Bombay High Court
Sachitanand Premrao Sirsewad And ... vs The State Of Maharashtra Through The ... on 9 December, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
wp14762.21
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.14762 OF 2021
1) Sachitanand S/o- Premrao Sirsewad,
Age-32 years, Occu:Service,
2) Digambar S/o Vasantrao Sirsewad,
Age-36 years, Occu:Service,
3) Premanand S/o Bapurao Sirsewad,
Age-37 years, Occu:Service,
4) Prasad S/o Premrao Sirsewad,
Age-29 years, Occu:Education,
5) Arti D/o Premrao Sirsewad,
Age-33 years, Occu:Service,
All R/o-At Post-Bhisi, Taluka-Kinwat,
District-Nanded
...PETITIONERS
VERSUS
1) The State of Maharashtra,
Through the Secretary,
Higher Technical Education
Department, Mantralaya, Mumbai,
2) The Scrutiny Committee for Scheduled
Tribes, Through its Vice Chairman,
Aurangabad,
3) The Chief Engineer (Technical),
Maharashtra State Electricity
Distribution Company Ltd.,
Astrella Batteries Extension Building,
1st Floor, Dharavi, Matunga Road,
Mumbai-400019,
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
2
4) The Sub-Divisional Officer,
Kalamb, Taluka-Kalamb,
District-Osmabad,
5) The Chief Executive Officer,
Zilla Parishad, Nanded,
Taluka and District-Nanded,
6) The Director,
Directorate, Medical Education
& Research, Mumbai, Government
Dental College and Hospital Building,
4th Floor, St. Georges Hospital premises
P-Dimelo Road, Fort, Mumbai-400001.
...RESPONDENTS
...
Mr.S.B. Talekar Advocate i/b. Mr. S.B. Thorat Advocate a/w.
Mr.T.M. Venjane Advocate, Mr. Vikrant Valse Advocate, Mr. Om
Totawad Advocate for Petitioners.
Mrs.M.A. Deshpande, A.G.P. for Respondent Nos.1, 2, 4 & 6.
Mr.A.M. Gaikwad Advocate for Respondent No.3.
Mr.S.B. Pulkundwar Advocate for Respondent No.5.
...
CORAM: SMT. VIBHA KANKANWADI AND
R.M. JOSHI, JJ.
DATE OF RESERVING JUDGMENT : 14 th OCTOBER 2022
DATE OF PRONOUNCING JUDGMENT : 9th DECEMBER 2022
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Rule. Rule returnable forthwith. With the consent of the
parties, Petition is taken up for final disposal at the admission
stage.
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
3
2. The petitioners are challenging the order passed by
respondent No.2 on 15th December 2021 in respect of the tribe
claim of the petitioners. By the said impugned order, the tribe
claim made by the petitioners has been invalidated.
3. The petitioners are the relatives of each other. Petitioner
No.1 is appointed as engineer by respondent No.3. Petitioner
No.2 is appointed as Talathi by respondent No.4. Petitioner No.3
is appointed as Gramsevak by respondent No.5 and petitioner
No.5 has been appointed as MRI Technician by respondent No.6.
Their appointments are under the Scheduled Tribe category.
They belong to Scheduled Tribe, "Mannerwarlu". The tribe claim
of the petitioners was sent for validation to the scrutiny
committee. The petitioners had produced various documents to
support their claim. The research officer had conducted the
inquiry and the vigilance report has been submitted. After the
report was received, notice thereof was given to the petitioners.
Accordingly, they had raised objections. Hearing had taken place,
however, respondent No.2 scrutiny committee rejected the tribe
claim of the petitioners. Hence the present Writ Petition.
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
4
4. It has been vehemently submitted on behalf of the
petitioners that the order of invalidation of tribe claim passed by
respondent No.2 is patently without application of mind.
Respondent No.2 failed to take into consideration the documents
which were produced by the petitioners and wrongly held that
the affinity test has not been proved by the petitioners. It
appears that the approach of the committee is negative. The
committee has failed to consider the caste validation certificates
issued to father of petitioner Nos.1, 4 and 5, and brother and
sister of petitioner No.2. When the caste validity certificate has
been issued to a blood relative, then definitely that is binding.
Rather, when it is proved through genealogy that person now
claiming validity is related to the person to whom validity
certificate has been given, then the person now claiming validity
is not required to go through the said test. The vigilance report
itself was not required. The decision in Apoorva d/o Vinay
Nichale vs. Divisional Caste Certificate Scrutiny
Committee No.1 and others, 2010(6) Mh.L.J. 401, was not
at all considered. The vigilance report at the time granting
validation to those relatives of the petitioners ought to have
been considered by respondent No.2.
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
5
5. It has been further vehemently submitted on behalf of the
petitioners that tribe "Mannerwarlu" was forming part of the
Constitution (Scheduled Tribes) Order, 1950 from the erstwhile
State of Hyderabad. Copy of the Gazette of India dated 6 th
September 1950 has been produced. Learned Advocate for the
petitioners submitted that tribe "Mannerwarlu" was not forming
part of the said list from erstwhile Bombay State. Thereafter
also, there was no change when the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1956 came into force
with effect from 25th September 1956. However, the said tribe
came to be included by way of amendment of 18 th September
1976 by the Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1976. As per the said amendment, the said
tribe came to be included for the first time in the State of
Maharashtra in Part IX of the said Gazette in the First Schedule
as entry No.27. Therefore, when the caste / tribe came to be
recognized in the State of Maharashtra as part of the Scheduled
Castes and Scheduled Tribes Act for the first time after
September 1976, then more importance ought to have been
given by respondent No.2 to those documents which were
carrying the entry of the caste / tribe as "Mannerwarlu" prior to
1976. Nobody had contemplated prior to 1976 that reservation
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
6
would be given to those persons who are from "Mannerwarlu"
tribe. Along with the claim, certain documents have been
produced of the relatives as well as father of three of the
petitioners to show that they were "Mannerwarlu" by tribe.
Respondent No.2 committee has unnecessarily taken note of
other documents. Even if we consider those documents which
were considered by the committee, though in some of
documents the spelling differs and it is mentioned as Manerwarlu
" (मानेरवारलू) " and at some places as Munerwarlu "(मुनेरवारलू)",
the committee has not considered other documents wherein the
tribe has been mentioned as "Mannerwarlu" and wrongly held
that the petitioners have failed in proving the affinity test and
that they do not appear from the area where the persons from
"Mannerwarlu" tribe reside. In Anand vs. Committee for
Scrutiny and Verification of Tribe Claims and others,
(2012) 1 SCC 113 and Priya Pravin Parate vs. Scheduled
Tribes Caste Certificates Scrutiny Committee, Nagpur and
others, 2013(1) Mh.L.J. 180, it has been held that, affinity
test cannot be regarded as a litmus test and cannot be the sole
criteria for rejecting the tribe claim. Further, in Apoorva d/o
Vinay Nichale vs. Divisiona Caste Certificate Scrutiny
Committee No.1 (supra), in Kum. Snehal D/o Sambhaji
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
7
Admulwad vs. the State of Maharashtra (Writ Petition
No.12021 of 2018, decided on 23 rd June 2022) and in
Abhishek Mahendra Umbarje vs. the State of Maharashtra
and others (Writ Petition No.5517 of 2022, decided on
23rd September 2022), this Court has held that the validity
certificate issued in favour of blood relative is binding on another
committee unless it is obtained by fraud. In Anil S/o Shivram
Bandawar vs. District Caste Certificate Verification
Committee, Gadchiroli and another, 2021(5) Mh.L.J. 345,
Vishnu Rajaram Thakar vs. State of Maharashtra and
another (Writ Petition No.647 of 2022, decided on 9 th
March 2022), Sanjay Haribhjau Munnur vs. the State of
Maharashtra (Writ Petition No.3223 of 2002, decided on
13th September 2017) and in Balaji S/o Gunaji Chitale vs.
the State of Maharashtra and another (Writ Petition
No.2552 of 2019, decided on 8 th September 2022), it is
held that the scrutiny committee does not have the power of
review. Learned Advocate for the petitioners then pointed out
that show cause notices have been issued to those persons to
whom earlier the validity certificates have been issued, as to why
their validity should not be cancelled. It is submitted that when
entire procedure was followed and the certificates have been
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
8
issued, now it cannot be negatived under the guise of review
powers. Herein this case the committee has not come to the
conclusion that any record has been manipulated by the
petitioners. As the impugned decision has been illegally arrived
at, it deserves to be set aside and the validity certificates need
to be issued in favour of the petitioners.
6. Learned AGP appearing for the respondents submitted that
initial burden is on the petitioners to prove that they belong to
"Mannerwarlu" tribe. The petitioners should not have suppressed
any document. Herein this case the school record of some of the
petitioners would show that their caste has been stated as
"Mannairwarlu". Further, the vigilance report does not show that
the relatives of the petitioners had migrated from the original
place of residence of the tribes. Some of the school registers
were not available in the school itself. If the entries in the school
were wrong or showing some different caste / tribe, then it
ought to have been got corrected as provision to that effect
exists in School Code. Later on, there cannot be changes in the
said record. The Full Bench of this Court in Janabai Himmatrao
Thakur vs. State of Maharashtra and others, 2019(6)
Mh.L.J. 769, held that, an application for alteration in the
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
9
entries in the General Register is permissible, with the previous
permission of the appropriate authority at any time when the
pupil is attending the school. No application for alteration in the
figure of date of birth is permissible after the student has left
secondary school, except correction in the nature of 'obvious
mistakes' as indicated in Clause 26.3 i.e. of a nature where the
date of a particular month which does not exist in the calendar
and likewise. Learned AGP also relied on the decision of this
Court in Yogita Subhash Thakur vs. the State of
Maharashtra (Writ Petition No.7988 of 2015 decided on
1st August 2017), wherein it is held that, when grand father's
school admission register of petitioner carried entry of the caste
as "Thakur" and her father's record shown the entry in school as
"Hindu Maratha", then such changes cannot be accepted and the
writ jurisdiction under Section 226 of the Constitution of India
cannot be exercised. Learned AGP further submits that in the
present case even 7 X 12 extracts of the land of the father of
petitioner Nos.1, 4 and 5 does not show any entry about the
caste of the family. The decision taken by the committee is
perfectly correct and it does not require any kind of interference.
If the said order is now set aside then it would affect the notices
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
10
which have been already issued to those relatives on whose
validity certificates the petitioners are relying.
7. There is much substance in the say of the learned
Advocate for the petitioners. It is to be noted that tribe by name
"Mannerwarlu" was initially recognized to be a Scheduled Tribe
when the Gazette of India dated 6th September 1950 came into
existence. However, later on it appears that in 1956 it got
dropped. It appears that earlier inclusion of the said tribe was
from Hyderabad State and then the said tribe came to be
recognized as Scheduled Tribe only in the year 1976. Definitely
as regards the documents prior to 1976 are concerned, nobody
could have had any dream that the said tribe would be
recognized as Scheduled Tribe in future. The record shows that
before respondent No.2 committee there were four documents
which were of the years prior 1976. Those documents are at
serial Nos. 20, 23, 30 and 95. One of the said documents i.e.
document at serial No.20 relates to Premrao Kisanrao Sirsewad,
who is father of petitioner Nos.1, 4 and 5, and the document is
dated 25th September 1967 in respect of his admission in the
school. Thereafter there is another document at serial No.23
dated 25th July 1970, which relates to paternal aunt of petitioner
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
11
Nos.1, 4 and 5, Mayabai Kisanrao Sirsewad, about admission in
the school. One Shobha Dattarao Sirsewad is stated to be cousin
paternal aunt and her admission document is dated 16 th June
1975. The caste certificate of Kisanrao Ganpati Sirsewad, who is
grand father of petitioner Nos.1, 4 and 5, is dated 5 th May 1965.
All these documents have been brushed aside by the committee
on the ground that intentionally the caste has been written in
those documents as "Mannerwarlu". The committee has not gone
into the aspect that the said tribe came to be recognized for the
first time only in the year 1976.
8. Another fact which has to be stated that at the time of
verification of caste certificate of father of petitioner Nos.1, 4
and 5, vigilance was conducted and the copy of the report has
been produced. In the said vigilance everything was considered
and further it is stated that one more relative of said applicant,
i.e. father of present petitioner Nos. 1, 4 and 5, was given
validity certificate on 30th October 1982. The said relative is
cousin brother (maternal brother) - Subhash Vitthalrao
Chahalwar. Even at that time, said Premrao Kisanrao Sirsewad
had produced "Namuna No.3 - Pahni Patrak Ahwal" in the name
of his father Kisanrao Ganpati Sirsewad and it was of the year
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
12
1951, in which his caste was mentioned as "Mannerwarlu".
Before the scrutiny committee, the genealogy was produced by
the present petitioners and it was also stated that another
relative by name Balanand Bapurao Sirsewad, who appears to be
the brother of petitioner No.3, had received the validity
certificate. Said Balanand Bapurao Sirsewad had then claimed
that validity certificate has been issued to his relative,
Rameshwar Sayanna Palepwad and it was issued by the same
committee, i.e. respondent No.2. Affidavits of Rameshwar
Sayanna Palepwad and another relative Vyankati Maroti Made
were attached, who were given validity certificates by
respondent No.2 committee itself.
9. Thus, it is to be noted that respondent No.2 has not
conducted the inquiry in proper way. Other relatives,
Satyanarayan Bapurao Sirsewad (brother of petitioner No.3) and
Sharmila Bapurao Sirsewad (sister of petitioner No.3) were also
given validity certificates. The affidavit of petitioner No.5 - Arti
D/o Premrao Sirsewad before the committee has given more
clear picture, as to who were the other relatives to whom validity
certificates have been issued. When validity certificates have
been issued to all these relatives of the petitioners by the same
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
13
committee, unless there was some cogent and conclusive
evidence about fraud, the same committee could not have
undertaken a review of its own decision. The impugned decision
now rendered, is totally against the rules and regulations and
the decision in Apoorva d/o Vinay Nichale vs. Divisiona
Caste Certificate Scrutiny Committee No.1 (supra). When
the validity certificates of the relatives were produced /
disclosed, then there was absolutely no necessity for any affinity
test.
10. The decision in Yogita Subhash Thakur vs. the State of
Maharashtra (supra) will not be helpful to the respondents as
the facts were different. In the said case there was only one
document which was oldest which petitioner therein was relying,
so those observations have been made by the co-ordinate Bench
of this Court. Question of area restriction was also not the point
involved. There was no necessity for the present petitioners to
get any school record corrected. All the inquiry was done at the
behest of respondent No.2 itself. The impugned decision is rather
in the form that respondent No.2 was sitting in appeal over its
own file and present committee is raising doubts over the earlier
constituted committee, which is not permissible at all.
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::
wp14762.21
14
11. In view of the fact that the order passed by respondent
No.2 on 15th December 2021 is totally illegal, it needs to be set
aside by allowing the Writ Petition. Hence following order:-
ORDER
(I) Writ Petition stands allowed. (II) The order passed by respondent No.2 - Scrutiny
Committee on 15th December 2021 invalidating the tribe claim of the petitioners stands quashed and set aside.
(III) Respondent No.2 - Scrutiny Committee is directed to forthwith issue certificates of validity in favour of the petitioners, certifying that they belong to "Mannerwarlu", Scheduled Tribe. (IV) Rule is made absolute in above terms.
[R.M. JOSHI] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/DEC22
::: Uploaded on - 09/12/2022 ::: Downloaded on - 10/12/2022 21:32:07 :::