Bombay High Court
Amey S/O Kiran Pachabhaiye vs The State Of Maharashtra, Through Its ... on 1 March, 2019
Author: Vinay Joshi
Bench: R. K. Deshpande, Vinay Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 336/2019
PETITIONER:- Amey S/o Kiran Pachabhaiye,
aged about 26 yrs., Occ. Student,
R/o. Pushpanjali Apartment, Flat No.315,
Reshimbagh, Nagpur.
VERSUS
RESPONDENTS: 1. The State of Maharashtra
through its Secretary,
Tribal Development Department
Mantralaya, Mumbai - 32.
2. The Commissioner, Tribal
Research and Training Institute,
Maharashtra State, 28, Queens Park,
Pune - 440 001.
3. The Scheduled Tribe Caste Certificate
Scrutiny Committee, Amravati, through
its Chairman/Member Secretary, Irwin
Chowk, Amravati.
4. Rashtrasant Tukdoji Maharaj,
Nagpur University, Nagpur,
through its Registrar.
5. The Principal,
Suryodaya College of Engineering
Technology, Vihirgaon, Umred Road,
Nagpur.
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Shri Rahul. N. Ghuge, Advocate for petitioner.
Shri Amit A. Madiwale, Assistant Government Pleader for respondent Nos. 1 to
3.
Shri Manish Shukla, Advocate h/f Mrs. A.S. Bhandarkar for respondent No.4.
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CORAM: R. K. DESHPANDE AND
VINAY JOSHI, JJ.
DATE OF JUDGMENT :- 01.03.2019
JUDGMENT (PER VINAY JOSHI, J.)
Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties.
2. The petitioner has called in question the order dated 30.08.2018 passed by respondent No. 3 - Scheduled Tribe Caste Certificate Scrutiny Committee, Amravati which has invalidated the petitioner's caste claim of "Halbi" Scheduled Tribe which is an entry at Serial No. 19 in the Constitution (Scheduled Tribes) Order, 1950.
3. The petitioner claims to be belonging to "Halbi" Scheduled Tribe. The Sub-Divisional Officer, Achalpur has issued caste certificate dated 31.07.2017 in favour of the petitioner. The petitioner secured admission in the respondent No. 5, College in reserved category, in consequence, petitioner's caste claim was forwarded by the College to the Committee for verification. The petitioner has placed reliance on various documents including pre-constitutional documents to support his caste claim. The petitioner has also relied on previous certificate of validity in favour of his blood relatives. The caste claim was inquired through Vigilance Cell and on scrutiny, the Committee has rejected the ::: Uploaded on - 07/03/2019 ::: Downloaded on - 12/03/2019 23:12:18 ::: 3 19jgwp336.19 .odt petitioner's caste claim vide impugned order.
4. The petitioner has relied on 27 documents to support his caste claim. The petitioner's grievance is about sidelining his pre- constitutional documents by the Committee. Petitioner would contend that the Committee has given unnecessary weightage to two documents which are collected by the Vigilance Cell. According to petitioner, two documents collected by the Vigilance Cell in respect of Mahadeo Vitthoba Panchabhaiye of the year 1940 and 1948 are erroneous. The Vigilance Cell has not disclosed the source of those documents. Moreover considering the date of birth of Mahadeo, there is discrepancy in those documents. It is urged that the Committee failed to appreciate documentary evidence, as well as wrongly held that the petitioner failed in affinity test. On perusal of impugned order, it reveals that the Committee misdirected itself by referring so many precedents. Main part of the impugned order is occupied by various citations without touching to the facts of the case. The Committee has specified the names of the persons who have given up their claims for "Halbi" Scheduled Tribe. Though previous validities were tendered, the Committee has not considered the same for the reasons which would not sustain.
5. The petitioner has tendered school leaving certificate of his great-grand father namely Vithu Gangaramji Panchbhaiye dated ::: Uploaded on - 07/03/2019 ::: Downloaded on - 12/03/2019 23:12:18 ::: 4 19jgwp336.19 .odt 25.10.1931 which shows his caste as "Halbi". The petitioner relied on school transfer certificate of his grand father dated 21.10.1931 showing his caste as "Halbi". Likewise school transfer certificate of Narayan Vithuji Panchbhaiyye dated 20.06.1923 is tendered of "Halbi" caste. Petitioner also produced school transfer certificate of his cousin grand father namely Bhagwant Vithu Panchabhaiyye dated 03.04.1944 showing his caste as "Halbi". It reveals that petitioner in response to show-cause notice has appeared and tendered some additional documents to support the claim of "Halbi" Scheduled Tribe. The Committee has not considered pre-constitutional documents in proper perspective.
6. The Committee has assigned the reason of area restriction, which is now removed. Therefore, the said reason does not stand to reason. So far as the issue of affinity test, we may advert to the decision of the Hon'ble Supreme Court in case of Anand .vrs. Committee for Scrutiny and Verification of Tribe Claims 2011 (6) Mh.L.J. (SC) 919, wherein in paragraph 22, it has been held that while dealing with the 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. It adds that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of ::: Uploaded on - 07/03/2019 ::: Downloaded on - 12/03/2019 23:12:18 ::: 5 19jgwp336.19 .odt oral evidence, for which an opportunity has to be afforded to the applicant. In respect of affinity test, the Apex Court has laid down that a cautious approach has to be adopted and with the migration, modernization 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. It holds that the affinity test may not be recorded as litmus test for establishing the link of the applicant with the Scheduled Tribe. The affinity test is to be used to corroborate the documentary evidence and it is not to be used as the sole criteria to reject a claim.
7. The petitioner has submitted three previous caste validities of his cousin brother and sister. Pertinent to note that caste validity to petitioner's cousin namely Vineet was issued vide order passed by this Court in Writ Petition No. 3334/2008 and validity of cousin brother Navin was issued by virtue of order passed by this Court in Writ Petition No. 2656/2009. Thus, it reveals that already previous caste validities were undergone judicial scrutiny. At this juncture, it is necessary to refer to the decision of this Court in case of in case of Apoorva Vinay Nichale .vrs. Divisional Caste Certificate Scrutiny Committee No.1 and others 2010 (6) Mh.L.J. 401, wherein this Court held as under :
(Para 7) ::: Uploaded on - 07/03/2019 ::: Downloaded on - 12/03/2019 23:12:18 ::: 6 19jgwp336.19 .odt "7. We thus come to the conclusion that when during the course of enquiry the candidate submits a caste validity certificate granted earlier certifying that a blood relation of the candidate belongs to the same caste as that claimed by the applicant, the Committee may grant such certificate without calling for Vigilance Cell Report. However, if the committee finds that the earlier caste certificate is tainted by fraud or is granted without jurisdiction, the Committee may refuse to follow and may refuse to grant certificate to the applicant before it."
The relevant portion in para 9 of the said decision is also reproduced below :
"9. ... In the circumstances, we are of the view that the committee which has expressed a doubt about the validity of caste claim of the petitioner and has described it as a mistake in its order, ought not to have arrived at a different conclusion. The matters pertaining to validity of caste have a great impact on the candidate as well as on the future generations in many matters varying from marriage to education and enjoyment, and therefore where a committee has given a finding about the validity of the caste of a candidate another committee ought not to refuse the same status to a blood relative who applies. A merely different view on the same facts would not entitle the committee dealing with the subsequent caste claim to reject it. There is, however, no doubt as observed by ::: Uploaded on - 07/03/2019 ::: Downloaded on - 12/03/2019 23:12:18 ::: 7 19jgwp336.19 .odt us earlier that if a committee is of the view that the earlier certificate is obtained by fraud it would not be bound to follow the earlier caste validity certificate and is entitled to refuse the caste claim and also in addition initiate proceedings for cancellation of the earlier order. In this view of the matter, we are of the view that the petition must succeed. Rule is made absolute in above terms. The Caste Scrutiny Committee is directed to furnish the caste validity certificate to the petitioner."
The same has been reiterated by this Court in later decision in case of Gitesh Narendra Ghormare .vrs. Scheduled Tribe Certificate Scrutiny Committee, Nagpur and others (2018 (4) Mh.L.J. 933).
8. In substance, there are previous validities of blood relatives in the family. No plea is taken that they are obtained by fraud or misrepresentation. There exists pre-constitutional documents having high probative value relating to family members. Despite that, on perfunctory reasons the rejection is accorded which would deprive the benefits of tribal claim to petitioner who is shown to be of "Halbi" Scheduled Tribe from his forefathers that too right from the year 1923.
9. In view of that, the reasons accorded by the Scrutiny Committee for rejection would not sustain, hence, we allow the Writ ::: Uploaded on - 07/03/2019 ::: Downloaded on - 12/03/2019 23:12:18 ::: 8 19jgwp336.19 .odt Petition and pass the following order :
(i) Writ Petition No. 336 of 2019, is allowed.
(ii) The order passed by the Scheduled Tribe Certificate
Scrutiny Committee, Amravati Division, Amravati on
30.08.2018, impugned in this petition, is hereby quashed
and set aside.
(iii) It is declared that petitioner has established his claim for
"Halbi" - Scheduled Tribe which is an entry at Sr.No.19 of Constitution (Scheduled Tribes) Order, 1950. Respondent Scrutiny Committee is accordingly, directed to issue validity certificate in his name, within a period of three months from the date of receipt of this order.
(iv) Petitioner would be entitled to all the benefits of Scheduled Tribe.
10. Rule is made absolute in aforesaid terms, with no order as to cost.
JUDGE JUDGE
Gohane
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