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Madhya Pradesh High Court

Ku. Shirin Sharif (Minor) Through ... vs General Administration Department on 10 December, 2021

Author: Sujoy Paul

Bench: Sujoy Paul

Writ Petition No.15595/2020                                                       1
Writ Petition No.15605/2020


   HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE

                       Writ Petition No.15595/2020
 Kumari Shirin Sharif (Minor) & Others v/s The State of Madhya Pradesh & Others

                       Writ Petition No.15605/2020
 Kumari Shifa Patel (Minor) & Another v/s The State of Madhya Pradesh & Others
Indore, dated 10.12.2021
           Shri L.C. Patne, learned counsel for the petitioners.
           Shri Amit Raj, learned Panel Lawyer for the respondents
/ State.
           Regard being had to the similitude of the singular
question involved, on the joint request of the parties, matters are
analogously heard and decided by this common order. Facts are
taken from W.P. No.15595/2020.
                                  ORDER

In this petition filed under Article 226 of the Constitution of India, the petitioners have prayed for following reliefs:-

(a) to call for the relevant record of the case from the respondents;

(b) to quash the impugned orders dated 11.06.2008 (Annexure-P/7), passed by Respondent No.6, appellate order dated 3.12.2018 (Annexure-P/8) passed by Respondent No.5 and order dated 27.02.2019 (Annexure-

P/11) passed by Respondent No.4, by a writ of Certiorari or nay other appropriate writ, direction or order;

(c) to command the respondents to issue permanent caste certificate of Scheduled Tribe category to the petitioners and to all consequential benefits by a writ of Mandamus or any other appropriate writ, direction or Writ Petition No.15595/2020 2 Writ Petition No.15605/2020 order;

        (d)      to allow this petition with costs;
        (e)      to pass such order order(s) as may be deemed

appropriate in the facts and circumstances of the case, to grant relief to the petitioners.

02. The petitioners are aggrieved by the order dated 11.06.2018, whereby, the Sub Divisional Officer (SDO) / respondent No.6 rejected their application for issuance of caste certificate of Schedule Tribe (ST category) as 'Munda Caste' to which petitioners belong.

03. Learned counsel for the petitioners by taking this Court to Constitution (Schedule Tribes) Order, 1950 (Part-III) and Rules and Order under the Constitution submits that the relevant part namely part - VIII which relates to State of Madhya Pradesh contains an entry relating to 'Munda' (ST) at item No.33. No geographical restriction is mentioned as against this entry relating to 'Munda'. Whenever such restriction exists, it is specifically mentioned which is evident from Entry No.40, which relates to 'Paridhi' Caste. This Entry No.33 was never modified, annulled or cancelled by the competent authority. It is further argued that the petitioners' father, grandfather and forefather belong to the same community. Accordingly, caste certificate was issued to petitioners' grandfather on 08.06.1983 showing him belonging to Schedule Tribe (Munda Community). Similarly, another caste certificate was issued in favour of petitioners' father on 20.07.1991 by the Principal and by other authorities which are cumulatively filed as Annexure-P/5.

04. The petitioners submitted appropriate applications before the competent authority i.e. SDO, Barwah for issuance of caste certificate. The said applications were rejected by order dated 11.06.2018 (Annexure-P/7). Aggrieved, the petitioners preferred an appeal before the Collector which came to be dismissed by order dated 03.12.2018 (Anneuxre-P/8).

05. Shri Patne, learned counsel for the petitioners by criticizing the order dated 11.06.2018 (Annexure-P/7) urged that whether or not 'Munda' Community resides in a relevant sub- division, caste certificate cannot be denied on this score considering the fact that 'Munda' Community is recognized as ST Category in the entire State of Madhya Pradesh. Criticizing the impugned order of learned Collector, Shri Patne submits that he rejected the applications on twin counts. Firstly, the learned Collector relied on some study material collected behind the back of the petitioners and petitioners were never confronted with the said adverse material. The said adverse material even otherwise could not have been a reason for rejection of the claim. Curtains on this issue were drawn by the Division Bench of this Court in 2014 (2) M.P.L.J. 239 (The State of Madhya Pradesh & Others v/s Dule Singh Solanki & Others). The similar study on the strength of which, Collector rejected the application could not find favour with the Division Bench and Presidential Order was directed to be given preference and credence.

06. The second reason given by learned Collector is that 'Munda' category in muslim community in Madhya Pradesh is covered by notification dated 23.04.1997. By placing reliance on the said notification (Annexure P/15), Shri Patne submits that the 'Munda' muslim community is nowhere mentioned in the said notification. Reference is made to the circular dated 22.05.2003 (Annexure P/18) to contend that the State government made it clear that in Madhya Pradesh, the follower of Islam may also belong to 'Munda' community and religion cannot be a reason to decline the caste certificate to 'Munda' community.

07. Per contra, Shri Amit Raj, learned counsel for respondents supported the impugned orders. He submits that SDO and Collector have not committed any error whatsoever while declining the issuance of caste certificate. Shri Raj placed reliance on executive instruction 16.03.2005 (Annexure R/3) to contend that 'Munda' scheduled tribe community resides mainly in different districts of State of Chhattisgarh. The persons practicing muslim faith cannot claim themselves to be belonging to 'Munda community'.

08. Parties confined their arguments to the extent indicated above.

09. I have heard the parties at length and perused the record.

10. It is not in dispute that presidential notification contains the Entry No.33 as Schedule Tribe category namely 'Munda' in Madhya Pradesh. This presidential notification is still in vogue.

By way of executive instructions or even by way of any legislation, the presidential notification cannot be superseded. The Apex Court made it clear in Bir Singh Vs. Delhi Jal Board & Ors. (2018) 10 SCC 312. Thus, the executive instructions on the strength of which the prayer was declined pale into significance in view of presidential notification.

11. The next reason assigned by learned Collector is based on some opinion of tribal development institute. This question came up for consideration before Division Bench in Dule Singh Solanki (supra). This Court held as under:-

"9. This Court has carefully gone through the Presidential Order as well as the letter issued by the Scheduled Tribe Research Development Institute, Bhopal and the aforesaid letter dated 26-11-2007 also makes it very clear that persons belong to Mogia are members of Scheduled Tribe as in Presidential Order Mogia is mentioned at Sr. No. 16. Heavy reliance has been placed upon some research conducted by the Tribal Development Institute and this Court is of the considered opinion that the research conducted by the Tribal Development Institute will certainly not supersede the Presidential Order, 1950. A detailed and exhaustive enquiry took place in the matter and the revenue authorities have arrived at a conclusion that the sole respondent is a member of Mogia Tribe. The affinity test conducted in the matter establishes that the sole respondent Dule Singh Solanki is a member of Mogia Tribe. A similar situation has been dealt with in the case of Anand v. Committee for Scrutiny and Verification of Tribes Claims, (2012) 1 SCC (L&S) 43 and the Apex Court in paragraphs 20 to 26 has held under:--

"20. The rules further stipulate that the Vigilance Officer shall personally verify and collect all the facts about the social status claimed by the applicant or his parents or guardians, as the case may be. He is also required to examine the parents or the guardians or the applicant for the purpose of verification of their tribe. It is evident that the scope of enquiry by the Vigilance Officer is broad-based and is not confined only to the verification of documents filed by the applicant with Writ Petition No.15595/2020 6 Writ Petition No.15605/2020 the application or the disclosures made therein. Obviously, the enquiry, supposed to be conducted by the Vigilance Officer, would include the affinity test of the applicant to a particular tribe to which he claims to belong. In other words, an enquiry into the kinship and affinity of the applicant to a particular Scheduled Tribe is not alien to the scheme of the Ac and the Rules. In fact, it is relevant and germane to the determination of social status of an applicant.

21. We are of the view that for the purpose of examining the caste claim under the Rules, the following observations of this Court in Kumari Madhuri Patil (supra), still hold the field:

"13.... 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 proforma, 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 concerned etc."

22. It is manifest from the afore-extracted paragraph that the genuineness of a caste claim has to be considered not only on a thorough examination of the documents submitted in support of the claim but also on the affinity test, which would include the anthropological and ethnological traits etc., of the applicant. However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim. Nevertheless, we feel that the following broad parameters could be kept in view while dealing with a caste claim:

"(i) While dealing with documentary evidence, greater reliance may be placed on pre-Independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-Independence documents. In case the applicant is the first generation ever Writ Petition No.15595/2020 7 Writ Petition No.15605/2020 to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant;

(ii) While applying the affinity test, which focuses on the ethnological connections with the scheduled tribe, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor. However, with the migrations, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a scheduled tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that his present traits do not match his tribes' peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim."

23. Needless to add that the burden of proving the caste claim is upon the applicant. He has to produce all the requisite documents in support of his claim. The Caste Scrutiny Committee merely performs the role of verification of the claim and therefore, can only scrutinise the documents and material produced by the applicant. In case, the material produced by the applicant does not prove his claim, the Committee cannot gather evidence on its own to prove or disprove his claim.

24. Having examined the present case on the touchstone of the aforesaid broad parameters, we are of the opinion that the claim of the appellant has not been examined properly. We feel that the documentary evidence produced by the appellant in support of his claim had been lightly brushed aside by the Vigilance Officer as also by the Caste Scrutiny Committee. Insofar as the High Court is concerned, it has rejected the claim solely on the basis of the affinity test. It is pertinent to note that some of these documents date back to the pre-Independence era, issued to appellant's grandfather and thus, hold great probative value as there can be no reason for suppression of facts to claim a non-existent benefit to the 'Halbi' Scheduled Tribe at that point of time.

25. From the documents produced by the appellant, it appears that his near paternal relatives had been regarded as belonging to the 'Halbi' Scheduled Tribe. The Vigilance Officer's report does not indicate that the documents produced by the appellant in support of his claim are false. It merely refers to the comments made by the Head Master with reference to the school records of appellant's father's maternal brother and his aunt, which had been alleged to be tampered with, to change the entry from Koshti Halba to Halba and nothing more. Neither the Head Master was examined, nor any further enquiry was conducted to verify the veracity of Head Master's statement. It is of some importance to note at this juncture that in similar cases, involving appellant's first cousin and his paternal uncle, the High Court, while observing non- application of mind by the Caste Scrutiny Committee, had decided a similar claim in their favour.

26. We are convinced that the documentary evidence produced by the appellant was not examined and appreciated in its proper perspective and the High Court laid undue stress on the affinity test. Thus, the decision of the Caste Scrutiny Committee to cancel and confiscate the caste certificate as well as the decision of the High Court, affirming the said decision is untenable. We are, therefore, of the opinion that the claim of the appellant deserves to be re-examined by the Caste Scrutiny Committee. For the view we have taken on facts in hand, we deem it unnecessary to refer to the decisions cited at the bar."

10. In the present case, keeping in view the judgment delivered by the Apex Court, the revenue authorities have verified the genuineness of the caste claim on the basis of documents and affinity test, and the claim has been turned Writ Petition No.15595/2020 9 Writ Petition No.15605/2020 down in a mechanical manner by the Sub Divisional Officer based upon some research conducted by the Tribal Development Institute and therefore, in light of the judgment delivered by the Apex Court as the revenue authorities have held that the petitioner is a member of Mogia Tribe, this Court does not find any reason to interfere with the order passed by the learned Single Judge. Not only this, a similar situation arose earlier also and the caste certificates were being denied to the member of Mogia Tribe certifying them to be a member of Scheduled Tribe. A circular was issued by the Naib Tehsildar, Rajgarh on 9-8-2007 stating therein that Mogia Community should be treated as Scheduled Caste and not as Scheduled Tribe. The Division Bench of this Court vide order dated 23-1- 2008 has disposed of the writ petition by holding that Mogia Community in the State of Madhya Pradesh will be treated as Scheduled Tribe. The order passed by the Division Bench of this Court on 23-1-2008 in the case of Krishanpal Singh v. State of M.P., W.P. No. 6762/2007 (PIL) reads as under:--

"The petitioner who claims to be member of Mogia community has filed this writ petition as a Public Interest Litigation contending that by the Constitution Scheduled Tribes) Order, 1950, Mogia community has been included in the entry '16' of the list relating to Madhya Pradesh as a Scheduled Tribe but by a circular dated 9-8-2007 issued by the Naib Tahsiladar, Pachore, District Rajgarh, all concerned authorities under him have been informed that 'Mogia' community has been treated as a Scheduled Caste and not a Scheduled Tribe. The petitioner has accordingly prayed that the said circular dated 9-8-2007 issued by the Naib Tahsiladar, Pachore, District, Rajgarh be quashed.

We find that the in the Constitution (Scheduled Castes) Order, 1950, as amended, in the list relating to Madhya Pradesh, in entry '39' the community 'Moghia' has been included as a Scheduled Caste and it is perhaps for this reason that the Naib Tahsildar, Pachore has issued the circular dated 9-8-2007 saying that 'Mogia' community should be treated as Scheduled Caste and not Scheduled Tribe. But the circular has led to some confusion because of the fact that while 'Mogia' community has been included as Scheduled Tribe in the list of Madhya Pradesh appended to Constitution (Scheduled Tribes) Order, 1950, the community 'Moghia' has been included as a Writ Petition No.15595/2020 10 Writ Petition No.15605/2020 Scheduled Cast in the list relating to Madhya Pradesh appended to Constitution (Scheduled Castes) Order, 1950.

We dispose of this writ petition with a direction that the Naib Tahsiladar, Pachore, District, Rajgarh will clarify that it is the 'Moghia' community in Madhya Pradesh which will be treated as Scheduled Caste, whereas the 'Mogia' community in Madhya Pradesh will be treated as Scheduled Tribe.

With the aforesaid direction, the writ petition is disposed of. If the petitioner is aggrieved by any particular order passed against him, he may move the appropriate authority."

11. The aforesaid order of the Division Bench has been passed after dealing with the Constitution (Scheduled Tribes) Order, 1950 and it has held that Mogia community be treated as Scheduled Tribe and therefore, once it has been established that that petitioner is a member of Mogia community and is a resident of Madhya Pradesh, he has to be treated as a Scheduled Tribe and not as a Scheduled Caste, and therefore, this Court is of the considered opinion that no illegality/irregularity or legal infirmity is in existence in the order passed by the learned Single Judge dated 24-7-2013, hence, the writ appeal preferred by the appellants (State of Madhya Pradesh) being devoid of merits and substance, is accordingly dismissed."

[Emphasis Supplied]

12. The State Government unsuccessfully challenged this order in SLP No.30433-30435/2014 which was dismissed on 23.11.2015 (Annexure P/10). In the light of this division bench order, the order of Collector cannot sustain judicial scrutiny.

13. The order of SDO is liable to be interfered with because he declined to issue the caste certificate on the ground that people belonging to said caste do not reside in the sub division. This reason is also bad in law because 'Munda' community is recognized as scheduled tribe community for the entire Madhya Pradesh and not for a particular sub division.

14. No territorial restrictions are imposed for 'Munda' community.

15. Neither SDO nor Collector considered the fact that petitioners' forefathers, grandfather and father were enjoying scheduled tribe category status in 'Munda' community. The circular of government dated 22/5/2003 (Annexure P/18) clarifying this aspect was also not considered. The relevant portion reads as under:-

Ø-&,Q 7&6@2003@25&5 Hkksiky fnukad 22-05-2003 izfr] leLr ftyk dysDVj] e/;izns'k fo"k;%& eq.Mk tutkfr ds lnL;ksa dks tkfr izek.k i= tkjh djus ds laca/k esa fn'kk&funsZ'kA e/;izns'k iquxZBu vf/kfu;e 2000 dh vuqlwph&4 ds vuqlkj e/;izns'k jkT; ds fy;s eq.Mk ¼MUNDA½ tkfr dks vuqlwfpr tutkfr ekU; fd;k x;k gSA 2@ jkT; vYila[;d vk;ksx }kjk 'kklu dh tkudkjh es ;g rF; ik;k x;k gS fd izn's k ds dbZ ftyks esa eq.Mk tkfr ds izek.k i= bl dkj.k tkjh ugh fd;s tk jgs fd vkosnd bLyke /keZ dks ekuus okys gSA ;g Li"V fd;k tkrk gS fd vuqlwfpr tutkfr dk izek.k i= tkjh fd;s tkus esa /keZ dk dksbZ ca/ku ugh gSA bl fLFkfr dks Hkkjr ljdkj tutkfr dk;Z ea=ky; ubZ fnYyh ds layXu i= Øekad 12018@14@2001&Vh ¼vkj,y½ fnukad 20- 03-2003 }kjk Hkh Li"V fd;k x;k gSA 3@ 'kklu dh vis{kk gS fd fdlh Hkh ik=rk j[kus okys vkosnd dk rFkk 'kh?kz tutkfr i= tkjh fd;s tk;sA vikyu dh n'kk esa lacaf/kr vf/kdkfj;ksa ds fo:) dk;Zokgh dh tkosA layXu%& ea=ky; vkfne tkfr ekeys Hkkjr ljdkj dk i=A ¼MkW HkkxhjFk izlkn½ izeq[k lfpo vkfne tkfr vuqlwfpr tkfr dY;k.k Hkksiky] fnukad 22-05-2003 [Emphasis Supplied] Writ Petition No.15595/2020 12 Writ Petition No.15605/2020

16. In view of foregoing analysis, the impugned orders cannot sustain judicial scrutiny. Resultantly, the order of SDO dated 11.06.2018, 03.12.2018, 22.03.2019 and order of Collector dated 27.02.2019 are set aside. The concerned SDO is directed to consider the claim of the petitioners for grant of Scheduled Tribe certificate of Munda Community if they are otherwise eligible and issue appropriate certificates in accordance with law expeditiously preferably within two weeks.

The petitions are allowed.

(SUJOY PAUL) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2021.12.11 13:26:08 +05'30'