Gujarat High Court
Pareshkumar Jalambhai Khant vs State Of Gujarat on 24 February, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/676/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 676 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
PARESHKUMAR JALAMBHAI KHANT
Versus
STATE OF GUJARAT & 4 other(s)
==========================================================
Appearance:
BHUPENDRAKUMAR G CHAVDA(8140) for the Petitioner(s) No. 1
JAY B TRIVEDI(7474) for the Petitioner(s) No. 1
MR D V KANSARA(7498) for the Petitioner(s) No. 1
DHRUVIK K PATEL(7769) for the Respondent(s) No. 6
MR UTKARSH SHARMA, ASST GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2,5
Ms. DIXA U PANDYA(9412) for the Respondent(s) No. 6
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4
==========================================================
CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 24/02/2020
ORAL JUDGMENT
Page 1 of 18
Downloaded on : Mon Jun 15 09:13:31 IST 2020
C/SCA/676/2018 JUDGMENT
1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned Assistant Government Pleader waives service of notice of rule. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing today.
2. By way of this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order dated 15.12.2017 by which the petitioner's caste certificate recognising him as Hindu Bhil Khant as a Scheduled Tribed candidate is cancelled.
3. The facts in brief are as under:
3.1 On 21.11.2014, an advertisement was issued for the recruitment of Police Sub-Inspector, Assistant Sub-Inspector, Constable and other posts. Since the petitioner belonged to the Scheduled Tribe category, he applied for the post of Police Sub-Inspector under the said category and cleared the written examination as well as the physical test and also the oral interview. He was selected to the post of Police Sub-Inspector and was so appointed by an appointment order dated 11.01.2016.
3.2 Pursuant to his appointment order, the petitioner went for training to Karai Police Academy on 01.02.2016. While the petitioner was under training he received a communication of June 2016 asking for documents so as to substantiate the veracity of his caste certificate. Pursuant to such communication, the petitioner appeared before the Commissioner, Tribal Development Department on Page 2 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT 23.06.2016. The case of the petitioner is that he remained present with all the requisite documents to substantiate his claim that in fact he was a Scheduled Tribe candidate belonging to the Hindu Bhil caste. By a communication dated 02.08.2016 and an order of 06.08.2016, the caste certificate of the petitioner was cancelled.
3.3 Aggrieved by the communication cancelling the caste certificate, the petitioner amongst others approached this Court by filing Special Civil Application No. 14657 of 2016. The petition was heard extensively and this Court on 09.03.2017 after making certain observations especially in context of the petitioner as set out in paragraph no. 14 of the order directed the Scrutiny Committee to scrutinize the caste certificate after granting the petitioner a reasonable opportunity of hearing. Relevant portions of the order dated 09.03.2017 read as under:
"12. In the light of aforestated legal position, if the facts of the present petitions are appreciated, there remains no shadow of doubt that the Scrutiny Committee, who was constituted to verify the genuineness of the caste certificates issued to the petitioners, was required to consider all the relevant material placed before it by the concerned candidates whose certificates were being scrutinized and was also obliged to give personal hearing to such candidates before holding that their caste certificates were not genuine. Though it is true that the burden lies on the candidates holding such caste certificates to prove that the same are true and genuine, such certificate could not be cancelled on the basis of the report of the Scrutiny Committee, which had not properly followed the directions issued by the Supreme Court in the case of Kumari Madhuri Patil (supra). It also appears from the proceedings of Page 3 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT the committee recorded on 02.08.2016 that the Scrutiny Committee had not called for the report of the Vigilance Cell, nor had issued the show-cause notices to the concerned candidates as contemplated in the directions issued by the Supreme Court in the said case. The Committee also does not appear to have taken into consideration the relevant documents produced by the five petitioners whose caste certificates have been sought to be cancelled.
13. Under the circumstances, without going into the merits of each case, the Court deems it proper to set aside the impugned orders dated 06.08.2016 passed by the respondent No.1 cancelling the caste certificates of five petitioners on the basis of the report of the Scrutiny Committee dated 02.08.2016 and to direct the said committee to take decision afresh about the genuineness of the said certificates, after calling for the report from the vigilance cell, and after considering the relevant documents produced by the petitioners whose certificates are sought to be cancelled.
14. In that view of the matter, the impugned order dated 06.08.2016 passed in respect of the caste certificates of the five petitioners are set aside. The Scrutiny Committee is directed to scrutinize the caste certificates issued in favour of the said petitioners i.e. Ajay Samatbhai Zampda, Kamleshkumar Sarman Garchar, Sanjaykumar Vejabhai Garchar, Kinjalkumar Chandubhai Rana and Khant Pareshkumar Jhalambhai, after calling for the report from the Vigilance Cell, and after granting the said petitioners, reasonable opportunity of hearing and after considering the documents adduced by them. The Committee shall take appropriate decision and submit the report to the respondent No. 1 as expeditiously as possible and not later than 30.04.2017.
15. It is clarified that the Court has not expressed any opinion on the genuineness of the caste certificates of the petitioners. It is further clarified that since the respondent No. 2 Gujarat Police Recruitment Board has been restrained from Page 4 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT terminating the services of the petitioners, by virtue of an interim order passed by this Court on 23.09.2016, the same shall continue till the decision is taken by the Scrutiny Committee.
However, mere continuation of the said petitioners in service by virtue of the said interim order or by this order shall not create any right or equity in favour of the said petitioners, and their services shall be liable to be terminated, if the Committee ultimately comes to the conclusion that the said caste certificates issued in their favour were not genuine.
16. Subject to the aforesaid directions, the five petitions i.e. Special Civil Applications Nos. 15402 of 2016, 13900 of 2016, 13901 of 2016, 13902 of 2016, and 14657 of 2016 are allowed, and Special Civil Application No. 13881 of 2016 is dismissed.
3.4 Pursuant to the directions so given, the impugned order has been passed cancelling the caste certificate of the petitioner primarily on two grounds namely that on inquiry by the Vigilance Committee, a copy of the caste certificate of 07.06.2000 issued in favour of the petitioner was not found in the office of the Ahmedabad Commissionerate. The second ground that primarily weighed with the authorities was that the petitioner's father Jalambhai Khnat though had a School Leaving Certificate wherein the caste (Hindu Bhil Khant) was so recorded, however, there was no revenue record in the name of the father or the grandfather of the petitioner to suggest that they possessed land and revenue entries under Section 73A and 73AA of the Land Revenue Code were so recorded.
4. Mr. J.B. Trivedi, learned advocate for the petitioner would draw my attention to the order passed by this Court on Page 5 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT 18.01.2018 while issuing notice. The order dated 18.01.2018 reads as under:
"Learned advocate Mr.Jay Trivedi for the petitioner submits that the decision in Damodar Narmadaben Pujabhai v. State of Gujarat being Special Civil Application No.14541 of 2008 decided on 31st July, 2017 would apply in the facts of the present case and on that basis, it is submitted that the impugned order of the Scrutiny Committee derecognising the caste certificate may be quashed and set aside. He further relied upon two orders of Special Civil Application No.15091 of 2013 and Special Civil Application No.6978 of 2013.
2. Notice for final disposal, returnable on 24th January,2018, to be listed at 02.30 p.m.
3. By way of ad-interim relief, it is directed that services of the petitioner shall not be terminated till the next date.
Direct service today is permitted."
4.1 Mr. Trivedi would invite my attention to assail the first reason that no caste certificate of the petitioner was present at the Ahmedabad Commissionerate as so recorded in the impugned order by taking the Court through the caste certificate dated 07.06.2000. He would submit that since caste certificate was issued at Mamlatdar office, Gandhinagar obviously there would have been no record at Ahmedabad. In fact, the endorsement indicates that the certificate was issued by the Vigilance Officer, Ahmedabad with Certificate No. 9/91 dated 07.06.2000.
4.2 According to Mr. Trivedi, learned advocate for the Page 6 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT petitioner there was extensive contemporaneous evidence to suggest that the petitioner belonged to the Hindu Bhil community which is evident from the following certificates :
(I) School Leaving Certificate of the petitioner wherein the petitioner's caste is shown as Hindu Bhil Khant. (II) School Leaving Certificate of the father of the petitioner dated 26.07.1979 showing his caste as Hindu Bhil Khant.
(III) School Leaving Certificate of the paternal uncle of the petitioner also showing his community as that of Hindu Bhil Khant.
(IV) Revenue records have been placed on record to show that the father of the petitioner had lands and revenue records unequivocally show the name of the petitioner of holding and possessing agricultural lands in his name.
(V) Also was a certificate of caste ( Hindu Bhil Khant) issued in favour of the petitioner's brother dated 28.06.1999 which also specifically shows that the brother of the petitioner had a caste certificate showing him as Hindu Bhil.
(VI) On page 57 of the paper book is the caste certificate dated 17.06.1980 showing the petitioner's father belonging to Hindu Bhil community.
4.3 Mr. Trivedi would therefore taking support of these documents, submit that the caste certificate of these relatives/family members of the petitioner have not been cancelled and therefore there is no reason based on which the caste certificate vide the impugned order should have been Page 7 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT cancelled.
5. Mr. Utkarsh Sharma, learned Assistant Government Pleader extensively relied on the affidavit-in-reply and supported the grounds on the basis of which the caste certificate of the petitioner was cancelled. He reiterated the grounds which have been stated in the affidavit-in-reply which read as under:
(i) The caste/sub-caste of the petitioner is "Hindu Bhil Khant" which is identified from the School Leaving Certificate as well as the General Register record maintained by Mahatma Gandhi Vidhya-Mandir High School, Gandhinagar.
(ii) The caste certificate possessed by the petitioner has not been registered in the issuance register of the caste certificate maintained by the office of the Assistant Commissioner (Tribal Development) Ahmedabad. A copy of issuance register from 05.06.2000 till 09.06.2000 is annexed herewith and marked as Annexure-R5 to this reply.
(iii) The "Hindu Bhil" caste certificate possessed by the brother of the petitioner is also not registered in the issuance register of the caste certificate maintained by the office of the Assistant Commissioner (Tribal Development) Ahmedabad.
(iv) The caste/sub-caste of father of the petitioner is also "Hindu Bhil Khant" which is identified from the record of Primary School, Ukhreli as well as general register of S.P. High School, Santrampur.
(v) The Report of the Viginlance Cell states that the entry of Section 73-A dated 04.04.1961 and the entry of 73-AA of the year 1981 has not been mutated in the land revenue record for the land possessed by the father of the petitioner at village Ukhreli. Both the aforesaid entries are been mutated in the land revenue record hold by tribal land owners of Ukhreli village, except khant family/community. Therefore, the Khant families including the family of the petitioner, residing at Village:Ukhreli cannot be considered as member of Page 8 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT Scheduled Tribe."
5.1 Mr. Sharma would submit that the fact that the certificate was not found in the Ahmedabad Commissionerate itself would suggest that the issuance of such certificate was doubtful. He therefore submitted that the order under challenge is in accordance with law and does not deserve to be disturbed.
6. Having considered the submissions made by learned advocates appearing for the respective parties and having gone through the materials on record, especially in context of the oral order dated 18.01.2018 passed in these proceedings, it is borne out that on the first appointment when in the year 2016 i.e. 06.08.2016 the caste certificate of the petitioner was cancelled, the petitioner had approached this Court by filing Special Civil Application No. 14657 of 2016 wherein this Court had categorically directed by remanding the proceedings to grant hearing keeping in mind the documents which were produced by petitioner on record.
6.1 The first major ground on which the petitioner's caste certificate of belonging to the Scheduled Tribe community i.e. Hindu Bhil Khant is rejected, is that the certificate was not found at the Ahmedabad Commissionerate. The findings appear to be contrary to record. Perusal of the caste certificate dated 07.06.2000 will indicate that the caste certificate was issued by the Gandhinagar Office. Be that as it may. It is specifically recorded in the caste certificate that the certificate was issued by the Vigilance Officer, Ahmedabad and Certificate No. 9/91 is so mentioned. It, therefore, goes to show that the order suffers from non-
Page 9 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020C/SCA/676/2018 JUDGMENT consistency of this material fact particularly in view of the fact that it is not even the case of the department that the certificate of 07.06.2000 fraudulent and got up.
6.2 As far as the contention with regard to petitioner's father not possessing revenue records of lands under Section 73A and 73AA of the Land Revenue Code is concerned, albeit not possessing lands recording revenue entries of Sections 73A and 73AA not being produced, perusal of the revenue records at pages 52 and 53 of the paper book fairly indicate that the petitioner's father did possess agricultural lands.
6.4 Thus revenue entries recording the fact that petitioner's father did possess agricultural lands have never been doubted at the hands of the respondent. That the petitioner's father, paternal uncle, brother and sister in succession had certificates showing them as Hindu Bhil Khant and belonging to the Scheduled Tribe have not been faced in scrutiny. These facts unequivocally therefore suggest that the stand of the respondents in cancelling the caste certificate of the petitioner suffers from total non-application of mind.
7. As recorded in the order dated 18.01.2018, when the petitioner placed reliance on certain decisions of this Court, it will be in the fitness of things to deal with those decisions and in respect agree with the view and support following the same. In Special Civil Application No. 6978 of 2013, this Court on 21.09.2017 considered an issue wherein the petitioner before the Court belonged to Darji caste of Hindu Sai Suthar Community. Records were produced to show that he did belong to such a caste. However, the stand of the Page 10 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT respondents therein was that being Sai Suthar which was his community, the petitioner was not entitled to the benefit of his belonging to Darji caste. Considering the findings of the Scrutiny Committee and the grounds impugned in that case which are evident from para 5 onwards, the Court quashed the order of the Scrutiny Committee. Para 5, 6 & 6.1 of this order read as under:
"5. One of the grounds of the petitioner is that the impugned order passed by the Scrutiny committee was in breach of principles of natural justice as several relevant documents listed in para-7 of the petition which had bearing on the decision of the committee, were not supplied to the petitioner, though were relied on by the Scrutiny Committee. Since the conclusion was drawn by the committee on the basis of the said documents that the petitioners community Sai Suthar was not entitled to be recognized as SEBC, on the ground of non- compliance of the principles of natural justice by not providing the relevant documents alone, the impugned order is liable to be set aside. Furthermore, it is pertinent that the petitioner belongs to Darji caste and it has been so stated in his School Leaving Certificate No.4799 dated 3-7- 1989, as well as in the School Leaving Certificate of his father bearing No.11492 dated 20-8-1997. Therefore only the Certificate belonging to Sai Suthar was issued by Visha Gujarat Sai Suthar Samaj, Ahmedabad bearing No.7365 as authorized by the Government Circular dated 9-6-1997. These documents were considered by the certificate issuing authority and the Social Welfare Officer and the certificate dated 21.08.1997 was issued. It may be next stated that even when the question was raised about the petitioners belonging to SEBC Category at the time of his appointment as Vidya Sahayak the State Government specifically stated that the G.R. Dated 9-6-1997 was operative and the petitioner should be given benefit of the same, and thereafter only the appointment was given to the petitioner. It is difficult to comprehend and accept Page 11 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT that how subsequently the respondent No.2 Scrutiny Committee could take a different view and hold a different view and take a stand that the petitioner was not belonging to the Sai Suthar caste.
5.1 It is to be further observed and held that when the State Government itself issued Circular dated 9-6-1997 that the Certificate issued by Visha Gujarat Sai Suthar Samaj, Ahmedabad shall be considered as one of the proofs for issuing the caste certificate and accordingly Visha Gujarat Sai Suthar Samaj, Ahmedabad had issued such certificate in favour of the petitioner and when on the basis of the said documents the respondent no.3 issued the SEBC Caste Certificate to the petitioner, the respondent no.2/Scrutiny Committee cannot take a different view without any other relevant material. No such other relevant material was on record. .
6. For the aforesaid reasons, it was clear that the impugned order cancelling the caste certificate of the petitioner came to be passed by ignoring the relevant material and evidence. The Scrutiny Committee not only proceeded on the wrong footing and on irrelevant consideration and in breach of principles of natural justice, but failed to consider the documents which clearly establish that the caste certificate of the petitioner was rightly issued. When the relevant evidence is ignored, the decision becomes perverse."
7.1 Similarly in Special Civil Application No. 15091 of 2013 by a decision dated 21.07.2017, the question before the Court was whether the sub caste Hindu Bhil could be pointed as Scheduled Tribe community. The Court on appreciation of facts on record and on the basis of voluminous records similar to the ones before this Court in the present petition namely revenue records etc held as under:
Page 12 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020C/SCA/676/2018 JUDGMENT "5. It is an admitted position that before the respondent authorities, the petitioner produced following voluminous documents to establish her case that she belonged to Scheduled Tribe-(i) Revenue Record Village Form No.6 (Record of Rights) Mutation Entry No.522 dated 22nd January 1984, certified by the Mamlatdar, Santrampur on 31st March, 1984, under Section 73-AA of the Bombay Land Revenue Code, 1879, with regard to the land in the name of the petitioner's father Saybabhai Sardarbhai Khant and other family members; (ii) caste certificate dated 28th June, 1996 issued by the Mamlatdar, Santrampur in favour of the petitioner's father Khant Saybabhai Sardarbhai; (iii) caste certificate dated 03rd January, 1986 issued by the Mamlatdar, Santrampur in favour of the petitioner's elder brotherKhant Nareshkumar Saybabhai; (iv) school leaving certificate of the petitioner's elder brotherKhant Nareshkumar Saybabhai; (v) caste certificate No.1135 dated 11th August, 1986 issued by the District Social Welfare Officer, Panchmahals, Godhra in favour of the petitioner's younger sisterKhant Bakulaben Saybabhai; (vi) school leaving certificate of the petitioner's younger sisterKhant Bakulaben Saybabhai and (vii) letter of respondent No.2 dated 08th February, 2007 whereby it was confirmed that cousin brother of the petitioner was given Scheduled Tribe Certificate No.943 dated 05th August, 1982 which was confirmed by the State Scrutiny Committee on 05th December, 2006.
5.1 Having considered the record of the petition, the material produced and the documents relied on and further carefully going through the impugned order, it can be clearly seen that respondent No.2 and the other authority of the Scrutiny Committee who dealt with the question of caste certificate of the petitioner, were swayed away with the aspect that in the school record of the petitioner the sub- caste was mentioned as Hindu Khant. The ' Khant' was admittedly surname or sub-caste. The respondents misdirected themselves in banking Page 13 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT upon the school record entry of the petitioner as the Khant was surname so recorded. The caste of the petitioner could not have been taken on the basis of surname of the petitioner. The Joint Secretary, Labour and Social Welfare Department, issued Notification dated 26th June, 1978 in which also it was clarified and observed that there was no nexus between the caste and the surname, that the caste does not change, though surname may be different.
5.2 Furthermore, there was a clinching evidence in the nature of the caste certificate of the brothers and sisters of the petitioner who are recognised as belonging to Scheduled Tribe. There is no doubt that the petitioner belonging to Hindu Bhil. The caste Hindu Bhil is recognised as Scheduled Tribe as per Entry 74 in the Scheduled Tribe and Scheduled Caste Order, 1976. This material aspect could not have been disregarded.
6. From the above discussion it is clear that there are overwhelming evidence which shows the petitioner to be the member of Scheduled Tribe. This material aspect and decisive documents were plainly overlooked by respondent No.2 in arriving at a conclusion that the certificate of caste granted to the petitioner by the competent authority in the year 1986 was wrong. The authority mistook the surname with caste status and applied criteria of surname to hold that it was not Schedule Caste, eventhough it was undisputed that the petitioner was Hindu Bhil which was Scheduled Tribe. A decision arrived at by ignoring tenable and acceptable evidence and by relying upon irrelevant considerations could be characterised as perverse. A perverse decision represents an arbitrary approach. Perversity is a worst form of irrationality which renders the decision vitiated as rendered in ignorance of relevant and germane material."
7.2 The Court thus specifically held that the authorities mistook the surname with the caste status and applied the criteria of surname to hold that it was not Scheduled Caste Page 14 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT even though the petitioner was Hindu Bhil which was Scheduled Tribe.
7.4 In context of the findings of authorities with regard to Sections 73A and 73AA of the Code, this Court in case of Damor Narmadaben Pujabhai vs. State of Gujarat [2017 JX(Guj) 730] considering the issue with regard to entry under Sections 73A and 73AA of the Code and the documents on record held as under:
"5. Amongst the submission that respondent No.4 disregarded the material aspects and documents which established the caste of the petitioner as Scheduled Tribe, learned advocate for the petitioner Mr.K.B. Pujara highlighted from paragraph 12 of the petition that the authority relied on documents, notifications and circulars to come to a conclusion against the petitioner, however copy of none of them were supplied to the petitioner and petitioner did not have opportunity to meet with them. Not only that this omission on part of respondent No.4 constituted breach of natural justice rendering the order passed by respondent No.4 liable to be set aside on that ground alone, all the more, when the facts on record were carefully gone through, and the impugned order was considered, it could be noticed that respondent No.4 had disregarded several decisive documents and facts.
5.1 When a conclusion is drawn by respondent No.4 that in respect of land of the father of the petitioner entry under Section 73AA of the Bombay Land Revenue Code was not made, the same was not acceptable in asmuch as it is an admitted position that petitioner's father Pujabhai Vechatbhai owned his original land at Village Paniyar and in that respect, entry under Section 73AA under the Code indicating status as Scheduled Tribe of the owner was mentioned. After the submergence of the said land in the Kadana Page 15 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT Dam Project, government allotted another land to the petitioner's father. When the entry in respect of original land at Village Paniyar was on the basis of petitioner's caste as Scheduled Tribe, displacement of the petitioner from the said land in view of submergence of land would not denude the petitioner of the Scheduled Tribe status which was otherwise based on a conclusive proof on an entry under Section 73AA of the Bombay Land Revenue Code entered for the land at Village Paniyar.
5.2 The Vigilance Officer (Tribal Department), Panchmahal, was directed to undertake an inquiry to verify the facts regarding petitioner's caste by letter dated 07th July, 2006. The Vigilance Officer made an inquiry and verified the facts, upon which a report came to be submitted to the Deputy Collector, Tribal Development, on 23rd March, 2007. In his report, the Vigilance Officer had relied on the following documents - (i) record of Paniyar Primary School where the petitioner had taken primary education; (ii) letter dated 19th January, 2004 issued by the Deputy Collector, Land Acquisition and Rehabilitation, Godhra, wherein the father of the petitioner Mr.Pujabhai Vechatbhai Damor was recorded as belonging to scheduled tribe in respect of the land at Paniyar and in the entry of his original native place; (iii) Pedhinama of Damor Pujabhai Vechatbhai wherein also the name of the petitioner was stated; (iv) 7X12 Form wherein entry of Section 73AA of the Bombay Land Revenue Code - (Restriction on Transfer of Occupancy of Tribals to Tribals or Non-Tribals) was duly entered. The aforesaid report of the Vigilance Officer was before the authorities who considered the question of caste status of the petitioner, however the report was plainly ignored. Thus there was a non-consideration of material evidence.
5.3 Significantly, the authority passing the impugned order unequivocally recorded on the basis of the report of the Vigilance Officer mentioned above, that the sub-caste of the petitioner was Hindu Bhil. Once the sub-caste of the petitioner was established to be Hindu Bhil, it Page 16 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT is not a disputed position that Scheduled Caste and Scheduled Tribe Order, 1976 contains Entry no.74 and mentions Bhil recognising it as Scheduled Tribe. This aspect coupled with the fact that in the school leaving certificate issued to the elder brother of the petitioner, Hindu Bhil was mentioned and he was given Scheduled Tribe certificate. Therefore, when elder brother himself was recognised as Scheduled Tribe, there was no reason for not recognising the petitioner as Scheduled Tribe.
5.4 It appears that the respondent authorities misdirected themselves on the basis that school record mentioned the surname Damor. Not only that 'Damor' was written after the group of words 'Hindu Bhil' in the school leaving certificate of the petitioner, as already noted, the Hindu Bhil community was recognised as Scheduled Tribe. A particular community may be known with different surnames. The authorities mistook the surname with the caste status and denied the petitioner the status of Scheduled Tribe. Thus though the petitioner was Hind Bhil which was falling under Scheduled Tribe, the certificates were cancelled.
6. The impugned decision was thus a decision which was arrived at by ignoring legally tenable and acceptable evidence which had decisive effect on the case of the petitioner. Irrelevant considerations were gone into. When a decision is rested on irrelevant considerations, it is characterised as perverse."
8. It is therefore evident from the records placed before this Court in this petition that there was legally tenable evidence produced on record on behalf of the petitioner to show that the petitioner belonged to Hindu Bhil Khant community. This evidence was acceptable and ought to have been taken into consideration by the authorities in accepting the stand of the petitioner that he belonged to Hindu Bhil Page 17 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020 C/SCA/676/2018 JUDGMENT Khant community and the decision therefore cancelling the certificate by the impugned communication dated 15.12.2017 is required to be quashed and set aside.
9. Accordingly, the order dated 15.12.2017 is quashed and set aside. Petition is allowed accordingly. Rule is made absolute accordingly.
sd/-
(BIREN VAISHNAV, J) DIVYA Page 18 of 18 Downloaded on : Mon Jun 15 09:13:31 IST 2020