Bombay High Court
Vaibhav S/O Sambhaji Gharat vs The Joint Commissioner/Member ... on 8 August, 2018
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.7235 of 2017
Vaibhav s/o Sambhaji Gharat,
Aged about 18 years,
Occupation - Student,
R/o Silepar, Post - Mangrud,
Tah. Bhirapur, Distt. Nagpur. ... Petitioner
Versus
The Joint Commissioner/
Member-Secretary,
Scheduled Tribe Caste Certificate
Scrutiny Committee,
Nagpur Division, Nagpur. ... Respondent
Ms P.D. Rane, Advocate for Petitioner.
Shri A.M. Joshi, Assistant Government Pleader for Respondent.
Coram : R.K. Deshpande & Arun D. Upadhye, JJ.
th Dated : 8 August, 2018 Oral Judgment (Per R.K. Deshpande, J.) :
1. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:13:02 ::: 2
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2. The challenge in this petition is to the order dated 31-8-2017 passed by the Scheduled Tribe Certificate Scrutiny Committee, Nagpur Division, Nagpur, invalidating the claim of the petitioner for 'Mana Scheduled Tribe', which is an Entry at Serial No.18 of the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra. The claim of the petitioner was considered for the purposes of admission to the Educational Institution.
3. Before the Committee, the petitioner produced in all 22 documents in support of his claim for 'Mana Scheduled Tribe'. In none of the documents, the caste of the petitioner or his blood relatives is shown other than 'Mana'. The latest document is the birth certificate in respect of a male child born to Sakharam Mana, the great grandfather of the petitioner, in the year 1919. The another document is the caste validity certificate dated 11-8-2006 issued by the Committee in the name of the father of petitioner - Sambha Dashrath Gharat. The next vital document is another validity certificate dated 11-6-2007 issued ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:13:02 ::: 3 wp7235.17.odt in the name of Rekha Dashrath Gharat, the paternal aunt of the petitioner, for 'Mana Scheduled Tribe'.
4. The Committee holds that where synonymous entries are there, i.e. Scheduled Tribe synonymous with others, the old documentary entry of caste has no relevance, because the synonymous caste, which is not Scheduled Tribe, also shows the same entry even prior to the Presidential Notification. In respect of the validity certificates produced, the Committee holds in Para 5 of the order that the certificates were issued without considering the affinity test, without making the Vigilance Cell enquiry and without going into the merits on the condition as per the decision of the Hon'ble Supreme Court in C.A. No.5270 of 2004, and it cannot, therefore, be a conclusive proof. It is not the finding of the Committee that the validity certificates were obtained by practising fraud or misrepresentation. The Committee applies the affinity test and holds that the petitioner has failed to satisfy the test.
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5. Relying upon the decision of the Apex Court in the case of Anand v. Committee for Scrutiny and Verification of Tribe Claims, reported in 2011 (6) Mh.L.J. (S.C.) 919, more particularly Para 22 therein, we have no hesitation to hold that the petitioner had conclusively established his claim for 'Mana Scheduled Tribe' on the basis of the documents having probative value and there was no occasion for the Committee to raise a doubt and revoke the affinity test to hold that the petitioner has failed to establish his claim. The affinity test has to be applied only as a corroborative test and it cannot be a substantive evidence.
6. In respect of the affinity test, we have held in the decision in Writ Petition No.7000 of 2017 [Gitesh s/o Narendra Ghormare v. The Scheduled Tribe Certificate Scrutiny Committee, Nagpur and others], decided on 2-7-2018 as under :
"28. Be that as it may, the Committee has applied the affinity tests laid down in the Government Resolutions dated 24-4-1985, 19-6-1988 and 15-6-1995, which are essentially meant to find out as to whether the entry ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:13:02 ::: 5 wp7235.17.odt 'Mana' in the documents is a sub-tribe of 'Gond' or a sub- tribe of 'Kshatriya Mana', 'Badwaik Mana', 'Khand Mana', 'Kunbi Mana', 'Maratha Mana', etc. In view of the decision of the Apex Court in Mana Adim Jamat Mandal's case, cited supra, the community 'Mana' included in the cluster of tribes led by 'Gond' in entry No.18, is declared to be an independent tribe, which is neither a sub-tribe of 'Gond' nor a sub-tribe of 'Kshatriya Mana', 'Badwaik Mana', 'Khand Mana', 'Kunbi Mana', 'Maratha Mana', etc. The Government Resolutions have already been set aside. Hence, the affinity tests prescribed in all such Government Resolutions have lost their significance and are no longer available to the Committee to reject the claim."
7. So far as the issuance of validity certificates issued in the name of the father and paternal aunt of the petitioner for 'Mana Scheduled Tribe' is concerned, we have held in Para 30 of Gitesh Ghormare's case, cited supra, as under :
"30. ... It is the discretion of the Scrutiny Committee whether the claim is to be forwarded to the Vigilance Cell for conducting school, home and other enquiry. If the Scrutiny Committee is not satisfied with the documentary ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:13:02 ::: 6 wp7235.17.odt evidence produced, then only it can forward the documents to the Vigilance Cell. But if the Committee records its satisfaction on the basis of documentary evidence produced and issues a validity certificate, it cannot question its correctness, legality or binding nature or finality attached to it under sub-section (2) of Section 7 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No.XXIII of 2001) on the ground that the Police Vigilance Cell enquiry was not conducted. The Committee, in our view, was wrong in ignoring the caste validity certificates issued in the name of the father of the petitioner validating his claim for 'Mana Scheduled Tribe'."
8. Relying upon the decision of the Division Bench of this Court in the case of Apporva d/o Vinay Nichale v. Divisional Caste Certificate Scrutiny Committee No.1 and others, reported in 2010(6) Mh.L.J. 401, we have taken a view in Gitesh Ghormare's case in Para 31 as under :
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wp7235.17.odt "31. ... It is not the finding of the Committee that the father of the petitioner obtained the caste validity certificate by playing a fraud or that the grant of certificate was without jurisdiction. On the contrary, the certificates indicate that the same are issued in view of the decision of the Apex Court in Civil Appeal No.5270 of 2004. A merely different view on the same facts in a subsequent case of blood relative would not entitled the Committee to reject the claim. If the Committee is permitted to alter or change its view repeatedly, it would create an anomalous situation that each of the blood relatives would be of different caste/tribe and finality attached would become redundant.
In our view, therefore, the Committee ought to have validated the certificate in favour of the petitioner."
9. In view of above, the petition has to succeed by setting aside the order of the Scrutiny Committee by granting a declaration in favour of the petitioner.
10. In the result, the petition is allowed and the following order is passed :
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wp7235.17.odt (I) The order dated 31-8-2017 passed by the Scheduled Tribe Certificate Scrutiny Committee, Nagpur Division, Nagpur, is hereby quashed and set aside.
(II) The claim of the petitioner for 'Mana Scheduled Tribe', which is an Entry at Serial No.18 in the Constitution (Scheduled Tribes) Order, 1950 is held to be valid.
(III) The Committee is directed to issue accordingly the caste validity certificate to the petitioner within a period of one month from today.
11. Rule is made absolute in above terms. No order as to costs.
(Arun D. Upadhye, J.) (R.K. Deshpande, J.) Lanjewar ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:13:02 :::