RAVINDRA v. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON
Facts
( 1 ) wp 7040.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7040 OF 2024 Shambala d/o Ashok Shinde,Age: 31 Years, Occu: Student,R/o At Post Ghansargaon,Tq. Renapur,Dist. Latur....PETITIONERV/s.1. The State of Maharashtra,Through its Secretary,Medical Education and Drugs Department,Mantralaya, Mumbai – 32.2.Chief Executive Officer,Zilla Parishad, Ratnagiri,Dist. Ratnagiri.3.Deputy Director (Research)and Member Secretary,Scheduled Tribe Certificate VerificationCommittee, Kinwat,Headquarter Chhatrapati Sambhajinagar,Near Cidco Bus Stand, Ch. Sambhajinagar,Dist. Chhatrapati Sambhajinagar.... RESPONDENTSANDWRIT PETITION NO. 7041 OF 2024 Mahesh s/o Ashok Shinde,Age: 29 Years, Occu: Student,R/o At Post Ghansargaon,Tq. Renapur,Dist. Latur....PETITIONERV/s.
Legal Reasoning
( 3 ) wp 7040.242.In both these Petitions, the Petitioners, who are siblings, pray forquashing and setting aside the order dater dated 30.05.2024, passed by theScheduled Tribe Caste Scrutiny Committee, Kinwat thereby invalidating“Thakar” Scheduled Tribe caste claim.3.After considering the extensive submissions of the learnedadvocates, we have perused the Judgment passed by a Co-ordinate Bench ofthis Court, dated 21.08.2023 in Writ Petition No. 10305 of 2023 (Rohit s/oGopalrao Shinde and Ors. V/s. State of Maharashtra and Anr.), wherein realcousins of both these Petitioners have been conditionally granted validitycertificates as “Thakar” Scheduled Tribe. The operative order reads as under:“(i)The writ petition is partly allowed.(ii)The common judgment and order dated 11.08.2023 passed by theScrutiny Committee is quashed and set aside(iii) The Scrutiny Committee shall shall issue tribe validity certifi-cates of scheduled tribe “Thakar” in favour the petitioners forthwithwhich shall be subject to outcome of the reopened matters.(iv) The petitioners shall not be entitled to claim equities.”4.There is no dispute that both the Petitioners before us, namelyShambala Ashok Shinde and Mahesh Ashok Shinde, are real siblings. Both arereal cousin sister and brother of Rohit Goapalrao Shinde, Aaditya GopalShinde and Somnath Ganpat Shinde, who are Petitioners in W.P. No.10305 of ( 4 ) wp 7040.242023 and by order dated 21.08.2023, conditional validity has been granted tothem.5.The Petitioners have placed on record genealogical tree, whichshows that, Tukaram Shinde was having two sons namely Gyanoba TukaramShinde and Dhondiba Tukaram Shinde. Shri Gyanoba was having sons namelyChandar, Balbhim, Ashok and Balasheb. Shri Vyankat, Ganpat, Shankar andGopal are biological children of Chandar Vitthal Shinde. Shri Somnath is sonof Ganpat (Petitioner No.3 in W.P. No. 10305 of 2023). Rohit and Aaditya aresons of Gopalrao Shinde (the Petitioners Nos. 1 & 2 in W.P. No. 10305 of 2023)to whom the Coordinate Bench has already granted “Thakar” Scheduled TribeCertificate. Shambala Ashok Shinde (in W.P. No. 7040/2024) and MaheshAshok Shinde (in W.P. No. 7041/2024) are siblings and biological sons of ShriAshok s/o Vitthal Shinde. This aspect is undisputed.6.The learned AGP canvassed that the Petitioners themselvesproduced affidavit of Shri Gopal Chandar Shinde, who has given genealogicaltree stating that, one Shri Pund Shinde is shown as biological son of DhondibaTukaram Thakar but in genealogical tree his name is not shown. In Census of1951 caste of the Petitioners forgathers is shown as “Maratha”. As per vigilancereport, the Petitioners forefathers have not migrated from the area wherepeople of “Thakar” Scheduled Tribe are residing. Therefore, the Petitioners ( 5 ) wp 7040.24failed to prove that they belong to “Thakar” Scheduled Tribe. It is furthersubmitted that if this Court is inclined to accept the Writ Petition filed by Rohits/o Gopalrao Shinde & others (W.P. No. 10305/2023), similar conditions beimposed on the said Petitioner.7.Needless to say that the Census Report wherein the caste of thepresent Petitioners is described as “Maratha” is not a substantial proof to provetheir caste. Though the learned AGP canvassed that one Shri Pund Shinde isshown as biological son of Dhondiba Tukaram Thakar but in genealogical treehis name is not shown, however, said contention not been raised by theRespondents before the Coordinate Bench of this Court in W.P. No. 10305 of2023 decided on 21.08.2023.8.In case of Shweta Balaji Isankar V/s. State of Maharashtra & Ors.(W.P. No. 5611/2018 decided on 27.07.2018, 2018 SCC Online Bom. 10341,the Coordinate Bof his Court has held in paragraph nos. 2 to 4 and 8 as under:"2. On the earlier occasion, we found that though the petitionerproduced credible evidence in the form of certificates of validityissued to her real uncle Govind Sambhaji Isankar and whichconcededly has been issued way back on 5 th December 2005 andanother certificate of validity dated 5 th September 2006 to his cousinuncle Ramdas Sambhaji Isankar, the Committee finds that thecertificate of validity issued to the real uncle Govind, is not free fromsuspicion. It is held by the Committee in the impugned order that anotice to show cause has been issued to said Govind on 14thSeptember 2017, calling upon him to show cause as to why thiscertificate of validity should not be cancelled as its issuance isvitiated by fraud or suppression of material facts by the said Govind. ( 6 ) wp 7040.243. On such a finding being rendered by the Committee, wecalled upon the learned AGP on the earlier two occasions to producethe record. We also indicated to the learned AGP as to how thecertificate of validity is denied to the petitioner though she hasestablished her relationship with the said Govind and only on theground that a show cause notice has been issued, but no proceedingsin furtherance thereof came to be initiated till date. The learned AGPsought time to file an affidavit. Now, the Joint Commissioner,Schedule Tribe Scrutiny Committee, Aurangabad has filed anaffidavit in reply. That is taken on record. The said affidavit admitsthat the certificate of validity has been issued to her real uncle andcousin uncle of the petitioner. The affidavit admits that the petitionerrelies heavily on these two documents, but clarifies that there is asuppression detected from the original record of the certificate holderand that is how a show cause notice has been issued to Govind. Theshow cause notice could not be taken to its logical end on account ofthe huge pendency of cases before this Committee. In all, 7,000matters were pending on the date when this Joint Commissioner tookcharge and he has reduced the pendency by 2500 cases beingdecided. In the circumstances, he says that appropriate orders anddirections be issued by this Court.4. We are not impressed by this explanation and the justificationnot to proceed against a person who has perpetrated a fraud on thepublic. If it is a serious allegation and which is termed as fraud, then,it should have been taken to its logical end. Mere issuance of a showcause notice in the present case would not suffice for there are twocertificates of validity relied upon. The only reason assigned in theimpugned order to discard them, cannot be sustained. Thejustification in the above affidavit is also not enough to straightawaydiscard the certificates of validity issued in the family. It is concededthat other reasons assigned in the impugned order cannot besupported in law.....8. This order does not prevent the Committee from proceedingagainst Govind in accordance with law and needless to further clarifythat in the event Govind's claim is invalidated, all the consequencesshall be taken by the petitioner as well."9.In Apporva Vinay Nichale Vs. Divisional Caste Certificate ScrutinyCommittee No.1 and others, 2010 (6) Mh. L.J. 401, this Court has concludedthat when the biological father, biological siblings, biological uncle etc., are ( 7 ) wp 7040.24granted validity certificates, a candidate so related to them, cannot be deprivedof a validity certificate. 10.In case of Mah. Adiwasi Thakur Jamat Swarakshan Samiti Vs. Stateof Maharashtra & Ors.; AIR 2023 SUPREME COURT 1657, the Hon'bleSupreme Court in paragraph nos.22, 23 and 24 has held as under:“22. We can also contemplate one more scenario which is foundin many cases. These are the cases where the applicant relies uponcaste validity certificates issued to his blood relatives. Obviously.such a validity certificate has to be issued either by the ScrutinyCommittee constituted in terms of the directions issued in KumariMadhuri Patil's case (AIR 1995 SC 94) or constituted under theRules framed under the 2000 Act. In such a case, firstly, theScrutiny Committee must ascertain whether the certificate isgenuine. Secondly, the Scrutiny Committee will have to decidewhether the applicant has established that the person to whom thevalidity certificate relied upon by him has been issued is his bloodrelative. For that purpose, the applicant must establish his preciseand exact relationship with the person to whom the validitycertificate has been granted. Moreover, an enquiry will have to bemade by the Scrutiny Committee whether the validity certificatehas been granted to the blood relative of the applicant by theconcerned Scrutiny Committee after holding due enquiry andfollowing due procedure. Therefore, if the Scrutiny Committee hasissued a validity certificate contemplated in terms of I the decisionin the case of Kumari Madhuri Patill, the examination will bewhether the enquiry contemplated by the said decision has beenheld. If the certificate relied upon is issued after coming into forceof the 2000 Act, the Scrutiny Committee will have to ascertainwhether the concerned Scrutiny Committee had followed theprocedure laid down therein as well as in the ST Rules or the SCRules, as the case may be. For this verification, the ScrutinyCommittee can exercise powers conferred on it by Section 9(d) byrequisitioning the record of the concerned Caste ScrutinyCommittee, which has issued the validity certificate to the bloodrelative of the applicant. If the record has been destroyed, the ( 8 ) wp 7040.24Scrutiny Committee can ascertain whether a due enquiry has beenheld on the basis of the decision of the Caste Scrutiny Committeeby which caste validity has been granted to the blood relative ofthe applicant. If it is established that the validity certificate hasbeen granted without holding a proper inquiry or withoutrecording reasons, obviously, the caste scrutiny committee cannotvalidate the caste certificate only on the basis of such validitycertificate of the blood relative.23.In a given case, the Scrutiny Committee may be satisfiedthat the caste validity certificate relied upon by the applicant hasbeen issued after making a lawful enquiry. But if the ScrutinyCommittee is of the view that the applicant has not clearlyestablished that the person to whom caste validity certificateproduced on record has been granted is his blood relative, in termsof sub- rule (2) of Rule 12 of the ST Rules, the Caste ScrutinyCommittee will have to refer the case for conducting an enquirythrough Vigilance Cell. In such a case, the Vigilance Cell can bedirected by the Scrutiny Committee to conduct an enquiry limitedto the relationship claimed by the applicant with the person inwhose favour the caste validity certificate has been issued. If, onthe basis of the report of the Vigilance Cell, the ScrutinyCommittee is satisfied that the person in whose favour castevalidity certificate has been issued is a blood relative of theapplicant and lawful enquiry has been conducted before issuingthe validity certificate, the Scrutiny Committee will have to issuevalidity certificate even if the applicant does not satisfy the affinitytest. For example, if it is established that the father or grandfatherof the applicant has been given a caste validity certificate afterholding a lawful enquiry in accordance with law, the CasteScrutiny Committee cannot hold that the grandfather or father ofthe applicant, as the case may be, belongs to Scheduled Tribe butthe applicant does not belong to Scheduled Tribe. Only if therelationship as pleaded by the applicant is not established, theother evidence produced by the applicant and the result of theaffinity test can be taken into consideration by the ScrutinyCommittee.24. As provided in sub-rule (7) of Rule 12 of the ST Rules, theVigilance Cell's report is not conclusive. If on the basis of thereport of the Vigilance Cell and other evidence on record, the ( 9 ) wp 7040.24Scrutiny Committee comes to a conclusion that the caste claim isgenuine, a caste validity certificate can be issued. Only on theground that the report of vigilance cell is in favour of theapplicant, validity certificate cannot be mechanically grantedwithout application of mind. If the report of the Vigilance Cell isagainst the applicant, his caste claim cannot be rejected only onthe basis of the report of the Vigilance Cell without providing acopy of the report to the applicant and without giving him anopportunity of being heard on the report. After giving anopportunity to the applicant to make submissions on the report, theScrutiny Committee may reject the caste claim. In a given case,the Scrutiny Committee can also record a finding that the casteclaim is genuine. It all depends on the facts of each case.”11.In cases cited supra, the law has been well settled that if thevalidity certificates of any of the holders, who are subjected to reopening oftheir cases, are set aside and such holders suffer adverse orders after reopeningof the cases, the same consequences would befall upon those Petitioners whohave placed reliance upon such certificate holders for seeking validitycertificates from this Court.12.Therefore, keeping in view the law laid down by this Court inShweta Balaji Isankar cited (supra) and by the Hon’ble Supreme Court in Mah.Adiwasi Thakur Jamat Swarakshan Samiti cited (supra), the conditions re-produced above from the case of Rohit s/o Gopalrao Shinde & two Others inW.P. No.10305 of 2023, shall squarely apply to both these Petitioners in WritPetition No. 7040/2024 (Shambala d/o Ashok Shinde) and Writ Petition No.7041/2024 (Mahesh s/o Ashok Shinde). ( 10 ) wp 7040.2413. Since, the Petitioner in W.P. No. 7040 of 2024 is selected as aAssistant Teacher through the Pavitra Portal for the Zilla Parishad Ratnagiriand is placed at sr.no. 983 in selection list. Therefore, the Petitioner is herebycalled upon to furnish an affidavit with this Court as well with her employerthat, in case the caste claim of her cousin is reopened and said caste claim isinvalidated on any ground in that event, the Petitioner would not claim anyservice regularization/increments/promotion/pay-scale revision or servicebenefits, in the light of Chairman and Managing Director FCI & Ors. V/s.Jagdish Balaram Bahira & Ors.; AIR 2017 SUPREME COURT 3271.14.In W.P. No. 7041 of 2024, the Petitioner - Mahesh Shinde isappointed as a Dental Assistant with Civil Hospital, Latur from the reservedseat for the Scheduled Tribe category, therefore, the Petitioner is hereby calledupon to furnish an affidavit with this Court as well with her employer that, incase caste claim of her cousin is reopened and said caste claim is invalidated onany ground in that event, the Petitioner would not claim any serviceregularization/increments/promotion/pay-scale revision or service benefits, inthe light of Chairman and Managing Director FCI & Ors. (supra).15. In view of above discussion, we proceed to pass the followingorder: ( 11 ) wp 7040.24ORDER:i. Both the Writ Petitions are hereby partly allowed.ii.In both the petitions the impugned orders dated 30th May, 2024 passedby Respondent - Scheduled Tribe Certificate Verification Committee, Kinwatare hereby quashed and set aside.iii.The Respondent- Committee is hereby directed to issue caste validitycertificate in favour of both the Petitioners belonging to the ‘Thakar’ ScheduledTribe category within a period of 30 days from today.iv.In case the Committee recalls the validity certificates granted in favour ofthe blood relations of the Petitioners, the Petitioners shall also be liable to bedealt with accordingly.v.The Rule is made partly absolute in above terms. [Y.G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub
Arguments
( 2 ) wp 7040.241. The State of Maharashtra,Through its Secretary,Medical Education and Drugs Department,Mantralaya, Mumbai – 32.2.The Director of MedicalEducation and Research,Maharashtra State,P.D. Melo Road, Fort, Mumbai.3.District Civil Surgeon,District Civil Hospital, Latur.4.Deputy Director (Research)and Member Secretary,Scheduled Tribe Certificate VerificationCommittee, Kinwat,Headquarter Chhatrapati Sambhajinagar,Near Cidco Bus Stand, Ch. Sambhajinagar,Dist. Chhatrapati Sambhajinagar.... RESPONDENTS...Mr. O.D. Totawad h/f. C.R. Thorat, Advocate for the Petitioner/sMr. R.K. Ingole and Ms. Neha Kamble, AGPs for Respondent-State…CORAM : RAVINDRA V. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON :10th July, 2024 PRONOUNCED ON :18th July, 2024 JUDGMENT (Per: Y.G. Khobragade, J.) :-1.Rule. Rule made returnable forthwith. With the consent of boththe sides, the matters are heard finally at the stage of admission.