Bombay High Court
Rushikesh Bharat Garud vs The State Of Maharashtra Thr Its ... on 29 June, 2021
Author: Nitin Jamdar
Bench: Nitin Jamdar, C. V. Bhadang
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO. 11536 OF 2021
Rushikesh Bharat Garud
Age 24 years, Occ. Student,
residing at Omkar Bunglow,
Rasbihari Link Road, Pramod
Mahajan Garden, near Bali
Mandir, Panchawati, Nashik,
Tal. Nashik, Nashik-422 003 ... Petitioner
V/s.
1. The State of Maharashtra through
its Secretary, Tribal Development
Dept. Mantralaya, Mumbai 400 032.
2. Scheduled Tribe Certificate
Scrutiny Committee, Nashik Division,
Through its Member Secretary, having its
Office at 2nd floor, Adiwasi Vikas Bhavan,
Gadkari Chawk, Nashik-422 002.
3. Maharashtra University of Health
Sciences through its Controller of
Examination having its office at
Mhasrul, Dist. Nashik.
4. SMBT's Sevabhavi Trust's SMBT
Ayurved College and Hospital
having its registered address Nandi
Hills, Sinnar Ghoti Highway,
Dhaman Gaon, Tal. Igatpuri,
Dist. Nashik, Nashik -422 403 ... Respondents
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Mr. R.K. Mendadkar for the Petitioner.
Ms. P.N. Diwan, AGP for Respondent Nos.1 and 2.
Ms.Deepika Prabhala i/b. Res Juris for Respondent No.3.
CORAM : NITIN JAMDAR AND
C. V. BHADANG, JJ.
(Through Video Conferencing)
DATE : 29 June 2021.
JUDGMENT :(Per Nitin Jamdar, J.):
The Petitioner has challenged the order passed by Respondent No.2- Scheduled Tribe Certificate Scrutiny Committee, Nashik, invalidating the caste certificate issued to the Petitioner. The Petitioner has also sought a direction to Respondent Nos.3 and 4 to declare the result of the Petitioner of the final year examination of BAMS degree course.
2. The Petitioner obtained a caste certificate from the Sub- Divisional Officer, Kalwan, District- Nashik, on 5 October 2011. The Petitioners caste certificate was referred to the Respondent- Scrutiny Committee by the Respondent- College on 26 September 2014. Pending the decision of the Committee, the Petitioner was admitted to the First Year of BAMS course. Since the claim for validity certificate was not decided, the Petitioner filed Writ Petition No.1870 of 2016 seeking a direction for early disposal of the pending ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 3 8-WPST-11536.2021.doc caste validity claim, which was disposed of by issuing direction for time-bound disposal. When Scrutiny Committee took up the caste claim for consideration, the Petitioner submitted documents in support, including the school leaving certificates of his blood relatives, caste certificates and village extracts, validity certificates and service book extracts. The Respondent- Scrutiny Committee directed the Police Vigilance Cell to carry out school and local inquiries. The Vigilance Cell submitted its report dated 28 March 2016.
3. The Scrutiny Committee considered the documents produced by the Petitioner and the report placed on record by the Vigilance Cell. The Committee found that the birth record of the Petitioner's father of the year 1921 showed an entry "Koli". The Scrutiny Committee has found there were entries as Koli of the year 1922, 1923, 1926 and 1930, entries of Taru Koli of 1927, Hindu Malhar Koli of the year 1946, entries of Hindu Koli of 1953 and 1957 onward. As of Hindu Mahadeo Koli, one entry found was of 1953, and others were of 1987 and 1993. The Scrutiny Committee found there were entries of 8 blood relatives of blood relatives of the Petitioner of the year 1950, which showed diverse entries. The Scrutiny Committee also took note of the validity certificates placed on record, issued to the Petitioner's father, cousins (sisters and brothers), uncle dated 14 January 2005, 9 September 2005, 20 September 2008, 25 May 2011 and 7 December 2012. The Scrutiny Committee analysed each of these validity certificates and ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 4 8-WPST-11536.2021.doc found that some were not issued after following the mandate of law regarding the evidence required or that they were issued without Vigilance Cell enquiry. The Scrutiny Committee relied upon the decision of the Apex Court in the case of Raju Ramsing Vasave v. Mahesh Devrao Bhivapurkar1 wherein it is observed that if the Scrutiny Committee finds that while granting validity certificate in favour of a member of a family of the applicant if a piece of vital evidence is ignored, it would be open to arriving at a different finding. Concluding that crucial evidence has been ignored, the Scrutiny Committee refused to rely upon the validity certificates in respect of the Petitioner's father and the cousins. The Committee accordingly invalidated the caste certificate of the Petitioner on the ground that the Petitioner has failed to produce the evidence as required. The Scrutiny Committee also issued notices to those whose caste validity certificates were incorrectly issued. Being aggrieved, the Petitioner is before us, challenging the order of the Scrutiny Committee.
4. We have heard Mr. Mendadkar for the Petitioner and Ms. Diwan, AGP for the Respondent- State.
5. The main contention of the learned counsel for the Petitioner is that the Petitioner's father and cousins having been issued validity certificates, there was no warrant to take a different view in the case of the Petitioner. The learned counsel submits that 1 Civil Appeal No.5308/2008 decided on ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 5 8-WPST-11536.2021.doc the validity certificate was issued to the Petitioner's father after holding Vigilance Cell enquiry. The learned counsel also submits that since the impugned order is bad in law needs to be set aside. The validity certificate be granted to the Petitioner and, consequently, a direction be issued to declare the results of the Petitioner and to take all consequential actions. The learned A.G.P has supported the impugned order submitting that the Scrutiny- Committee has rightly not relied on the validity certificates issued earlier and the petitioner has not produced any cogent evidence relating to his caste claim.
6. The Scrutiny Committee has examined the documents in respect of the Petitioner's blood relatives prior to the year 1950. The Vigilance Cell reported that the surnames of Petitioner's relatives were Jadhav, More, Pawar, Gaikwad, which were not the surnames found in the Mahadeo Koli-Scheduled Tribe. The Scrutiny Committee examined the school records and around 35 entries of the Petitioner's blood relatives. The school records were in respect of Nimba Sampat Koli (year 1922), Rodu Kalu Koli (1923), Nagu Kalu Koli (1927), Motiram Pundlik Taru (1927), Tulshiram Pundlik Taru (1930) showed the entry of "Koli". The entries in respect of Digambar Nimba Garud (1945) showed the entry of "Hindu M. Koli". In respect of Anusaya Ganpat Garud and Shantabai Dhanaji Garud, the entry was "Hindu Malhar Koli". All other 14 entries ranging from 1953 to 1966 of the blood relatives of the Petitioner showed the entries as "Hindu Koli" or "Koli". There were some ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 6 8-WPST-11536.2021.doc entries of "Hindu Mahadeo Koli", but of the year 1987, 1993, 2000 and one was of 1952.
7. Section 8 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' places a burden on the candidate to prove the caste claim. It is a long-standing view and a settled position of law that the best documentary evidence regarding a claim as belonging to a scheduled tribe would be the documents prior to the year 1950, commonly known as a pre-constitutional period. The documents relied upon by the Petitioner are of post-1950, and in explanation, the Petitioner relied on documents post-1970. Therefore, the Scrutiny Committee has rightly held that this evidence does not discharge the burden under Section 8 of the Act 2000.
8. A stated earlier, the main contention of the Petitioner is that the Scrutiny Committee ought to have considering the validity certificates issued to the Petitioner's father Bharat Nagu Garud dated 14 January 2005. And also to the cousins of the Petitioner- Nilima Rohidas Garud dated 9 September 2005; Pravin Rohidas Garud dated 9 September 2005; Priyanka Rohidas Garud dated 20 September 2005; Rohidas Nago Garud dated 25 May 2011; and Ramdas Nagu Garud dated 7 December 2012.
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9. The Apex Court, in the case of Raju Ramsing Vasave has observed that the issuance of a validity certificate to the near relative of the applicant cannot be considered irrelevant, but if it is found that while issuing the validity certificate vital evidence has been ignored, the Committee can look into the caste claim of the candidate afresh. The Scrutiny Committee invoked this position of law in the case at hand. Considering that a validity certificate was issued to the Petitioner's father, we have carefully examined whether the approach of the Scrutiny Committee was legal and justified.
10. The Scrutiny Committee observed that when the Petitioner's father's caste claim was considered, 35 contradictory entries were not placed before the Scrutiny Committee. Neither the original validity certificates relied upon by the Petitioner were not produced nor the genealogy. The Scrutiny Committee found that the documents were suppressed by taking advantage of the similarity in names and placing incorrect genealogy on record. Identical is the observations regarding other validity certificates that the adverse entries were not placed on record.
11. The validity certificate issued to the Petitioner's father and the cousins were preceded by reasoned orders. The Petitioner has placed these orders on record.
12. The relevant portion of the order, (with emphasis supplied) preceding the issuance of validity certificate to Petitioner's ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 8 8-WPST-11536.2021.doc father Bharat Nagu Garud reads as under:
The case in respect of Shri/Smt./Kum Bharat Nagu Garud has been referred to the Scrutiny Committee vide application/letter dated 25/5/2004 along with the following documents.
1. The Original Caste Certificate of the candidate in which the caste is mentioned Mahadeo Koli. (xerox copy)
2. The Primary Secondary School leaving Certificate in respect of candidates grandfather/ father/ uncle' candidate himself and other relatives in which the caste is mentioned as Mahadeo-Koli.
3. The Xerox Copy of Validity Certificate in respect of candidates relatives.
4. Original Copy of an affidavit filed by candidates relatives.
5. 7/12 Extract in respect of Candidate and his relatives in which the entry regarding tribal land is mentioned.
6. Certificate given by the Talathi/ Sarpanch/ Social Worker in respect of Candidate and his relatives in which the Caste is mentioned as Mahadeo-Koli.
7. Any other certificate proofs documents: Yes. The applicant, his say on Police inquiry report, the Scrutiny Committee has already issued the Validity Certificate to the applicant relatives of paternal side.
It is true that generally caste entries in the various old records of real Mahadeo Koli, Scheduled Tribe people are also found as Koli and therefore the Scrutiny Committee deeply verified the affinity test i.e. culture, traditions, costumes, T.S.P. Scheduled area, surnames, marriages systems, festivals, way of worship and goddess etc. of the candidate and the validity certificate given by the earlier Committee to the relatives of the candidate and he/she proved his/her affinity towards the Mahadeo Koli, Scheduled Tribe Community.
::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 :::skn 9 8-WPST-11536.2021.doc The Scrutiny Committee has obtained Police Enquiry Report, and the same is in favour of the applicant and the Scrutiny Committee hereby come to the conclusion that documents produced and proved on record he has proved his tribe claim and can be accepted and treated as VALID in this matter. Hence the following order.
ORDER After considering the contents of the documents received affinity etc., factors, the Committee has come to the conclusion that Shri Bharat Nagu Garud belongs to Mahadeo Koli, Scheduled Tribe and hence his/her claim towards the same is held Valid and therefore, the Validity Certificate is issued by the Member Secretary on behalf of the Scrutiny Committee."
In respect of Garud Pravin Rohidas, cousin of the Petitioner, the relevant portion of the order reads thus:
The case in respect of Shri. Garud Pravin Rohidas has been referred to the Scrutiny Committee vide application/ letter dated 17/8/2005 along with the following documents.
1. The Original Caste Certificate of the candidate in which the caste is mentioned Mahadeo Koli.
2. The primary/secondary school leaving certificate in respect of candidate's grand father/father/ uncle candidate himself and other relatives in which the caste is mentioned as Mahadeo-Koli.
3. The Xerox Copy of Validity Certificate in respect of candidate's relatives cousin brothers Validity Certificate No. NSK/EDN.2294/2005/PA4/5510 dt. 19/8/2005.
4. Original Copy of an affidavit filed by candidate's relatives.
5. 7/12 Extract in respect of candidate and his relatives in which the entry regarding tribal land is mentioned.
6. Certificate given by the Talathi/Sarpanch/Social Worker in respect of candidate and his relatives in which ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 10 8-WPST-11536.2021.doc the caste is mentioned as Mahadeo-Koli.
7. Any other certificate proofs documents: C. C. of uncle, sister, grand father, V.C. Report.
It is true that generally caste entries in the various old records of real Mahadeo Koli, Scheduled Tribe people are also found as Koli and therefore the Scrutiny Committee deeply verified the affinity test i.e. culture, traditions, costumes, T.S.P. scheduled area, surnames, marriages systems, festivals, way of worship and goddess etc. of the candidate and the validity certificate given by the earlier Committee to the relatives of the candidate and he/she proved his/her affinity towards the Mahadeo Koli, Scheduled Tribe Community.
The Scrutiny Committee has obtained Police Enquiry Report and the same is in favour of the applicant and the Scrutiny Committee hereby come to the conclusion that documents produced and proved on record, he/she has proved his/her tribe claim and can be accepted and treated as VALID in this matter. Hence the following order.
ORDER After considering the contents of the documents received affinity etc., factors, the Committee has come to the conclusion that Shri Garud Pravin Rohidas belongs to Mahadeo Koli, Scheduled Tribe and hence his claim towards the same is held Valid and therefore, the Validity Certificate is issued by the Member Secretary on behalf of the Scrutiny Committee."
In respect of Priyanka Ramdas Garud, cousin of the Petitioner, the relevant portion of the order preceding the issuance of the validity certificate reads thus:
"Garud Priyanka Ramdas (hereinafter referred to as an "applicant") has applied vide her application dated 3/11/07 ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 11 8-WPST-11536.2021.doc for verification of her tribe claim as belonging to Mahadeo Koli, Scheduled Tribe.
The Scrutiny Committee verified the proposal submitted by the applicant. The applicant has submitted required information in Form "E" as per Rule 11(1) and documents thereto as mentioned in Part IV-B along with her original caste certificate in support of her tribe claim.
The Scrutiny Committee has perused the information and documents submitted by the applicant and has appreciated the same. The applicant has established her affinity and ethnic linkage towards the people belonging to Mahadeo Koli, Scheduled Tribe community. The applicant's ordinary place of residence of the applicant falls in the notified Scheduled Area.
The Scrutiny Committee is fully satisfied by verifying the documents and proofs produced by the applicant in support of her tribe claim. The Scrutiny Committee has come to the conclusion that the tribe claimed by the applicant is genuine one and therefore, as per Maharashtra Act No. XXIII of 2001 and Rule 12(2), the said case has not been handed over to the Police Vigilance Cell of the Scrutiny Committee for detail School and home enquiry and the Scrutiny committee decided to give decision on merit.
After considering the entire evidence on record, we, the Member of the Scrutiny Committee unanimously have come to the conclusion that the claim of the applicant, Garud Priyanka Ramdas as belonging to Mahadeo Koli Scheduled Tribe is established and proved. Therefore, the caste certificate bearing No. Bag.ST/774/2007 date 18/6/2007 issued by Sub Divisional Officer, Kalwan Dn Kalwan is held valid and the validity of tribe certificate be issued accordingly to the applicant."
This order contains no reference to any document prior to 1950.
::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 :::skn 12 8-WPST-11536.2021.doc The order in respect of Rohidas Nago Garud is based on issuance of earlier validity certificates. The Committee has observed that even though the school record of the applicant showed entry as Koli, the validity certificate cannot be ignored. Identical is the Vigilance Cell report in the case of Rushikesh Bharat Garud, which proceeds on the issuance of validity certificate to Bharat Nagu Garud.
13. The above-reproduced passages from the orders especially the underlined portions, shows that the Scrutiny Committee has proceeded on the basis that entries-Koli in the documents prior to 1950 are not adverse to the claim of Mahadeo Koli and that is the historical position. Further, the entry Koli is found in various cases of genuine Mahadeo Koli, and therefore it can be ignored, and validity certificates can be issued based on the affinity test. This approach is entirely contrary to the view taken in a series of decisions of the Apex Court and this Court right from 1994 when the law was laid down in the case of Kumari Madhuri Patil v. Addl.Commissioner2. Following are the relevant passages from the decision in the case of Kumari Madhuri Patil .
5. .. The Mahadeo Koli, a Scheduled Tribe declared in the Presidential Notification, 1950, itself is a tribe and is not a sub- caste. It is a hill tribe.. Kolis, a backward class, are fishermen by caste and profession and reside mostly in Maharashtra coastal area. Kolis have different sub-castes. Mahadeo Kolis reside in hill regions, agriculture, agricultural labour and gathering of minor forest produce and sale thereof is their avocation.
***
9. ... It is common knowledge that endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Castes and 2 1995 AIR 94 1: 1994 SCC (6) 241 ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 13 8-WPST-11536.2021.doc Scheduled Tribes by providing for reservation of seats in educational institutions and for reservation of posts and appointments, are sought to be denied to them by unscrupulous persons who come forward to obtain the benefit of such reservations posing themselves as persons entitled to such status while in fact disentitled to such status. ..Kolis have been declared to be OBC in the State of Maharashtra being fishermen, in that their avocation is fishing and they live mainly in the coastal region of Maharashtra. Mahadeo Kolis are hill tribes, and it is not a sub-caste. Even prior to independence, the Maharashtra Government declared Mahadeo Koli to be criminal tribe as early as 29-5-1933 in Serial No. 15 in List II thereof. In 1942 Resolution in Serial No. 15 in Schedule B of the Bombay resolution Mahadeo Koli tribe was notified as a Scheduled Tribe. It was later amended as Serial No. 13. In the Presidential Scheduled Castes/Scheduled Tribes Order, 1950, it was reiterated. A slight modification was made in that behalf by the Presidential Notification dated 29- 10-1956. In the 1976 Amendment Act, there is no substantial change except removing the area restriction. Thus Mahadeo Koli, a Scheduled Tribe continued to be a Scheduled Tribe even after independence. The Presidential Notification, 1950 also does recognise by public notification of their status as Scheduled Tribes. The assumption of the Division Bench of the Bombay High Court in Subhash Ganpatrao Kabade case [ WP No. 438 of 1985] , that Mahadeo Koli was recognised for the first time in 1976 under Amendment Act, 1976, as Scheduled Tribe is not relatable to reality and an erroneous assumption made without any attempt to investigate the truth in that behalf. Presidential declaration, subject to amendment by Parliament being conclusive, no addition to it or declaration of castes/tribes or sub-castes/parts of or groups of tribes or tribal communities is permissible.
***
10. The entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. ..Therefore, it is no wonder that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and the certificates are issued on its basis.
The father of the appellants admittedly described himself in ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 14 8-WPST-11536.2021.doc 1943 and thereafter as a Hindu Koli. In other words, his status was declared a Koli by caste and Hindu by religion. Kolis are admittedly OBCs. ..On the other hand, the entries in his school and college registers as Hindu Koli positively belies the claim of his social status as Scheduled Tribe.
***
11. ...This school record, comparatively, is not only the oldest but it being the record pertaining to candidate's father's admission to school prior to independence, it carries greatest probative evidentiary value. The caste of the person, as stated earlier, is determined on the basis of the caste of their parents, basically for the reasons that the caste is acquired by birth. When the school record of the candidate's father shows his caste as Koli, the documents which the candidates have produced showing their caste as Mahadeo Koli cannot be relied upon. .. Spurious tribes have become a threat to the genuine tribals, and the present case is a typical example of reservation of benefits given to the genuine claimants being snatched away by spurious tribes.
*** The Apex Court has thus categorically rejected the contention that historically entry of "Koli" appear in the records of claimants of Mahadeo Koli scheduled tribe status and such entries should not be considered as fatal to the claim of belonging to Mahadeo Koli scheduled tribe .
14. The learned AGP submitted that Mahadeo Koli and Koli are different and entry of Koli in the documents of pre constitution period is adverse to the claimants. The learned AGP submitted that the observation of the Scrutiny Committee " It is true that generally caste entries in the various old records of real Mahadeo Koli, Scheduled Tribe people are also found as Koli and therefore the Scrutiny Committee deeply verified the affinity test" is incorrect and ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 15 8-WPST-11536.2021.doc the Scrutiny Committee has taken a contrary view in almost all cases. The learned counsel for the Petitioner submits that even today validity certificates with such reasoning (reproduced above) are being issued. The learned counsel for the Petitioner submitted that the Scrutiny Committee cannot be allowed to pick and choose. That the Scrutiny Committee is taking contrary views cannot inure to the benefit of the Petitioner, but it is certainly a matter of inquiry for the State Government.
15. As a result, there is no error in the view taken by the Scrutiny Committee in the present case and its approach to look into the evidence afresh and to issue notices to Petitioner's father and others. Besides the validity certificates relied upon by the Petitioner, which were issued contrary to the law laid down by the Apex Court, no other evidence was produced by the Petitioner to show that the Petitioner belongs to Mahadeo Koli- Scheduled Tribe.
16. The Petitioner had taken admission on the seat meant for a Scheduled Tribe candidate. Section 10 of the Act of 2000 states that whoever, not a scheduled tribe secures admission in any educational institution against a seat reserved for a scheduled tribe by producing a false Caste Certificate shall, on cancellation of the caste certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution and other benefits derived by virtue of such admission shall be withdrawn forthwith. Thus having concluded the order of the Scrutiny Committee invalidating the caste ::: Uploaded on - 09/07/2021 ::: Downloaded on - 18/09/2021 17:18:46 ::: skn 16 8-WPST-11536.2021.doc certificate of the Petitioner is legal and proper; there can be no direction to the Respondent- College to declare the results of the Petitioner. No equities arise in favour of the Petitioner.
17. Before parting, it needs to be highlighted that, in the impugned order, the Scrutiny Committee has blamed only the Petitioner's father and cousins in obtaining the validity certificates. According to us, more serious is the approach of the Scrutiny Committee in applying a test which is expressly rejected by the Apex Court. This is a matter for the State Government to investigate and find out how such contrary stands are being taken.
18. The Writ Petition is dismissed.
19. The Registry and the Office of the Government Pleader will send a copy of this order and the petition to the Principal Secretary, Tribal Development Department, Mantralaya personally for his perusal and necessary action.
(C.V. BHADANG, J.) (NITIN JAMDAR, J.)
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