Bombay High Court
Bhushan Manohar Salunke And Another vs The Scheduled Tribe Certificate ... on 22 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 2773
Author: Shrikant D. Kulkarni
Bench: S.V. Gangapurwala, Shrikant D. Kulkarni
959-wp-7716-20 (Jt.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7716 OF 2020
1. Bhushan Manohar Salunke
Age : 22 years, Occu.: Education,
2. Yogesh Manohar Salunke
Age : 18 years, Occu.: Education,
Both R/o. Renu Nagar, Dheku Road
Amalner, Dist. Jalgaon ... Petitioners.
Versus
1. The Scheduled Tribe Certificate
Scrutiny Committee, Nandurbar,
Through its Member Secretary
2. State Common Entrance Test Cell,
Maharashtra Mumbai
Through its Competent Authority
8th Floor, New Excelsior Building,
A.K. Nayak Marg, Fort,
Mumbai - 400 001. ... Respondents.
....
Mr. Mahesh S. Deshmukh, Advcocate holding for Mr. B.S. Deshmukh,
Advocate for the Petitioners.
Mr. P.S. Patil, Addl. G.P. for Respondent No.1.
Mr. S.G. Karlekar, Advocate for Respondent No.2.
....
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
Closed for Judgment on : 10.12.2020
Judgment Pronounced on : 22.12.2020
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JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-
1. Rule. Rule made returnable forthwith. With the consent of learned counsel for both the sides, heard finally at admission stage.
2. By this petition filed under Article 226 of the Constitution of India, the petitioners have assailed the impugned order dated 26.10.2020 passed by the Scheduled Tribe Certificate Scrutiny Committee, Nandurbar ( in short "the committee"), whereby the petitioners' claim for tribe validation came to be rejected.
3. The grievance of the petitioners is, they belonging to "Tokre Koli" Scheduled Tribe and they have received tribe certificates to that effect issued by the competent authority. The petitioners are siblings inter se.
4. While prosecuting studies, the then college authority referred the tribe certificates of the petitioners for verification to the committee. The petitioners have produced sufficient documentary evidence in support of their claim. The vigilance enquiry was conducted. The petitioners have filed their say to the vigilance report in response to the notice issued by the committee. According to the petitioners, the vigilance officer has confirmed the fact about the grant of validity in favour of the father of the petitioners. The 2 of 17 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 17:15:48 ::: 959-wp-7716-20 (Jt.) 3 committee has invalidated the tribe claim of the petitioners by impugned order dated 15.10.2020.
5. According to the petitioners, the impugned order is bad in law. The findings recorded by the committee are not only erroneous, but also perverse. The committee has not taken into consideration the important fact of validity certificate issued in favour of the father of the petitioners in a proper perspective. The petitioners have not suppressed any evidence from the committee. The petitioners, in the file of the father of the petitioners, the father candidly submitted the entries of his father and grandfather stating therein caste as "Koli" and "Suryawanshi Koli", which is contra evidence. Meaning thereby, there was no suppression of contra evidence. The vigilance report from the file of the father, it is clear that contra entries, which were already submitted by their father. The then committee has issued tribe validity certificate in favour of father by examination of documentary evidence and papers. As such, it would be inappropriate to discard the tribe validity certificate issued in favour of the father of the petitioners.
6. Heard Mr. M.S. Deshmukh, learned counsel for the petitioners, Mr. P.S. Patil, Additional Government Pleader for Respondent No.1 / 3 of 17 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 17:15:48 ::: 959-wp-7716-20 (Jt.) 4 committee and Mr. S.G. Karlekar, the learned Advocate for respondent No.2.
7. Perused the impugned order passed by the committee, vigilance report, genealogy, report of the Research officer and original files of the petitioners and their father made available by the committee.
8. Mr. Deshmukh, learned counsel for the petitioners vehemently submitted that the impugned order is illegal, improper and contrary to the provisions of law and decisions of the Hon'ble Supreme Court and the Bombay High Court. He submitted that oldest document pertaining to grandfather, which purportedly found to be tinkered as per subsequent report, copy of said report is not provided together with any notice to the petitioners seeking their explanation and no opportunity of further hearing was provided to the petitioners after submission of subsequent report. As such, there was violation of principle of natural justice. The father of the petitioner has not suppressed any contra evidence while scrutiny of his case. The committee is quasi- judicial authority and as such, it was necessary for the committee to apply the standard of proof on the rational of preponderance of probabilities. The father has received validity certificate as "Tokre Koli" Scheduled Tribe. The committee has 4 of 17 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 17:15:48 ::: 959-wp-7716-20 (Jt.) 5 examined all the documents. The observations made by the committee are improper and incorrect. The findings recorded by the Committee are improper. To support his arguments, Mr. Deshmukh has placed reliance on the following stock of citations.
(i) Anand Vs. Committee for Scrutiny and Verification of Tribe claim and ors. reported in (2012)1 SCC 113.
(ii) Kumari Madhuri Patil and another Vs. Addl. Commissioner, Tribal Development and others reported in (1994) 6 SCC 241.
(iii) Balwant S/o. Vitthal Jalgaonkar Vs. State of Maharashtra and others reported in 2004(3) Mah. L. R. 687 (Bombay High Court, Bench at Aurangabad)
(iv) Vaihavi D/o Sharad Agalawe Vs. State of Maharashtra and others (Writ Petition No.12778 of 2017 dated 27.06.2018 Bombay High Court, Bench at Aurangabad)
(v) Sayanna Vs. State of Maharashtra and others reported in (2009) 10 SCC 268.
9. Per contra, Mr. P.S. Patil, learned Addl. G.P. for respondent No.1 / committee submitted that the order passed by the committee in this case is not defective in the eyes of law. The findings recorded by the committee are well reasoned, which refers to the various decisions of the Hon'ble Supreme Court and the Bombay High Court. He invited our attention to the old entry pertaining to cousin 5 of 17 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 17:15:48 ::: 959-wp-7716-20 (Jt.) 6 grandfather of the petitioners namely Namdev Chindu Koli dated 28.06.1948 and pointed out that in the caste column "Hindu Koli" has been recorded. He further submitted that in the school record of the real grandfather of the petitioners namely Pundlik Chindu Salunke, the caste is recorded as "Hindu Suryawanshi". By taking help of this material, he submitted that in the school admission record of great- grandfather of the petitioners namely Chindu Kaharu Koli at Sr. No.238, the caste is recorded as "Hindu Tokre Koli" and date of admission is 15.09.1918. While making physical verification by the vigilance officer, it was found that in the said school record, from Sr. No. 230 to 236 and Sr. No.237 to 240, there is a difference in the handwriting and the same has been rewritten by another ink pen. By taking help of this material, learned Addl. G.P. submitted that the tribe claim of the petitioners is doubtful. The committee has decided to reopen the case of the petitioners father and as such, no more reliance can be placed on the caste validity claim of the petitioners father. Mr. Patil, submitted that it is not a fit case to interfere with the decision rendered by the committee.
10. Mr. S.G. Karlekar, learned counsel for respondent No.2 supported to the stand taken by the learned Additional Government Pleader.
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11. We have considered the submissions canvassed by the learned counsel for both the sides.
12. On making scrutiny of the original file, it is found that the petitioners have relied upon the caste validity certificate issued in favour of their father namely Manohar Pundlik Salunke of being a member of "Tokre Koli" Scheduled Tribe and the school record of the grandfather, cousin grandfather and real great-grandfather of the petitioners right from the year 1918.
13. The committee has negatived the tribe claim of the petitioners on the following grounds:
(i) The petitioners have failed to prove her tribe claim as "Tokre Koli" by way of documentary evidence.
(ii) The petitioners are not entitled to get benefit of validity certificate issued in their family.
(iii) The petitioner has failed to prove the affinity test.
14. Now coming to the facts of the case on hand. The petitioners have produced following piece of documentary evidence in support of their tribe claim.
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v- nLr,sotkpk izdkj nLr,sotkaojhy vtZnkjk'kh Tkkrhph @ izos'k @ Ukkasn.kh
Ø- O;Drhps uko ukrs tekrhph fnukad
ukasn
1- TkUe iqjkok okeu fpa/kq dgk: vktksck dksGh TkUe rkjh[k
dksGh 29-07-1946
2- 'kkys; iqjkok Ukkenso fpa/kq dksGh pqyr iatksck fganw dksGh 28-06-1948
3- 'kkys; iqjkok iqaMyhd fpa/kq lkGqa[ks vktksck fganw 13-03-1952
lq;Zoa'kh
dksGh
4- 'kkys; iqjkok fpa/kq dgk: dksGh iatksck fganw Vksdjs 15-09-1918
dksGh
Jh- fpa/kq dgk: dksGh ;kaP;k 'kkys; iqjkO;kph iksyhl n{krk iFkdkus lR;rk iMrkG.kh dsyh vlrk mDr ukasnhP;k yxrP;k uksanhr o vtZnkj ;kaps iatksck Jh- fpa/kq ;kaph uksan vlysY;k i`"Bkojhy uksanh osxG;k 'kkbZP;k isuus uO;kus iqufyZ[khr dsys vlY;kps rlsp gLrk{kjkr rQkor vlY;kps vk<Gwu vkysys vlY;kps ueqn dsys vkgs-
5- 'kkys; iqjkok euksgj iqaMyhd ofMy fganw Vksdjs 22-06-1978
lkGqa[ks dksGh
6- 'kkys; iqjkok dSykl iqaMyhd lkGqa[ks dkdk fganw Vksdjs 02-06-1983
dksGh
7- 'kkys; iqjkok ;ksxs'k euksgj vtZnkj dz-2 fganw Vksdjs 16-06-2008
lkGqa[ks dksGh
'ks-Vªk-
8- 'kkys; iqjkok Hkq"ku euksgj lkGqa[ks vtZnkj dz-2 fganw Vksdjs 04-05-2011
dksGh
¼,l-Vh-½
vtZnkj ;kaps oMhy Jh- euksgj iqaMyhd lkGqads ;kaP;k izdj.kh iksyhl n{krk iFkdkus izkIr dsysY;k iqjkO;kojhy tkrhP;k uksanh [kkyhyizek.ks vkgsr % 'kkys; iqjkok jkenkl lqiMq dksGh pqyr iatksck fganw dksGh TkUe rkjh[k 16-08-1928 izos'k rkjh[k 04-01-135 'kkys; iqjkok ckjdq dgk: dksGh pqyr iatksck fganw dksGh TkUe rkjh[k 01-06-1918 izos'k rkjh[k 01-07-1925 'kkys; iqjkok rqG'khjke fpa/kq dksGh Pqyr vktksck dksGh TkUe rkjh[k 25-06-1938 The petitioners have also relied upon the tribe validity certificate issued in favour of their father Manohar Pundlik Salunke.
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15. The oldest document relied upon by the petitioners is of their great-grandfather namely Chindhu Kaharu Koli dated 15.09.1918. The said entry of the year 1918 records caste of the great-grandfather of the petitioners as "Hindu Tokre Koli". Further, in the school record dated 28.06.1948 pertaining to the cousin grandfather of the petitioners namely Namdev Chindhu Koli records caste as "Hindu Koli". In the school record dated 29.07.1946 pertaining to the petitioner real grandfather namely Waman Chindhu Kaharu Koli records his caste as "Koli". The school record of petitioners father namely Manohar Pundlik Salunkhe records his caste as "Hindu Tokre Koli" right from the year 1978. Whereas, the cousin great-grandfather and cousin grandfather record speaks entry of 'Hindu Koli" in the school record as referred above.
16. The oldest entry is of 15.09.1918 pertaining to the petitioners great-grandfather Chindhu Kaharu Koli upon which the petitioners have placed their heavy reliance. The vigilance has conducted an enquriy about the said oldest enquiry and it is found that the entry of Chindu has been recorded in different ink and rewritten fresh having regard to other entries close to it. That's why the vigilance officer has taken doubt about the same. The committee has also discarded that entry in view of vigilance report coupled with the entry of 9 of 17 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 17:15:48 ::: 959-wp-7716-20 (Jt.) 10 petitioners grandfather and cousin grandfather, which recorded entries of caste as "Koli" / "Hindu Koli" / "Hindu Suryawanshi Koli". The learned Addl. G.P. has also invited out attention to the above factual scenario during the course of argument.
17. Mr. Deshmukh, learned counsel for the petitioners pointed out that the committee has not called for the original school admission record for verification in order to get a true picture. It is further pointed out that the said report was subsequently filed and no notice was given to the petitioners seeking their explanation. No opportunity of further hearing provided to the petitioners after submission of the subsequent report.
18. We find merit in the submissions of Mr. Deshmukh, learned counsel for the petitioner. The principle of natural justice seems to have not followed by the committee while discarding the oldest entry by simply relying upon the vigilance report. The committee ought to have called the original school record in order to get the true picture and also affording an opportunity to being heard to the petitioners. As such, it would not be appropriate to discard the oldest entry of school record of the year 1918, wherein the caste of the petitioners great- grandfather in the school record recorded as "Hindu Tokre Koli".
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19. In case of Sayanna Vs. State of Maharashtra and others (supra), it is held by the Hon'ble Supreme Court that if the committee found any interpolation in the school record and the vigilance report is not based upon credible evidence, the committee needs to obtain expert opinion and verification of the school record. In the case on hand, it is difficult to understand what was the basis for the scrutiny committee to arrive at such kind of conclusion to disbelieve the oldest entry of 1918 without having an old record before it. It seems that the committee has simply relied upon the vigilance report and discarded the oldest entry of 1918. According to us, the approach of the committee is incorrect in view of the decision of Sayanna Vs. State of Maharashtra and others (supra).
20. The committee has issued tribe validity certificate to the petitioners father namely Manohar Pundlik Salunke. The vigilance seems to have been conducted while issuing the tribe validity certificate to the Manohar Pundlik Salunke as belonging to "Hindu Tokre Koli". Now committee has taken a stand that validity certificate has been issued by Nashik Committee. The then committee has relied upon one validity certificate issued to cousin of Manohar Pundlik Salunke, but said validity holder Dnyaneshwar Pitambar Salunke is not any way concerned with Manohar Pundlik Salunke. There is no 11 of 17 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 17:15:48 ::: 959-wp-7716-20 (Jt.) 12 relation in between Manohar Salunke and Dnyaneshwar Pitambar Salunke. The above said relation seem to be out of marriage relation and that's why the certificate issued in favour of Manohar Salunke (petitioners father) has been discarded.
21. The above said exercise of the committee is found contrary to the decision of this court in case of Apoorva d/o Vinay Nichale Vs. Divisional Caste Certificate Scrutiny Committee No. 1 and others reported in 2010 (6) Mh.L.J. 401. The legal position has been made clear by the Division Bench of this Court in case of Apoorva (supra), wherein it is stated that the validity certificate issued in the family of the petitioner who is blood relative can not be doubted by the existing committee by observing something different. It is also important to note that all the above said entries were the subject matter when the tribe validity certificate was issued to the petitioners father. The then committee did not find any material against the petitioners father and issued tribe validity certificate. Now, this committee is taking a different view, which is improper and incorrect in view of decision in case of Apoorva (supra). If the petitioners father has obtained tribe validity certificate from the then committee by playing fraud or by suppression of facts, then in that case the present committee is empowered to take necessary legal action including cancellation of 12 of 17 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 17:15:48 ::: 959-wp-7716-20 (Jt.) 13 validity certificate. Now, the committee has taken a decision to issue show cause notice to petitioners father namely Manohar Pundlik Salunke, but as on today the validity certificate issued to the petitioners father still holds the field.
22. The petitioners are entitled to get benefit of caste validity certificate, which is standing in favour of their father and that benefit can not be snatched when no enquiry is yet initiated against their father for invalidation of tribe claim.
23. Having regard to the above reasons and discussion, we arrive at conclusion that the findings recorded by the committee against issue Nos. 1 and 2 are incorrect.
24. Now coming to another point of the affinity test. The committee has recorded the finding that the petitioners have failed to prove the affinity test. According to the observations made by the committee, the family members of the petitioenrs do not have knowledge about their customs, tradition, traits etc., which are of Scheduled Tribe. The information collected by the vigilance officer pertaining to the petitioners family do not match with the Scheduled Tribe "Tokre Koli", and therefore, the committee has arrived at conclusion that the 13 of 17 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 17:15:48 ::: 959-wp-7716-20 (Jt.) 14 petitioners have failed to prove the affinity test. The genuineness of a caste claim needs to be considered not only by way of detail examination of the documents but also on the affinity test, which would include the anthropological and ethnological traits etc. of the petitioner. The affinity test is not a litmus test. We would like to place reliance in case of Anand Vs. Committee for Scrutiny and Verification of Tribe claim and ors. reported in (2012)1 SCC 113, wherein it is observed by the Hon'ble Supreme Court, which read thus:-
"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, 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 to attend school, the availability of any documentary evidence becomes difficult, but that ipso 14 of 17 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 17:15:48 ::: 959-wp-7716-20 (Jt.) 15 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, the 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 tribe's 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 15 of 17 ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 17:15:48 ::: 959-wp-7716-20 (Jt.) 16 not be the sole criteria to reject a claim. Burden to prove lies upon applicant - In case material produced by applicant does not prove his claim, Committee cannot gather evidence on its own to prove or disprove his claim."
25. In view of the above, the finding recorded by the committee on the issue of the affinity test is also found erroneous and contrary to the decision of the Hon'ble Apex Court in case of Anand Vs. Committee for Scrutiny and Verification of Tribe claim and ors. (supra).
26. Having regard to the above reasons and discussion, we arrive at conclusion that the findings recorded by the committee are erroneous. As such, it would be appropriate to issue tribe validity certificate to the petitioners subject to the decision of invalidation proceeding, which would be initiated by the committee against their father namely Manohar Pundlik Salunke. The impugned order rendered by the Committee invalidating tribe claim of the petitioners needs to be quashed and set aside. The petitioners are entitled to get tribe validity certificate. With these reasons, we conclude and proceed to pass the following order.
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(i) The order / decision rendered by respondent No.3 / Scrutiny Committee, Nandurbar dated 26.10.2020 is hereby quashed and set aside.
(ii) Respondent No.1 / Scheduled Tribe Certificate Scrutiny Committee, Nandurbar shall issue validity certificate to the petitioners of being a member of "Tokre Koli" forthwith.
(iii) The said validity certificates shall be subject to the decision of invalidation proceeding, which would be initiated by the committee against their father namely Manohar Pundlik Salunke.
(iv) Rule is made absolute accordingly.
(v) The writ petition is disposed of. No order as to costs.
( SHRIKANT D. KULKARNI ) ( S.V. GANGAPURWALA )
JUDGE JUDGE
S.P. Rane
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