Bombay High Court
Pranjali Girdhari Baisani vs District Caste Scrutiny Committee, ... on 6 March, 2020
Author: Amit B. Borkar
Bench: R. K. Deshpande, Amit B. Borkar
1 wp1937j-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1937 OF 2019
Pranjali Girdhari Baisani,
Aged about 21 years, Occ. Student,
R/o. Opposite Ayurvedic College,
Shivaji Nagar, Yavatmal. . . . PETITIONER
...V E R S U S..
1. District Caste Scrutiny Committee
through its Chairman, Dr. Babasaheb
Ambedkar Sanskrutik Bhavan, Yavatmal.
2. Sant Gadge Baba Amravati University
through its Registrar, Amravati.
3. Amolakchand Vidhi Mahavidyalaya
through its Principal, Godhani Road,
Yavatmal. . . . RESPONDENTS
------------------------------------------------------------------------------------------------
Shri Abdul Subhan h/f. Shri F. T. Mirza, Advocate for petitioner.
Shri N. R. Patil, A.G.P. for respondent no. 1.
Shri J. B. Kasat, Advocate for respondent no. 2.
-----------------------------------------------------------------------------------------------
CORAM :- R. K. DESHPANDE AND
AMIT B. BORKAR, JJ.
RESERVED ON :- 17.02.2020
PRONOUNCED ON :- 06.03.2020
JUDGMENT (PER : AMIT B. BORKAR, J.):-
1. Rule. Rule is made returnable forthwith. Heard finally by consent of learned counsels appearing for the parties. ::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 :::
2 wp1937j-19.odt
2. The Petitioner has challenged invalidation of her claim as belonging to "Kshatriya" caste, which is entry no. 126 under "Other Backward Class" (OBC) category, by the District Caste Scrutiny Committee, Yavatmal (hereinafter referred to as 'the Committee'). The relevant facts for adjudication of the present petition are as under:-
3. The petitioner is a student pursuing her LL.B course. The petitioner got admission in respondent no. 3-College against the seat reserved for OBC category candidate. The caste certificate of the petitioner dated 11.07.2016 issued by the Sub-Divisional Officer, Yavatmal was sent for verification to the Committee. The petitioner claims that she belongs to "Kshatriya" caste, which is recognized as OBC at Sr. No. 126 under Government Resolution dated 01.03.2006. The petitioner submitted 11 documents in support of her claim, out of which two documents were prior to 13.10.1967, which is the date on which benefits of OBC were notified in the State of Maharashtra. The Committee sent documents of the petitioner to the Vigilance Cell and the report of the Vigilance Cell was received by the Committee.
4. The Committee invalidated the claim of the petitioner mainly on the following three grounds :-
::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 :::
3 wp1937j-19.odt
(i) The petitioner has failed to submit sufficient proof to prove her claim belonging to " Kshatriya" caste, which is synonym with "Patkar ,Somvanshiya Sahastrajun Kshatriya", which is entry no.
126.
(ii) Government Resolution dated 01.04.1987 has recognized only 5 castes from Sindhi community, which does not contain caste "Kshatriya".
(iii) The petitioner has failed the Affinity Test in regards to the caste "Patkar ,Somvanshiya Sahastrajun Kshatriya".
5. This Court on 08.04.2019 issued a notice for final disposal and in the meantime granted a stay to the order passed by the Committee. Respondent no. 1 filed its reply and supported the order of the Committee. It is submitted, by way of its reply, that Government Resolution dated 01.03.2006 includes "Kshatriya" as sub-caste of caste "Patkar". The Affinity Test shows that the petitioner belongs to Sindhi community. Regarding the three caste validity certificates issued to the persons of Sindhi community, which are not related to the petitioner, were never produced before the Committee and therefore, the benefit of the said validity certificates cannot be extended to the petitioner. Respondent no. 1, therefore, prayed for dismissal of the petition.
::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 :::
4 wp1937j-19.odt
6. We have heard Advocates for both the sides at length and carefully considered the record of the present petition. The first reason for invalidating the claim of the petitioner is based on interpretation of entry no. 126 included by Government Resolution dated 25.06.2008. Entry No. 126 published by Notification dated 26.09.2008 reads as under:-
"126- ikVdj] lkseoa'kh; lgL+=ktwZu {kf=;] iVosdjh] iVosxkj] iVsxkj] iÍsxkj] iVoh] {kf=; ikVdj] [k=h] {kf=;."
7. It appears that the Committee has considered entry "Kshatriya" as sub-caste of "Patkar, Somvanshiya Sahastrajun Kshatriya" and therefore, recorded finding that there is no sufficient evidence produced by the petitioner in support of her claim. The petitioner has produced 11 documents in support of her claim, out of which documents at Sr. No. 8 and 9 are prior to the date of 13.10.1967. The document at Sr. No. 8 is a School Leaving Certificate of the grandmother of the petitioner, which has been verified by the Vigilance Cell (date of entry in school is 01.07.1967). The petitioner has also produced a School Leaving Certificate of her aunt (date of entry to School is 10.11.1962). There is no dispute about genuineness of both the above documents, which are prior to inclusion of OBC category on 13.10.1967.
::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 :::
5 wp1937j-19.odt
8. Based on the findings of the Committee, it appears that the Committee has not specifically considered both the above documents from its proper perspective. The Committee has recorded finding that the petitioner had failed to prove her claim as "Kshatriya", which is synonymous with "Patkar" caste. It appears that the Committee expected the petitioner to produce documents to prove that the claim of "Kshatriya" caste of the petitioner as sub-caste of "Patkar" and in absence of documents showing entry as "Patkar" ("Kshatriya"), the claim of the petitioner has been invalidated.
9. In the above backdrop, it is necessary to consider as to whether the Committee was justified in treating entry "Kshatriya" as sub-caste of "Patkar, Somvanshiya Sahastrajun Kshatriya". From the reading of Notification dated 26.09.2008 and Government Resolution dated 25.06.2008, it is clear that entry "Kshatriya" was added as an independent entry at Sr. No. 126 preceded by "comma". The question as to whether the entry in the Government Resolution/ Notification can be interpreted based on other material is no longer res-integra in view of the two judgments of this Court.
i) Division Bench of this Court in the case of Vasant Pandurang Narwade Vs. State of Maharashtra and others, reported in 2002 (1) Mh.LR. 812 , in paragraph no. 20 has observed as under :- ::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 :::
6 wp1937j-19.odt
20. The petitioner alongwith other documents, had also submitted a copy of the representation dated 26.05.2000 addressed to the Hon'ble Chief Minister of Maharashtra by the Chief Promoter of Marathwada Kunbi Maratha Vikas Mahamandal at Dhamangaon, Tq. Jalkot, Dist. Latur. The prayer in this representation was that all the persons belonging to Maratha caste in the Marathwada region should be recognized as Kunbi and they should be issued the caste certificate as belonging to Kunbi caste. This representation has referred to the same gazetteers as relied upon by the petitioner before the scrutiny committee and attempted to suggest that there was no distinction between Marathas and Kunbis and Maratha caste is part and parcel of Kunbi caste. In short, the petitioner's plea was also on the same lines as is made out in the representation submitted to the Chief Minister and though there were certificates in respect of himself, his father and grant father, that all of them belonged to Maratha caste, he should be declared as belonging to Kunbi caste. The Committee rightly held that such a proposition could not be accepted. The committee's jurisdiction was limited to an enquiry whether the petitioner belongs to the Kunbi caste and nothing beyond the same. Even the order passed by the Apex Court remanding the matter for fresh adjudication also goes to show that the committee was required to verify the petitioner's caste claim of belonging to Kunbi caste by giving him a fresh opportunity of submitting evidence - documentary and oral. If the petitioner claims that there is no difference between Maratha and Kunbi caste and Maratha caste is part and parcel of Kunbi caste or a synonym of the same, his remedy is before the State Government and it is not within the powers of the scrutiny committee to adjudicate upon the same. This view is supported by the judgment of the Supreme Court in the case of State of Maharashtra v. Milind (supra). While interpreting the provisions of Articles 341 and 342 of the Constitution, the Supreme Court held that it was not at all permissible to hold ::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 ::: 7 wp1937j-19.odt any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community was included in the general name even though it was not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950 and the Scheduled Tribes Order must be read as it is. It was not even permissible to say that a tribe, sub-tribe, part of, or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes can be amended only by law to be made by the Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by the Parliament by law and by no other authority and it was not open to State Governments or courts or Tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342.
What has been held by the Apex Court in the case of Scheduled Tribes must be made equally applicable to the cases of OBCs and it has to be held that it is not open to the committee to modify, amend or alter the list of such classes and it is open only to the State Government, to amend the same by following the necessary procedure and more particularly the law laid down by the Apex Court in the case of Indira Swahney V. Union of India. We may, in this regard, usefully refer to the decision of the Supreme Court in the case of Ganesh Suroshe (supra), wherein it was observed:
"The notification of the President under Article 342 of the Constitution, subject to the Scheduled Castes and Scheduled Tribes Act, 1976, is conclusive and final. There are catena of decisions of this Court holding that the Court cannot examine, to find out the caste of the ::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 ::: 8 wp1937j-19.odt party, the basis of the certificate issued. The limited area the Court can survey is whether the caste mentioned in the presidential Notification would be applicable to the claimant or not."
ii) Another Division Bench in the case of Akshay Santosh Gondhi Vs. State of Maharashtra and others, reported in 2018 (2) Mh.L.J. 693, in paragraph no. 6 and in particular in the last four lines has reiterated view in the case of Vasant Pandurang Narwade (supra) as under :-
"6. . . . . . . .An entry in the list of SC, ST/OBC has to be read as it is and it is settled position of law that the Presidential Notification identifying the said SC/ST or the Notifications issued by the State Government in relation to "other backward class" are not susceptible of any interpretation and it is not permissible for the Courts to add or delete any of these entries."
10. The Hon'ble Apex Court in the case of State of Maharashtra and others Vs. Mana Adim Jamat Mandal, reported in (2006) 4 SCC 98, in paragraph no. 30 has held as under :-
"30. The common pattern found in most of the group entries is that there is a punctuation mark comma (,) between one entry and another entry in the group signifying that each one of them is deemed to be a separate Scheduled Tribe by itself. In the present case, Entry 18 of the Schedule clearly signifies that each of the tribe mentioned therein is deemed to be a separate tribe by itself and not a sub-tribe of "Gond". "Gond" is a Scheduled Tribe, it is not disputed. As already noticed that "Gond" including Arakh or Arrakh, etc. found in Entry 12 of the Amendment Act 63 of 1956 has ::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 ::: 9 wp1937j-19.odt been done away with by the Amendment Act of 1976. In Entry 18 of the Second Schedule of the Amendment Act of 1976 the word "including" was deliberately omitted, which signifies that each one of the tribes specified in Entry 18 is deemed to be a separate tribe by itself. Therefore, "Mana" is not a sub-tribe of "Gond" but a separate tribe by itself and is a Scheduled Tribe."
11. In view of the aforesaid judgments, the findings recorded by the Committee in the impugned order that "Kshatriya" is sub-caste of "Patkar Somvanshiya Sahastrajun Kshatriya" is contrary to the law laid down by the Hon'ble Apex Court and this Court in the above- mentioned judgments. Though as per Government Resolution dated 25.06.2008, the caste "Kshatriya" is shown as sub-tribe, in fact in the Notification dated 26.09.2008, it is not shown as sub-tribe of "Patkar".
12. The second ground for invalidating the claim of the petitioner is based on a Government Resolution dated 01.04.1987. The Committee has recorded finding that Government Resolution dated 01.04.1987 recognized only five castes from Sindhi community, which does not includes caste "Kshatriya". The reliance by the Committee on the Government Resolution is ignorance of the judgment of the Hon'ble Apex Court in the case State of Maharashtra Vs. Ku. Tanuja, reported in (1999) 2 SCC 462, which in turn has confirmed the Full Bench decision of this Court reported in the case ::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 ::: 10 wp1937j-19.odt of Ku. Tanuja D/o. Maganlal Rajpal Vs. State of Maharashtra, reported in 1989 Mh.L.J. 99. The Full Bench of this Court in the aforesaid judgment has declared that Government Resolution dated 01.04.1987 is illegal and ultra-virus, as same is contrary to the judgment of the Division Bench of this Court in the case of Vijay Shrichand Daulatnni v. State of Maharashtra reported in (1985) 2 BCR 488. The Full Bench in the case of Ku. Tanjua Rajpal (supra) has held that Government Resolution dated 01.04.1987 to the extent it seeks to set at naught or overrule the binding judgment of the High Court in Vijay Daultani's case (supra) as illegal and ultra-vires being beyond the scope of the executive powers of the State Government. Even otherwise, the Sindhi community is not a caste but is recognized for its linguistic connotation. Therefore, the second reason for invalidating claim is not sustainable in the eyes of the law.
13. The third reason for invalidating the claim of the petitioner is based on Affinity Test of the petitioner considering caste of "Kshatriya" as a synonym of the "Patkar, Somvanshiya Sahastrajun Kshatriya". In view of findings recorded above, that caste "Kshatriya" is an independent entry in Government Resolution dated 25.06.2008 and Notification dated 26.09.2008, the basis of Affinity Test is illegal and therefore, comparing traits of "Kshatriya" with "Patkar, Somvanshiya Sahastrajun Kshatriya" was not permissible. Even ::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 ::: 11 wp1937j-19.odt otherwise, also in view of the two documents prior to the date of 13.10.1967 which have probative value, the claim of the petitioner could not have been rejected based on Affinity Test. The Hon'ble Apex Court in the case of Anand Vs. Committee for Scrunity and Verification of Tribe Claims and others, reported in (2012) 1 SCC 113, has held that Affinity Test is not a litmus test. The documents having probative value pertaining to the period prior to 1967 are placed on record. Authenticity of those documents is not in dispute. If the petitioner has established a relationship with the persons in whose names the documents are executed then there is hardly any scope to reject the claim of the petitioner based on Affinity Test.
14. As a result, the petition is allowed.
15. The order dated 21.12.2018 passed by the Committee, invalidating the claim of the petitioner is hereby quashed and set aside. It is held that the petitioner has established her claim as "Kshatriya", which is entry at Sr. No. 126 of the list of OBC in the State of Maharashtra.
16. The Committee is directed to issue caste validity certificate to the petitioner accordingly, within a period of four weeks from the date on which the petitioner produces a copy of this judgment before it.
::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 :::
12 wp1937j-19.odt
17. Rule is made absolute in aforesaid terms. No order as to costs.
JUDGE JUDGE
RR Jaiswal
::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 08:03:44 :::