Bombay High Court
Vaibhavi Sharad Agalawe Minor Through ... vs The State Of Maharashtra And Others on 27 June, 2018
Author: R.M. Borde
Bench: R.M.Borde, A.M. Dhavale
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12778 Of 2017
Vaibhavi d/o Sharad Agalawe
age 17 years, (Minor)
occ. education
represented through her natural Guardian
i.e. father Shri Sharad Parshuram Agalawe,
age 52 years, occ. service
r/o Sagar Vihar, Phase -2,
near Dnyan Sampada English Medium School
Sevedi, Ahmednagar
Tq. & Dist. Ahmednagar Petitioner
Versus
01 State of Maharashtra
Through Principal Secretary
Tribal Development Department
Mantralaya, Mumbai 32.
02 Scheduled Tribe Certificate
Scrutiny Committee,
Nashik
through its Member Secretary
03. Commissioner and Competent Authority
State CET Cell,
Maharashtra State, Mumbai
CET Cell (DMER), Opp. Govt. Dental College
St. George's Hospital Campus
Fort, Mumbai 400 001.
04 Nair Hospital Dental College,
A.S. Nair Road, Mumbai
Through its Dean
05 Sub-Divisional Officer
Shrirampur
Dist. Ahmednagar Respondents
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Mr. M.S. Deshmukh, advocate for petitioner.
Mrs. M.A.Deshpande, A.G.P. for respondents 1, 2 and 5.
Mr. M.D. Narwadkar, advocate for respondent no. 3.
Respondent no. 4 served.
CORAM : R.M.BORDE &
A.M. DHAVALE, JJ
RESERVED ON : 19th JUNE, 2018.
PRONOUNCED ON : 27th JUNE, 2018.
ORDER :( Per R.M. Borde, J.)
1. Rule. Rule made returnable forthwith.
2. Heard finally at admission stage, with the consent of learned counsel for the respective parties.
3. Petitioner is praying for quashment of the order passed by respondent no. 2 - Scrutiny Committee Nashik, dated 27.10.2017, directing invalidation of the tribe claim of petitioner as belonging to 'Koli Mahadev' Scheduled Tribe. Petitioner is also praying for direction to respondent - Scrutiny Committee to forthwith issue certificate of validity in the prescribed proforma within stipulated period.
4. Petitioner claims to be belonging to 'Koli Mahadev', Scheduled Tribe and is in receipt of tribe certificate issued by the Sub Divisional Officer, Srirampur, District Ahmednagar in prescribed proforma. Since petitioner is prosecuting studies and is in need of validity certificate for pursuing professional course, she forwarded the proposal for verification of the tribe certificate to respondent no.2-Scrutiny Committee. The Scrutiny Committee ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 00:26:34 ::: {3} wp12778-17.odt directed Vigilance cell to conduct enquiry and submit report and accordingly the Vigilance Cell, after conducting necessary enquiry, submitted the report on 23.08.2017, copy of which was served on the petitioner on 23.08.2017. Petitioner was called upon to attend personal hearing on 24.08.2017. Petitioner argued the matter before the Scrutiny Committee and tendered documentary evidence including copies of validity certificates issued to as many as eight blood relations of the petitioners including (i) her father Sharad, (ii) real aunt Ashvini, (iii) first degree uncle Sanjay, (iv) first degree uncle Vijay (real cousin of father), (v) first degree uncle Bharat (cousin brother of father) (vi) first degree uncle Arun (real cousin of father), (vii) second degree cousin Dhananjay (son of real cousin of father), (viii) second degree cousin sister Sampada (daughter of real cousin of father). The Scrutiny Committee however, was not satisfied as regards the evidence tendered by petitioner and, relying upon the genealogy recorded in the matter of one Kalpana Dnyandeo Aaglave, came to the conclusion that there is some discrepancy in the relations described by petitioner and said Kalpana and as such, proceeded to reject the claim of petitioner by order dated 01.09.2017.
5. Being aggrieved by the order passed by the Scrutiny Committee, petitioner preferred writ petition bearing no. 10337 of 2017 before this Court. This Court, by judgment and order dated 27.09.2017 allowed the petition and quashed and set aside the order of invalidation dated 01.09.2017 and remitted the matter back to the Scrutiny Committee for rendering decision in accordance with law before 28.10.2017. The Scrutiny Committee, on second occasion, again referred the matter for Vigilance Cell ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 00:26:34 ::: {4} wp12778-17.odt enquiry and on receipt of Vigilance Cell report for the second time, proceeded to extend an opportunity of hearing to petitioner and thereupon rendered decision on 23.10.2017 directing invalidation of the tribe certificate issued to the petitioner and further directed confiscation and cancellation of the said certificate.
6. Petitioner vehemently contends that since the father, real aunt and first cousin uncle of petitioner have been issued validity certificates by the Scrutiny Committee in observance of the procedure prescribed in law, there was no reason for the Scrutiny Committee to take a different view. It is contended that the genealogy recorded in the matter of Kalpana, which matter is still pending for consideration before the Scrutiny Committee, cannot form basis for holding that the relationship described by petitioner is erroneous or false. It is however, contended that while validating the tribe certificate issued to the father of petitioner and her real aunt, the Scrutiny Committee has recorded a reasoned order and after getting satisfied as regards the documentary evidence, traits, characteristics and anthropological factors, the Scrutiny Committee proceeded to direct issuance of validity certificate. There was no reason for the Scrutiny Committee to take a different view. It has not been observed that the father or aunt of the petitioner or any other blood relation were instrumental in securing validity certificate by misleading the Committee or that they have placed reliance on any fraudulent document. In these circumstances, it would not be open for the Scrutiny Committee to take a different view and direct invalidation of the tribe certificate.
7. It must be recorded that following 8 near relations including ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 00:26:34 ::: {5} wp12778-17.odt the blood relations of petitioner are in receipt of validity certificate issued by the Scrutiny Committee :
(i) Father - Sharad Parashram Agalawe
(ii) Real Aunt - Ashvini Parashram Agalawe
(iii) 1st degree uncle (real cousin of father) Sanjay
(iv) 1st degree uncle (real cousin of father) Vijay Dashrath
Agalawe
(v) 1st degree uncle (real cousin of father) Bharat Dasram
Agalawe
(vi) 1st degree uncle (real cousin of father) Arun Macchindra
Agalawe
(vii) 2nd degree cousin (son of real cousin of father) Dhananjay
Bharat Agalawe
(viii) 2nd degree cousin sister (daughter of real cousin of father) Sampat Bharat Agalawe
8. The genealogy that has been recorded by the aunt of petitioner by name Asvini is as recorded below :
oa'kkoG | jkoth vkxykos | /kksaMhck ______________________________________________ | | | | n'kjFk ij'kqjke ukenso efPNanz ________ ______________ | _______ | | | | | | | Hkjr fot; fot;k 'kjn vf'ouh lat; v#.k jktsan ___|___ ¼Lor%½ | | oSHkoh oS ".koh ¼Hkkph½ Whereas the father of the petitioner, while prosecuting his ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 00:26:34 ::: {6} wp12778-17.odt claim, has also recorded the same genealogy in his evidence. The only difference is that apart from the branch of Dhondiba, the father of the petitioner has also elaborately described the branches of Ahilaji, Kashinath and Raghunath, real brothers of Dhondiba. The elaborate genealogy produced on record in the file of father of the petitioner is as recorded below :
oa'kkoG | jkoth vkxykos ____________________________________________________ | | | | jaxukFk dkf'kukFk vfgykth /kksafMck | | | _____________________________ Qfdjpan Hkkxor j[kekth | | | | | ____ ________ _________ n'kjFk ij'kqjke ukenso efPNanz panzHkkxk | | | | | | | | _____ _____ | _____ | jktw nknk y{e.k jke Hkjr ckcklks jk?kq uoukFk | | | | lat; | | lq;ZHkku esus Hkjr fot; 'kjn vf'ouh v#.k jktsanz
9. The Scrutiny Committee, however has placed reliance on the family tree placed on record by the candidate by name Kalpana Dnyandeo Agalawe. The family tree has been reproduced in the order and finds place on page no. 109 of the paper book compilation. It is not a matter of dispute that the proposal of Kalpana is still pending consideration before the Scrutiny Committee. It has not been established that the genealogy furnished by Kalapna depicts a true picture. Though the genealogy records a branch of Dhondiba whose son is Namdeo and the son of Namdeo is recorded as Sanjay, Kalpana has not proceeded to elaborately describe the family tree of Dhondiba and other brothers. If the record in respect of validation produced in the file of Sharad and Ashvini is perused, both describe the family tree in different manner.
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10. Petitioner was not confronted with the record in the matter of Kalpana. The Scrutiny Committee on its own proceeded to call the aforesaid record and placed reliance on the genealogy produced by Kalpana and, on that basis, turned down the case of petitioner. Infact, it is necessary for the Scrutiny Committee to confront Kalpana with the record in the matter of Sharad and Ashvini and other validity holders, however, the Scrutiny Committee appears to have acted in reverse manner. It also must be noted that while directing issuance of validity certificate in favour of Sharad - the father of petitioner and her real aunt Ashvini, the Scrutiny Committee directed enquiry through Vigilance Cell and only after receipt of the Vigilance Cell report, proceeded to pass orders directing issuance of validity certificate in their favour. It also must be recorded that the Scrutiny Committee has passed a speaking order while issuing validity certificate in favour of Sharad and Ashvini. It is not open for the Scrutiny Committee in the instant matter to contend that the decision rendered in the matter of Sharad and Ashvini by the same Scrutiny Committee and the reasons recorded while issuing validity certificates, are incorrect. If at all, the Scrutiny Committee is of the opinion that the validity certificates issued to the blood relations of petitioner cannot be relied upon, it was incumbent upon the Scrutiny Committee to consider as to whether the same blood relations have relied upon the false and fraudulent record or have mislead the Scrutiny Committee. In the event, the Scrutiny Committee proceeds to draw such conclusion, it would have been then logical for the Scrutiny Committee to issue show cause notice to those validity holders who, according to Scrutiny Committee, have obtained validity certificates fraudulently. In the instant matter, the Scrutiny ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 00:26:34 ::: {8} wp12778-17.odt Committee surprisingly has not concluded that the validity certificates secured by Sharad and Ashvini have been so secured by practicing fraud or that for obtaining validity certificates, they have mislead the Committee. It is not open for the Scrutiny Committee, without recording such finding, to brush aside said evidence and reject the claim of petitioner. It was also not open for the Scrutiny Committee to place reliance on the record furnished by Kalpana, whose claim is yet to be scrutinised. So far as inconsistency in the school record of Sharad is concerned, the same has been explained by Sharad and such reference finds place in the vigilance enquiry report in the matter of Sharad and, inspite of such entry in the school record, the Scrutiny Committee has proceeded to grant validity certificate in favour of Sharad. An isolated entry in the school record of Sharad, who is in receipt of validity certificate, cannot form a basis for turning down the claim of petitioner. Record in the matter of Sanjay, real uncle of petitioner is also produced and, we find that the evidence produced by Sanjay is consistent with the case of petitioner so also the genealogy placed by Sanjay on record does corroborate with the family tree recorded in the matter of petitioner.
11. In the facts and circumstances, reliance can be conveniently placed on the reported judgment of Division Bench of this Court in the matter of Apoorva d/o Vinay Nichale Vs. Divisional Caste Scrutiny Committee No. 1 and others, reported in 2010(6) Mh.L.J. 401. The Division Bench of this Court, in the matter arising out of similar facts and circumstances, has observed that :
"..... The matters pertaining to validity of caste have a great impact on the candidate ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 00:26:34 ::: {9} wp12778-17.odt as well as on the future generations in many matters varying from marriage to education and employment, and therefore where a committee has given a finding about th validity of the caste of a candidate another committee ought not to refuse the same status to a blood relative who applies. A merely different view on the same facts would not entitle the committee dealing with the subsequent caste claim to reject it. There is, however, no doubt as observed by us earlier that if a committee is of the view that the earlier certificate is obtained by fraud it would not be bound to follow the earlier caste validity certificate and is entitled to refuse the caste claim and also in addition initiate proceedings for cancellation of the earlier order."
12. In another judgment delivered by Division Bench at Nagpur in the matter of Siddheshwar s/o Ramkisan @ RAmkrushna More Vs. The Divisional Caste Certificate Scrutiny Committee No. 2, Akola in Writ Petition No. 326 of 2015 and other companion petitions, it is observed in paragraph No. 11 of the judgment, thus :
11. We have ample experience of the Scrutiny Committee, time and again it is found that in spite of remand and in spite of direction by the Court to consider the validity certificate of the blood relatives, the Scrutiny Committee goes on repeating the same orders and goes on invalidating the claims of the petitioners by ignoring not only the validity certificate granted in favour of the close relatives, but also in ignorance of the law laid own by this Court in the case of Apoorva Vs. D.C.C.S. Committee cited supra.
13. The Division Bench has also observed in paragraph 16 of the ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 00:26:34 ::: {10} wp12778-17.odt judgment that since approach of the Scrutiny Committee in the aforesaid matter is anyhow to harass the applicants before it and go on denying the claim of eligible candidates and also pass the orders in ignorance of the law laid down by this Court in the case of Apoorv Vs. D.C.C.S. Committee, cited supra, the Court deemed it necessary to issue notice of contempt to the members of the Scrutiny Committee. The Court, thus, is of the opinion that non observance of the law laid down by this Court by the committee is nothing short of committing contempt.
14. For the reasons recorded above, the writ petition is allowed. The order passed by the respondent no. 2 - Scrutiny Committee, Nashik, dt. 27.10.2017, is quashed and set aside. The Scrutiny Committee is directed to issue validity certificate in favour of petitioner in the prescribed format within a period of three days from today.
15. Rule is accordingly made absolute. There shall be no order as to costs.
A.M. DHAVALE R.M.BORDE
JUDGE JUDGE
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