the same are of recent origin and that the caste validity certificate issued in favour of real brother of petitioner, which is at Sr. No.2, shows entry of caste ‘Chhapparband” being 4 written later on. The reason for such finding is that there is report of Social Welfare Officer mentioning therein that it appears that “Entry of caste Chhapparband has entered later on”. 5 Learned counsel for the petitioner submitted that the report made by the Social Welfare Officer was without making enquiry with the Head Master or other employees of the school regarding entering the word “Chhapparband” in the school record of Najib Anwar Mohd. Yunus Fahmi. The Social Welfare Officer has not recorded the statement of any of the employee of the school or taken affidavit so as to come to the conclusion that the entry of caste of petitioner’s brother was taken fraudulently. On the contrary, the report of Vigilance cell clearly reveals that there was entry of caste in the record of the school of bother of the petitioner from 1976 to 1979 and the said report was not suspicious. This important aspect of Vigilance Cell has not been considered by the Committee. It is further submitted that the grand father of the petitioner namely, Maheboob Md. Burhan Shah s/o Raje Shah was in possession of 2 acres of land on conditional mortgage basis form one Altaf Garib Shah R/o. Kahala (Bk), Tq. Biloli. To that effect a deed was executed on 3rd March, 1950. Similarly, grand father of the petitioner possessed two acres land in survey No. 57/109, which he had purchased from one Hujur Shah s/o Kamal Shah. The extract of the said entry of ownership is of the year 1960-61. 5 It is further submitted that the Government of Maharashtra by its communication dated 29.6.2006 directed the concerned Collectors, Sub Divisional Officers and Caste Scrutiny Committees in the State that while doing verification of the persons belonging to Muslim caste, Chhapparband, if words “Shah” and “Fakir” are mentioned in the names in the document concerned, the same denotes that the person belongs to Chhapparband caste. The petitioner's grand father do possess revenue record regarding the word “Shah” and Fakir” in his name and the documents are of the year prior to declaring the said caste as “Vimukta Jati”, the documents are having evidentiary value in deciding the caste claim of the petitioner. It is further submitted that as per the property registration card of the ancestral property of Maheboob Md. Burhan, after demise of said Burhan, the said property was transferred in the name of his wife and daughter by name Aminabi and Mumtaz, respectively. This revenue entry document is obtained from City survey Office at Vijapur (Karnataka State), which shows that the caste of the family of petitioner is Chhapparband. Learned counsel for the petitioner further submitted that the committee ignored the other documents placed on record and mainly relied upon the validity certificate of brother of the petitioner and entry of caste in his school record, which according to the Committee, was entered later on. It is further submitted that the Committee failed to consider the Government Resolution dated 22.8.2007 wherein it is 6 specifically directed to the Scrutiny Committee in the State of Maharashtra that if father, real brother or the near blood relations of the person is having caste validity certificate and if the same is filed in support of the verification of the caste claim, then the Committee should not ask for other documents for verification and issue the caste validity certificate within one month. It is further submitted that the petitioner is now practicing as Medical Officer at Public Heath Center, Hayatnagar, Tq. Basmat, District Parbhani on adhoc basis prior to three months of filing this petition. It is further submitted that the respondent Committee totally ignored the voluminous documents produced before it by the petitioner and discarded the validity certificate of the brother of the petitioner on its own imagination without there being any such record to suspect. It is further submitted that the petitioner in support of her caste claim had submitted number of documents before the Committee. However, the order of Committee dated 30.9.2008 invaliding the caste claim of the petitioner and intimation to respondent No.3 College to take action against the petitioner as per Section (10) (1) and (2) of the Maharashtra Scheduled Castes, 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 and in turn, respondent No.3 college, without following due procedure as provided under Section 10 of the said Act, is likely to take action against the petitioner and therefore, it is 7 necessary to quash and set aside the decision of respondent Committee, as the same is contrary to the documents produced on record by the petitioner. Learned counsel further submitted that during pendency of this writ petition, this Court, by way of interim order has protected the interest of the petitioner by restraining respondent No.3 from executing and implementing the impugned order dated 30.9.2008 passed by the Committee and taking action against the petitioner as per section 10(1) and (2) of the Act. Learned Counsel further invited our attention to the contents of the civil application No. 8793 of 2009 filed during pendency of the petition to the effect that the petitioner has completed her M.B.B.S. Course and was practicing as medical Officer at Primary Health Center, Hayatnagar, Tq. Basmatnagar, District Parbhani, till July, 2009. However, respondent No.4 has not issued internship completion certificate and degree certificate. It is further submitted that in spite of the application alongwith copy of order granting interim relief dated 2.3.2009, requesting respondent No.3 to issue internship completion certificate and degree certificate, respondent No.3 has not communicated the progress in the matter of the petitioner’s caste claim to respondent No.4. For want of caste certificate, the petitioner is unable to register her name with the Maharashtra Medical Council and extend her medical services to the needy people. So also the petitioner is unable to apply for further higher studies for want of degree certificate. Therefore, learned counsel prays that this Court may direct the respondent Nos.3 and 4 to 8 issue internship completion certificate and degree certificate of M.B.B.S. so that she can apply for higher studies. 6 Learned counsel appearing for respondent Committee vehemently opposed the writ petition and submitted that the respondent Committee has adverted to each and every document, filed by the petitioner before the Committee and after following the proper procedure and making necessary enquiry , the Committee has reached at correct conclusion and therefore, no interference is warranted in writ jurisdiction. 7 We have heard learned counsel appearing for the parties. We have also perused the reasons recorded by the committee in support of its decision thereby invaliding the caste claim of the petitioner. On perusal of the record placed before the Committee, it is evident that the petitioner, in support of her claim, has submitted as many as 22 documents before the Committee for its consideration. The details of those documents are reproduced herein below;- 1. Caste certificate of the petitioner belonging to Chhapparband (V.J.) dt.7.8.1998 issued by Dy. Collector & Special Land Acquisition Officer, Nanded. 2. Caste validity certificate dated 25.6.1990 of petitioner’s brother Mohd. Nazib Anwar Mohd. Yunus issued by Caste Scrutiny Committee, Pune. 9 3. College leaving certificate of the petitioner dated 3.7.1999 issued by Principal, Pratibha Niketan Junior College,Nanded showing caste as Chhapparband. 4. College leaving certificate of the petitioner’s brother Mohd. Nazib Anwar Mohd. Yunus dated 30.6.1985 issued by Principal, Pratibha Niketan Junior College, Nanded showing caste as Chhapparband. 5. Copy of extract of Service Book of petitioner’s father Mohd. Yunus Fahami showing caste as Chhapparband. 6. Caste certificate dated 28.6.1989 of petitioner’s father Mohd. Yunus Fahami issued by Tahsildar & Taluka Executive Magistrate, Nanded. 7. Caste certificate of petitioner’s uncle Mohd. Yakub Mohd. Burhan showing his caste as Chhapparband issued by Tahsildar, Nanded. 8. Caste certificate of petitioner’s cousin Mohd. Burhan Raheman s/o Mohd. Yakub dt. 29.11.1997 as Chhapparband (Vimukt Jati). 9. School leaving certificate of petitioner’s cousin Mohd. Burhanur Raheman s/o Mohd. Yakub dt. 16.6.1994 issued by Head Master, Madina-Tul-Ulm High School, Nanded. 10. Caste certificate dated 7.8.1998 issued by Dy. Collector, Nanded in respect of cousin of petitioner namely Mohd. Burhan Raheman s/o Mohd. Yakub. 11. College leaving certificate of petitioner’s cousin Mohd. Inamoor Raheman s/o Mohd. Yakub dated 3.8.1998 issued by Head Master, Faijal Ulm High School & Junior College, Nanded. 10 12 Pedigree given by petitioner’s father in his affidavit dt. 7.6.2001. 13. School admission extract dt.21.6.1988 of petitioner issued by Head Master, Madina-tul-Ulm Primary School, Nanded. 14. Admission letter submitted by petitioner while taking admission in school. 15. School admission extract dated 22.7.1976 of petitioner’s real brother Mohd. Nazib Anwar Mohd. Yunus Fahami issued by Head Master, Madin-tul-Ulm Primary School, Nanded. 16. Admission extract of petitioner’s real brother Mohd. Nazib Anwar Mohd. Yunus Fahami dt. 13.6.1979. 17. Extract of School Admission Register of petitioner’s father having no caste column. 18. Enquiry Report submitted by Special District Social Welfare Officer, Nanded vide letter No.171 dt. 8.1.02. 19. Ancestral property extract of Petitioner issued by City Survey Office, Bijapur (Karnatak). 20. Pedigree given by petitioner’s cousin Razzak Pirjada and affidavit dt.19.8.1989. 21. Affidavit of petitioner’s real brother Mohd. Nazib Anwar Mohd. Yunus Fahami dt.19.8.09. 22. Affidavit of petitioner Husna Simab Fahami d/o Mohd. Yunus Fahami dt. 19.8.09. 11 8 On perusal of the decision of the committee, it clearly appears that in spite of specific directions give by this Court in order dated 29.7.2008 passed in writ petition No. 2701 of 2002, respondent Committee has not considered the documents properly. While considering the documents at Sr. Nos. 3, 8, 9, 11 and 12, the committee has rejected the documents on the ground that those are of recent origin. This finding of the committee is not sustainable. In fact, if the documents pertain to pre-independence period, those have great probative value. That does not mean that the documents having origin after independence, do not have any evidentiary value. It cannot be said that the documents of recent origin cannot be considered as a piece of evidence in support of validation of the caste claim. Therefore, the finding recorded by the committee regarding documents at sr. No. 3, 8, 9,11 and 12 that those are of recent origin and therefore, the same cannot be relied upon, is required to be struck down. 9 The main ground on which the committee has invalidated the caste claim of the petitioner is the report of the Special District Social Welfare Officer, Nanded stating that during the inspection it is found that caste of the petitioner’s brother i.e. “Chhapparband” is included/mentioned subsequently in the school record and there is also difference of word “Chhapparband” in the school admission register and other documents maintained by the school. The 12 Committee has discarded the caste validity certificate of the petitioner's brother on the ground that in the school record the caste “Chhapparband” is mentioned subsequently and the same documents are relied upon by the petitioner. At this juncture, it is necessary to refer to the decision of the Apex Court in the case of Kumari Madhuri Patil and Anr. Vs. Additional Commissioner, Tribal Development and others, reported in (1994) 6 SCC 241. The Apex Court in para 13(5) of the said judgment observed thus:- “13. (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 officer should personally verify and collect all the facts of the social status claimed 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 proformas, 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 13 concerned etc.” 10 Upon perusing the above observations, it is clear that the Vigilance Cell is supposed to visit the place of the candidate and make investigation or enquiry into the social status claimed. The police Inspector is expected to go to the local place of residence and original place from which the candidate hails and usually resides and further to personally verify and collect all facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school record, birth registration, if any. Therefore, the procedure which is prescribed in the aforesaid paragraphs is required to be followed by the vigilance Cell and more particularly, by the Police Inspector who has given the task of investigation. In the instant case, it is undisputed position that the vigilance Cell has submitted its report on 11.8.2001 to the Committee. The said vigilance report is placed on record at Exh. “U” of this petition. It is stated in the said report that the elder brother of the petitioner viz. Mohd. Najib Anwar s/o Mohd. Yunus has taken primary education in 1976 to 1979 in Madina Tul-Uloom Primary School Nanded. In the school admission register as well as the application which was filled to take admission, the caste of the brother of the petitioner is mentioned as Chhapparband. There is nothing to doubt the said entries or as a matter of fact, nothing doubtful or suspicious has been found in the said entry. Therefore, in the backdrop of the report of the vigilance 14 Cell submitted to the Committee, it was incumbent upon respondent Committee to consider the report of the Vigilance cell since the said Cell is constituted in pursuance to the judgment of the Apex Court in the case of Kumari Madhuri Patil (supra). On perusal of the reasons recorded by the committee, it is difficult to appreciate as to under which provisions the Special Social District Officer is empowered to take search of the school record and whether his report can be the basis to discard the caste validity certificate of brother of the petitioner in support of petitioner’s caste claim. Therefore, when the vigilance cell report unequivocally indicates that the school record of the brother of the petitioner mentions the caste as ‘Chhapparband”, then there is nothing to question in respect of the said entry as long as validity of the caste certificate of the petitioner's brother is intact. Thus, the finding recorded by the committee relying on the inspection report of the District Special Social Officer, Nanded, discarding the important document in the nature of validity certificate of the brother of the petitioner produced in support of her caste claim, cannot be countenanced. 11 On careful perusal of the impugned decision, it does appear that the whole approach of the committee to discard the documents placed on record by the petitioner appears to be casual in nature. We refrain from making any further comments about non appreciation of the documents produced by the petitioner on record. In the light of the 15 above discussion, it can safely be concluded that the Committee has not properly applied its mind in appreciating the documents which were brought on record by the petitioner. The petitioner has placed on record number of documents, which are relevant to decide the caste claim of the petitioner. However, by giving frivolous reasons, the committee has rejected those documents. On perusal of the reasons recorded by the Committee, we also find that the documents which were placed on record in respect of real uncle of the petitioner and service record of the year 1973 of the father of the petitioner in which caste is mentioned as “Chhapparband”, has not been properly considered by the Committee. 12 Taking over all view of the matter, we find that the finding recorded by the Committee is not sustainable. In fact, in earlier round of litigation, this Court by order dated 29.7.2008 in writ petition No. 2701 of 2002 has specifically directed respondent Committee to look into each of the documents submitted by the petitioner. However, we find that the Committee has taken a note of the said document, however, not properly appreciated the evidentiary value of the said documents. The approach of the Committee to brush aside the vigilance cell report while discarding the validity certificate of the brother of the petitioner in support of her caste claim, shows total non application of mind. 16 13 In the circumstances, we feel it appropriate to quash and set aside the impugned decision dated 30.9.2008 of the Respondent No.2 Scrutiny Committee and remit the matter back to the committee for its fresh consideration and decision. 14 In the result, the impugned decision of the respondent No.2 Committee dated 30.9.2008 is quashed and set aside. The matter is remitted back to the Caste Scrutiny Committee for its fresh consideration and decision. The caste claim of the petitioner on the file of the respondent No.2 Committee is restored to its original position. The Committee shall hear the petitioner afresh. The petitioner is directed to appear on 8.3.2010 at 11.00 a.m. in the office of respondent No.2 Committee. It is made clear that the committee shall proceed to decide the caste claim of the petitioner, on the basis of the documents which are already placed on record and the committee shall not permit the petitioner to place any additional document on record. The Committee shall decide the validity of the caste claim of the petitioner within four months from today. In the meantime, the interim order, as is passed by this Court in terms of prayer clause (E) of this petition, shall continue to operate till the final decision of the respondent No.2 Committee. Since we have quashed and set aside the impugned decision, it will be open for the petitioner to apply for higher studies on 17 the basis of the caste certificate subject to validation by the Scrutiny Committee. We further direct that respondent Nos. 3 and 4 to issue Internship completion certificate and Degree Certificate of M.B.B.S. course to the petitioner within one week from today, which will also be subject to the validation of the caste claim of the petitioner by the respondent Committee. Petition disposed of on the above terms. Rule made absolute accordingly. In view of disposal of the petition, nothing survives for consideration in civil application No.8793 of 2009 and the same is disposed of . *****