Bombay High Court
Shri Prakash S/O Dashrath Kumbhare vs State Of Mah. Thr. Secretary, Tribal ... on 3 July, 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.4283 OF 2005
Shri. Prakash s/o Dashrath Kumbhare,
Aged about : 30 years, Occu. Service,
R/o Umarkhed, Tq. Umarkhed,
Distt. Yeotmal. ... PETITIONER
V E R S U S
1. State of Maharashtra,
Through Secretary,
Tribal Development Deptt.
Mantralaya, Mumbai 440 032.
2. The Vice-Chairman,
Scheduled Tribes Caste Certificates
Scrutiny Committee,
Amravati Division, Amravati.
3. The Chief Officer,
Nagar Parishad,
Umarkhed, Yeotmal. ... RESPONDENTS
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None for the petitioner.
Shri Amit Madiwale, Assistant Government Pleader for
respondent-State.
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CORAM:- R. K. DESHPANDE &
ARUN D. UPADHYE, JJ.
DATED : 03/07/2018.
ORAL JUDGMENT : (PER R. K. DESHPANDE, J.)
1. By an order dated 4th July, 2005 passed by the Committee for Scrutiny and Verification of Tribe Claims at Amravati, the claim of the petitioner for Halba, Halbi Scheduled Tribe, which is an entry at Sr.No.19 in the Constitution (Scheduled ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:58:11 ::: 2 204-J-WP-4283-05.odt Tribes) Order, 1950 has been rejected. The petitioner apprehended termination from the post of Peon in the Nagar Parishad, Umerkhed as he was appointed against the post reserved for Scheduled Tribe Category. On 17th November, 2005, this Court admitted the matter and directed maintenance of status quo. The order of status quo continues till this date. Probably, the petitioner might have been continued in the employment and he had rendered about 7 years of service on the date of his invalidation of caste claim by the Committee, as his appointment was on 18/04/1998.
2. The petitioner produced before the Committee 14 documents in support of his claim as a candidate belonging to Halba / Halbi and the document No.2 which is the Birth Registration Extract of a male child born to one Zalba was recorded as "Halbi" entered on 09/11/1939. The another document produced was the Death Registration in respect of the same person, who is the grand-father of the petitioner in which the caste "Halbi" entered on 20/12/1958. All other documents produced indicate the caste as "Halba" or "Halbi" and there is not a single document available on record of the Committee or even ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:58:11 ::: 3 204-J-WP-4283-05.odt obtained the Police Vigilance Cell indicating the caste of the petitioner other than "Halba" / "Halbi".
3. The Committee rejects the claim of the petitioner on the basis of documents recording the findings in respect of the old documents as under :-
A. The document quoted at Sr. No.5, 6 & 7 are copies of school record in respect of the candidate, caste recorded as Halba. In view of Vigilance Cell report and affinity test these documents are rejected.
B. The documents quoted at Sr. No.2, 3, 8, 9, 10 & 11 are copies of birth and death registration in respect of paternal side relatives of the candidate showing their caste as Halba / Halbi. In cases where synonymous entries are there i.e. Scheduled Tribe synonymous with other, then in such cases old documentary of caste has no relevance because the synonymous caste which is not Scheduled Tribe also show the same entry even prior to reservation proclamation. Therefore as per the settled principles of Law, the test of characteristic, customs, ethnic linkage etc. plays vital role. Therefore in such cases only the documentary evidence can not be relied upon. Hence on the basis of Vigilance Cell report, affinity test and affinity placed at the time of hearing these documents are rejected.
4. The Committee in categorical terms records the finding that the entries in the documents are either of Halba or Halbi. Undisputedly, the documents pertain to the blood relatives of the petitioner. The document of 09/11/1939 in the name of ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:58:11 ::: 4 204-J-WP-4283-05.odt child born to blood relative Zalba indicates the caste / tribe as 'Halbi'. There is not even a single document showing the caste / tribe of the petitioner or his blood relative other than 'Halba, Halbi'. In the decision of the Hon'ble Apex Court in the case of Anand Vrs. Committee for Scrutiny and Verification of Tribe Claims and others, reported in (2012) 1 SCC 113, the guidelines are laid down in para Nos.22 and 23 to test the claim and same are produced below :-
"22. It is manifest from the aforeextracted paragraph that 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, we feel that 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 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;::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:58:11 :::
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(ii) While applying the affinity test, which focuses on the ethnological connections with the Scheduled Tribe, a cautions 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 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 not be the sole criteria to reject a claim.
23. Needless to add that the burden of proving the caste claim is upon the applicant. He has to produce all the requisite documents in support of his claim. The Caste Scrutiny Committee merely performs the role of verification of the claim and therefore, can only scrutinise the documents and material produced by the applicant. In case the material produced by the applicant does not prove his claim, the Committee cannot gather evidence on its own to prove or disprove his claim."
5. In view of the aforesaid decision of the Apex Court, the genuineness of the caste claim has to be considered on thorough examination of the documents and greater reliance has ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:58:11 ::: 6 204-J-WP-4283-05.odt to 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. The affinity test is to be used only to corroborate the documentary evidence and it cannot be the sole criteria to reject the claim. The burden of proving the caste claim is upon the claimant. The Scrutiny Committee merely performs the role of verification of the claim and, therefore, can only scrutinise the documents and material produced by the applicant. The Committee cannot gather the evidence on its own to prove or disprove the claim. In the present case, the documents having probative value being produced on record indicate the caste of the petitioner as 'Halbi', the Committee should have accepted the same. The petitioner has established his claim for 'Halba/Halbi Scheduled Tribe' on the basis of the documentary evidence.
6. In the decision of the Apex Court in the case of State of Maharashtra v. Milind and others, reported in 2001(1) Mh.L.J. 1, the Constitution Bench dealt with the claim of 'Halba', 'Halbi', which is an Entry at Serial No.19 in the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:58:11 ::: 7 204-J-WP-4283-05.odt Maharashtra. While reversing the view taken by the High Court, it was held that Clause (2) of Articles 341 or 342 of the Constitution of India does not permit any one to seek modification of the said Order by leading evidence that caste/tribe (A) alone is mentioned in the Order but caste/tribe (B) is also a part of caste/tribe (A) and as such caste/tribe (B) should be deemed to be a Scheduled Caste/Scheduled Tribe as the case may be. It holds that it is only the Parliament which is competent to amend the Orders issued under Articles 341 and 342.
7. What we understand from the decision of the Apex Court in Milind's case is that the decision of the High Court holding that it was permissible to enquire whether 'Halba-Koshti' is a sub-division or synonym of main tribe 'Halba, Halbi' as per Entry No.19 in the Scheduled Tribes Order was wrong. The first thing which is required to be seen is the exact entry in the Scheduled Tribes Order, which, in the present case, is also 'Halba, Halbi'. The Entry No.19 'Halba, Halbi' has to be read as it is and no enquiry is permissible and no evidence can be let in to establish that 'Koshti' or 'Halba-Koshti' are the part or group within the tribe 'Halba, Halbi', though they are not specifically included in the Presidential ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:58:11 ::: 8 204-J-WP-4283-05.odt Order. It was held that the earlier decisions of the Apex Court in Bhaiya Ram Munda and Dina's cases, relied upon by the High Court for its view that the evidence is admissible for the purpose of showing what entry in the Presidential Order was intended to be while stating that entry in the Presidential order, were overruled.
8. In view of the aforesaid decision of the Apex Court, it was not permissible for the Committee to hold that in cases where synonymous entries are there, i.e. Scheduled Tribes synonymous with others, then in such cases old documentary evidence of caste has no relevance, because the synonymous caste, which is not Scheduled Tribe, also shows the same entry even prior to reservation proclamation. Such a finding of the Committee is without jurisdiction, as it amounts to excluding certain classes of 'Halba', 'Halbi' from the benefit of Entry No.19 in the Constitution (Scheduled Tribes) Order.
9. In view of the above, we set aside the order dated 04/07/2005 passed by the Committee for Scrutiny and Verification of Tribe Claims at Amravati. It is declared that the ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:58:11 ::: 9 204-J-WP-4283-05.odt petitioner has established his claim for Halba / Halbi, which is an entry at Sr.No.19 in the Constitution (Scheduled Tribes) Order, 1950 and accordingly, the Committee is directed to issue Caste Validity Certificate in the name of the petitioner, within a period of 15 days from today. There shall be no order as to costs.
(Arun D. Upadhye, J.) (R.K. Deshpande, J.)
Choulwar
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