Shweta Balaji Isankar Through Father ... vs The State Of Maharashtra And Others on 20 June, 2017

[Cites 13, Cited by 19]

Bombay High Court

Shweta Balaji Isankar Through Father ... vs The State Of Maharashtra And Others on 20 June, 2017

2 Rule. With the consent of the parties, petitions are taken up for final disposal at the stage of admission. 3 This avoidable litigation is generated as a result of an inadvertent error committed by the concerned authorities while issuing tribe certificates to the petitioners. The scrutiny ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:10:59 ::: {387} wp 6263.17 & others.odt committee has also adopted a hyper technical approach and directed invalidation of the tribe certificates on technical grounds by compelling hundreds of petitioners to approach this Court and thereby putting them to inconvenience including the financial loss on account of approach to this Court by presenting the petitions. The hyper technical approach adopted by the scrutiny committee, apart from facilitating clearance of hundreds of matters pending before the scrutiny committee, has added to number of dockets before the High Court.

4 In most of the petitions, the tribe certificates issued to the petitioners by the respective Sub-divisional Officers (SDOs) or the Executive Magistrates, as the case may be, have been cancelled and confiscated by the scrutiny committee on account of occurrence of error in correctly recording the spelling of the concerned tribe. In case of 'Mannervarlu 'tribe, the certificates have been issued recording incorrect spelling as ' Mannerwarlu '. Similarly in certain matters, while issuing certificates by the concerned authority, in favour of the petitioners belonging to ' Kolimahadev ' scheduled tribe, an inadvertent error has occurred in recording the name of the tribe as 'Kolimahadeo'. Similarly in few matters, there is an inadvertent error in respect of recording ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:10:59 ::: {388} wp 6263.17 & others.odt of the name of the tribe 'Tadvi' by the concerned competent authority. The tribe has been wrongly recorded as "Tadavi '. 5 While directing invalidation of the tribe certificates, the scrutiny committee has placed reliance on the Judgment in the matter of State of Maharashtra Vs. Milind & others (2001, 1 SCC 4). The Honourable Supreme Court observed in the aforesaid matter that:-

"1 it is not at all permissible to hold any enquiry or let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even through it is not specifically mentioned in the concerned entry in the Constitution (Scheduled Tribes) Orders, 1950.

2 The Scheduled Tribe Order must be read as it is. It is not even permissible to say that a tribe, sub- tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the scheduled tribes Order if they are not so specifically mentioned in it. "

6 Reliance is also placed by the scrutiny committee on certain observations made by the High Court in the matter of Ramakant Bajirao More Vs. Member Secretary, Scheduled Tribe ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:10:59 ::: {389} wp 6263.17 & others.odt Certificate Scrutiny Committee, Nasik and others, (Writ Petition No.7162 of 2010, decided on 14 th October, 2010), wherein, this Court has observed that, " it is a settled position of law that entries in the Presidential Order are required to be taken as it is and it is not permissible for any one to add, alter or amend the said entries ".

7 In the matter of State of Maharashtra Vs. Milind and others, reported in (2001) 1 SCC 4, there were two questions taken up for consideration:

(1) Whether at all, it is permissible to hold enquiry and let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned entry in the Constitution (Scheduled Tribes) Order, 1950?

(2) Whether 'Halba Koshti' caste is a sub-tribe within the meaning of Entry 19 (Halba/Halbi) of the said Scheduled Tribes Order relating to State of Maharashtra, even though it is not specifically mentioned as such?

8 The Division Bench of this Court, in the matter, held that it ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:10:59 ::: {390} wp 6263.17 & others.odt was permissible to enquire as to whether the subdivision of a tribe was part and parcel of the tribe mentioned therein and that 'Halba-Koshti' is a subdivision of main tribe 'Halba / Halbi' as per Entry No.19 in the Scheduled Tribes Order, applicable to Maharashtra. The State Government challenged the said decision of the High Court in the Supreme Court. The Constitution Bench in Milind's matter, referring to earlier Constitution Bench judgment of the Supreme Court in the matter of B. Basavalingappa Vs. D. Munichinappa, reported in AIR 1965 SC 1269 and in the matter of Bhaiya Lal Vs. Harikishan Singh, reported in AIR 1965 SC 1557, in paragraphs no.16 to 19, has observed thus:

16 In (B. Basavalingappa v.D. Munichinnappa) 3, A.I.R. 1965 S.C. 1269 : 1965(1) S.C.R. 316, a Constitution Bench of this Court has held thus:-

"It may be accepted that it is not open to make any modification in the order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also a part of caste A and therefore must be deemed to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in the Order [see Aray (Mala) Dakkal (Dokkhalwar) etc.] Therefore, ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:10:59 ::: {391} wp 6263.17 & others.odt generally speaking it would not be open to any person to lead evidence to establish that caste (in the example quoted above) is part of caste A modified in the order. Ordinarily, therefore it would not have been open in the present case to give evidence that the Voddar caste was the same as the Bhovi caste specified in the Order for Voddar caste is not mentioned in brackets after the Bhovi caste in the order."

(emphasis supplied) 17 Thereafter looking to the peculiar circumstances of the case, the Court went on to say that:

"The difficulty in the present case arises from the fact (which was not disputed before the High Court) that in the Mysore State as it was before the re- organisation of 1956 there was no caste known as Bhovi at all. The Order refers to a scheduled caste known as Bhovi in the Mysore State as it was before 1956 and therefore it must be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the Order when the Order mentions the caste Bhovi as a scheduled caste. It cannot be accepted that the President included the caste Bhovi in the Order though there was no such caste at all in the Mysore State as it existed before 1956. But when it ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:10:59 ::: {392} wp 6263.17 & others.odt is not disputed that there was no caste specifically known as Bhovi in the Mysore State before 1956, the only course open to courts to find out which caste was meant by Bhovi is to take evidence in that behalf. If there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste. But when the undisputed fact is that there was no caste specifically known as Bhovi in the Mysore State as it existed before 1956 and one finds a caste mentioned as Bhovi in the Order, one has to determine which was the caste which was meant by that word on its inclusion in the Order. It is this peculiar circumstance therefore which necessitated the taking of evidence to determine which was the caste which was meant by the word 'Bhovi' used in the Order when no caste was specifically known as Bhovi in the Mysore State before the re- organisation of 1956. "

18 Again a Constitution Bench of this Court in a later decision in (Bhaiya Lal v. Harikishan Singh) 4, A.I.R.1965 S.C. 1557 : 1965(2) S.C.R. 877, did not accept the plea of the appellant that although he was not a chamar, as such he could claim the same status by reason of the fact that he belonged to Dohar caste which is sub-caste of Chamar. Even after referring to the case of Basavallingappa ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:10:59 ::: {393} wp 6263.17 & others.odt (supra) it was held that an enquiry of that kind would not be permissible in the light of the provisions contained in Article 341 of the Constitution. In that case the appellant's election was challenged inter alia on the ground that he belonged to the Dohar caste which was not recognized as a Scheduled Caste for the district in question and so his declaration that he belonged to the Chamar caste which was a Scheduled Caste was improper and was illegally accepted by the Returning Officer. The Election Tribunal declared that the election was invalid. On appeal the High Court confirmed the same. This Court also dismissed the appeal pointing out that the plea that the Dohar Caste is a sub-caste of the Chamar Caste, could not be entertained in view of the Constitution Scheduled Castes Order, 1950 issued by the President under Article 341 of the Constitution. It is also stated that in order to determine whether or not a particular caste is a Scheduled Caste within the meaning of Article 341, one has to look at the public notification issued by the President in that behalf. The notification referred to Chamar, Jatav or Mochi. The Court observed that the enquiry which the Election Tribunal could hold was whether or not the appellant is a Chamar, Jatav or Mochi and held thus:-

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{394} wp 6263.17 & others.odt "The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub-caste of the Chamar caste, cannot be accepted. It appears to us that an enquiry of this kind would not be permissible having regard to the provisions contained in Article

341."

(emphasis supplied) 19 Referring to the case of Basavalingappa (supra) the Court explained thus:

"In the case of B. Basavalingappa V D. Munichinnapa & Ors., this Court had occasion to consider a similar question. The question which arose for decision in that case was whether respondent No.1, though Voddar by caste, belonged to the scheduled caste of Bhovi mentioned in the Order, and while holding that an enquiry into the said question was permissible, the Court has elaborately referred to the special and unusual circumstances which justified the High Court in holding that Voddar caste was the same as the Bhovi caste within the meaning of the Order, otherwise the normal rule would be: "It may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example that though caste A alone is ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:10:59 ::: {395} wp 6263.17 & others.odt mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A". That is another reason why the plea made by the appellant that the Dohar caste is a sub caste of the Chamar caste and as such must be deemed to be included in the Order, cannot be accepted."

(emphasis supplied) "

9 In the matter of Palghat Jilla Thandan Samudhaya Samrakshna Samithi Vs. State of Kerala, reported in 1994 (1) SCC 359, the principle question that arose for consideration in regard to the validity of the decision of the State of Kerala not to treat members of Thandan community belonging to erstwhile Malbar District including the present Palghat District of the State of Kerala, as the members of the Scheduled Castes. In the Writ Petition, petitioners prayed that the State Government should continue to grant to members of the Thandan community belonging to erstwhile Malbar District, including the present Palghat District, all the benefits due to a caste included in the Schedule to the Constitution (Schedule Caste) Order. The High Court directed the State Government to conduct a public enquiry to determine whether there was a community called 'Thandan' distinct from Ezhavas/Thiyyas in Palghat District and in areas ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:11:00 ::: {396} wp 6263.17 & others.odt other than in the erstwhile Chittur Taluka. The Honourable Supreme Court observed that the Thandan community in the instant case having been listed in the Scheduled Castes Order, as it now stands, it is not open for the State Government or, indeed, to this Court to embark upon an enquiry to determine whether a section of Ezhavas/Thiyas which was called Thandan in the Malbar area of the State was excluded from the benefits of the Scheduled castes order. In paragraph Nos.18 and 19 of the Judgment, the Honourable Supreme court has observed thus:-

"18. These judgments have no doubt that the Scheduled caste Orders has to be applied as it stands and no enquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it. No action to modify the plain effect of the Scheduled Caste Orders, except as contemplated by Article 341, is valid.

19. The Thandan community in the instant case having been listed in the Scheduled Caste Order as it now stands, it is not o pen to the State Government or, indeed, to this Court to embark upon an enquiry to determine whether a section of Ezhavas/Thiyyas which was called Thandan in the Malbar area of the State was excluded from the benefits of the Scheduled Caste Order. "

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{397} wp 6263.17 & others.odt 10 In the matter of Nityanand sharma Vs. State of Bihar (1996 (3) SCC 576), an important question of constitutional law concerning the power of the Court to declare a particular tribe to be Scheduled Tribe under Scheduled Castes and Scheduled Tribes Order, 1950, as amended by the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976 primarily arose for consideration. The appellant before the Supreme Court was in service of State of Bihar and belonging to Lohar caste and claims status as S.T. under the Act and the Constitutional Order and sought promotion on that basis, as a member belonging to S.T.. According to the appellant, Lohar community was included in the Schedule under the Act as reflected in the Hindi version of the Order and thereby they are entitled to be recognized as ST. It was revealed that Lohara or Lohras are different from Lohar in Bihar as Loharas as noticed are ranked with Koiris and Kurmis whereas Lohra or Loharas are merely sub-castes, a sept of Mundas in Chotanagpur or sub-tribes or Assurs who are Scheduled Tribes. The supreme Court has observed in paragraph Nos.18 and 19 of the judgment as quoted below:-

" 18. It is seen that in the Second Schedule in part III of the act, as extracted herein before, Lohar was not included as a Scheduled Tribe. It is only, as ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:11:00 ::: {398} wp 6263.17 & others.odt evidenced from the translated version, that the community Lohar came to be wrongly translated for the word Lohra or Lohara and shown to have been included in the Second Schedule, Part III, applicable to Bihar State. Mr. B.B Singh, therefore, is right in placing before us the original version in English and the translated version.

19 Article 348(1)(b) of the Constitution provides that notwithstanding anything in Part II (in Ch.II Articles 346 and 347 relate to regional languages) the authoritative text of all Bills to be introduced and amendments thereto to be moved in either House of Parliament .... of all ordinances promulgated by the President .... and all orders, rules, regulations and bye-laws issued under the Constitution or under any law made by Parliament, shall be in the English language. By operation of sub-article (3) thereof with a non obstante clause, where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the governor of the State in the official Gazette of that State shall be deemed to be the authoritative text thereof in the English language ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:11:00 ::: {399} wp 6263.17 & others.odt under this article. Therefore, the act and the Schedule thereto are part of the act, as enacted by Parliament in English language. It is the authoritative text. When the Schedules were translated into Hindi, the translator, wrongly translated Lohara as Lohar omitting the letter a while Lohra is written as Mentioned in English version. It is also clear when we compare Part XVI of the Second Schedule relating to the State of West Bengal, the word Lohar both in English as well as in the Hindi version was not mentioned. Court would take judicial notice of Acts of Parliament and would interpret the Schedule in the light of the English version being an authoritative text of the act and the Second Schedule. "

11 In the instant matters, it is not the contention of anybody that the tribe Mannerwarlu or Koli Mahadeo or Tadavi are different tribes or castes than the entries in respect of the tribe Manervarlu or Koli Mahadev or Tadvi as recorded in the Constitutional Order. Admittedly, there is an inadvertent spelling mistake committed by the certificate issuing authority in recording the correct spelling of the tribe in the caste certificate. The inadvertent error could have been got corrected by keeping the matter pending by the scrutiny committee.

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{400} wp 6263.17 & others.odt 12 Section 4 of the Maharashtra Scheduled Castes, De-notified Tribes (Vimukta Jatis), Nomadic tribes, Other Backward Classes and Special Backward Category (Regulation of issuance and Verification of ) Caste Certificate Act, 2000 (herein after referred to as The Act of 2000) relates to issuance of caste certificate by the competent authority. The competent authority may, on an application made to it, under section 3, after satisfying itself about the genuineness of the claim and by following the procedure as prescribed, issue a Caste Certificate within such time limit and in such form as may be prescribed or reject the application for the reasons to be recorded in writing. It is thus clear that the competent authority is liable to satisfy itself as regards genuineness of the claim of the individual as belonging to a particular caste or tribe. In the instant matters, there is no objection raised as regards genuineness of the claim of any of the petitioners. However, a defect in respect of recording of spelling mistake in caste certificate is pointed out. 13 Section 5 of the Act of 2000 provides for an appeal against an order of competent authority in rejecting the request for issuance of the caste or tribe certificate. Under Rules i.e. The Maharashtra Scheduled Tribes (Regulation of Issuance and ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:11:00 ::: {401} wp 6263.17 & others.odt Verification of ) Certificate Rules, 2003, the scrutiny committee is empowered to decide the appeals against the orders passed by the competent authority, rejecting requests for issuance of caste/tribe certificate. The Scrutiny Committee constituted under the Rules of 2003 is also empowered to verify the tribe certificate and issue validation certificates. Rule 11 of the Rules 2003 relate to verification of schedule tribe certificate by Scrutiny committee. Section 6 of the Act of 2000 mandates the Government to constitute, by notification in the official gazette, one or more scrutiny committee(s) for verification of caste certificates issued by the Competent authorities under sub-section (1) of section 4 specifying in the said notification the functions and the area of jurisdiction of each of such scrutiny Committee or Committees. The scrutiny committee is expected to take decision in respect of validation claim as belonging to ST. Sub-rule 8 of Rule 12 provides that if the scrutiny committee on the basis of vigilance cell report and other documents available, is not satisfied about the claim of the applicant, the committee shall issue a show cause notice to the appellant and also serve the copy of the report of the vigilance officer by registered post with acknowledgment due. A copy shall also be sent to the Head of the Department concerned, if necessary. The notice shall indicate that the ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:11:00 ::: {402} wp 6263.17 & others.odt representation or reply, if any, should be made within fifteen days from the date of receipt of the notice and in any case not more than thirty days from the date of receipt of the notice. The scrutiny committee, in view of sub rule 9 is expected, on being satisfied regarding genuineness of the claim, to issue validation certificate in form 'G'.

14 It is thus clear that Rules require the scrutiny committee to consider the claim of an individual applicant as belonging to a particular tribe. In the instant matters, the scrutiny committee has not investigated as regards genuineness of claim of any of the petitioners as belonging to ST, however, has proceeded to reject the proposals on hyper technical reasons i.e. spelling mistakes occurring in the tribe certificates issued by the Competent Authority. It was open for the scrutiny committee to get the errors, as regards the spelling of a particular tribe, corrected by issuing directives to the concerned competent authority. The petitioners could have been directed to get the errors ratified by keeping the matters pending. There was absolutely no reason for the scrutiny committee to reject the claim of each of the petitioners on hyper technical grounds. The Judgments of the Honourable supreme Court quoted by the scrutiny committee and ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:11:00 ::: {403} wp 6263.17 & others.odt referred as above, arise out of totally different set of facts and are not relevant for determination of issue or the inadvertent error that has crept in while issuing tribe certificates by competent authority. The scrutiny committees are expected to deal with the merits of the contentions and find out as to whether claim raised by an individual applicant as belonging to a particular tribe is correct or not. The scrutiny committee shall not reject the matters on hyper technical grounds such as occurrence of spelling mistake in recording the name of the tribe in the certificate. The competent authority, while issuing certificate has correctly recorded the entry number relating to a particular tribe occurring in the schedule to the constitutional order. However, as regards the inadvertent spelling mistake, the scrutiny committee ought to have got it corrected by issuing directions to the concerned competent authority or by granting liberty to the petitioners to get mistake ratified by approaching concerned issuing authority. It is noticed by us that, on earlier occasions also, the scrutiny committee had rejected hundreds of proposals for such technical error in recording the correct name of the tribe as Mahadevkoli instead of Kolimahadev. This Court was required to issue necessary directions to safeguard the interests of the certificate holders. The practice adopted by the scrutiny committee in ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:11:00 ::: {404} wp 6263.17 & others.odt rejecting the claims for hyper technical errors cannot be approved.

15 For the reasons recorded above, the writ petitions are allowed. The orders passed by the scrutiny Committee directing invalidation of the caste certificates are quashed and set aside. 16 The scrutiny committee shall return original tribe certificates produced by the individual petitioners to them within four weeks from today. Each of the petitioners shall tender an undertaking to the scrutiny committee, that the concerned petitioners would approach the concerned competent authority for ratifying the spelling mistake occurred in recording name of the tribe and shall produce the correct certificate within a period of eight weeks from the date of receipt of the original certificate (which has been produced to the scrutiny committee). The concerned competent authorities/Sub Divisional Officers, on receipt of an application together with the original tribe certificate issued in favour of the individual petitioners, shall make necessary correction in respect name of the tribe (correct the spelling of Tribe) and record the same in consonance with the relevant entry in respect of tribe in the schedule to the Constitutional Order. The corrected certificate shall be issued by ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:11:00 ::: {405} wp 6263.17 & others.odt the Sub Divisional Officers/Competent Authorities within a period of four weeks from the date of approach of the concerned individual petitioner, without embarking upon any enquiry since the holder of certificate had received the Tribe Certificates issued by the competent authority after conducting due enquiry. 17 It is noticed that in certain cases, the tribe certificates are issued by the Executive Magistrates and in accordance with rules, the Sub Divisional Officers have been now authorized to issue certificates. In such cases, the concerned Sub Divisional Officer, exercising the jurisdiction over the area, shall issue the corrected tribe certificate, on receipt of an application by the individual petitioner, together with original tribe certificate issued by the Executive Magistrates. The corrected certificate shall be issued as above within a period of four weeks from the date of receipt of the application/s, without embarking upon any fresh enquiry.

On receipt of the corrected tribe certificate, the concerned petitioner shall submit the same to the scrutiny committee forthwith. The scrutiny committee shall proceed to decide the matter and take decision on the proposal in respect of verification of the tribe certificates, on merits and in accordance with law, as expeditiously as possible and preferably within a period of one ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 07:11:01 ::: {406} wp 6263.17 & others.odt year from the date of receipt of the corrected certificate from each of the petitioners. The scrutiny committee, hence forth, shall not reject the verification claims merely on the ground of occurrence of spelling mistake in recording the name of the tribe and shall proceed to decide the claim of an individual as belonging to a particular tribe on merits. In such circumstances, the scrutiny committee shall direct petitioners to produce corrected tribe certificate and shall issue necessary directions for recording corrections to the competent authority by keeping the proposals pending.

18 Until the decision on the proposals for verification of the tribe claims by the concerned scrutiny committee, no adverse action shall be taken by the employer or the concerned educational institution prejudicially affecting the interest of any of the individual petitioner.

18 Rule is made absolute in above terms.

19 There shall be no order as to costs.

             (K.L. WADANE, J)                    (R.M. BORDE, J)

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