High Court
Facts
*1* wp5986o11IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5986 OF 2011WITHCIVIL APPLICATION NO.9562 OF 2023Vishwanath s/o Govinda Johari,Age : 46 years, Occ : Service as Superintendent, Govt. PleaderOffice, High Court of Bombay,Bench at Aurangabad, at presentR/o Aurangabad, Tq. & Dist.Aurangabad....PETITIONER-VERSUS-1.The State of Maharashtra.Through Principal Secretary,Law and Judiciary Department,Mantralaya, Mumbai-32.2.Joint Secretary,Law and Judiciary Department,Maharashtra State, Aurangabad,Dist. Aurangabad.3.Scheduled Tribe CertificatesScrutiny Committee, Aurangabad,Division Aurangabad.Through its Member Secretary.4.Kalyan s/o Sopanrao Sonwane,Age : 44 years, Occ : Social Work,R/o K-40/4, N-11, Navjeevan Colony,Hudco, Aurangabad, Tq. And Dist. Aurangabad.(Respondent No.4 deleted as perCourt’s order dated 03.12.2024)....RESPONDENTS *2* wp5986o11WITHCIVIL APPLICATION NO.10438 OF 2011Pandit s/o Sayajirao Shejwal,Age : 48 years, Occu : Serviceand Vice President ofDr. Babasaheb Ambedkar MarathwadaUniversity Magaswargiya ShikshketarKarmachari Sanghtna, Aurangabad.Having its office at University Campus,Aurangabad....APPLICANTVERSUS1.Vishwanath s/o Govinda Johari,Age : 46 years, Occ : Service as Superintendent, Govt. PleaderOffice, High Court of Bombay,Bench at Aurangabad, at presentR/o Aurangabad, Tq. & Dist.Aurangabad....Orig.Petitioner2.The State of Maharashtra.Through Principal Secretary,Law and Judiciary Department,Mantralaya, Mumbai-32.3.Joint Secretary,Law and Judiciary Department,Maharashtra State, Aurangabad,Dist. Aurangabad.4.Scheduled Tribe CertificatesScrutiny Committee, Aurangabad,Division Aurangabad.Through its Member Secretary.5.Kalyan s/o Sopanrao Sonwane,
Legal Reasoning
*8* wp5986o11impugned order. 14.We have carefully considered rival submissions andperused the papers. There is no dispute about the genealogy. Inview of the order passed by this Court in the matter of Pallavi(supra) wherein, the same documentary evidence was subjectmatter of scrutiny, the instant petition will also have to bedecided on similar lines. Even the relationship of the petitionerwith Sanjay, Mohitkumar and Anil is not disputed and in view ofvalidity certificates in favour of these persons, we are of the viewthat the petitioner is also entitled for validation of his claim. It isstated that in view of validity certificates of the petitioner’s bloodrelatives, denying his claim would create anomalous situation. 15.On perusal of the impugned order, it is clear that thereasoning of the Scrutiny Committee to ignore these validitycertificates by simply referring to the seniority list of thepetitioner’s father mentioning his father’s caste as ‘Su.koli’, isclearly an erroneous approach. In view of the validity certificatesof the petitioner’s paternal side blood relatives and the final orderin the matter of Pallavi Sitaram Johare (supra), the instantpetition is liable to be allowed by applying the settled
Arguments
*3* wp5986o11Age : 44 years, Occ : Social Work,R/o K-40/4, N-11, Navjeevan Colony,Hudco, Aurangabad, Tq. And Dist. Aurangabad.(Respondent No.4 deleted as perCourt’s order dated 03.12.2024)....RESPONDENTS…Shri Mahesh S. Deshmukh, Advocate h/f Shri Ajeet B. Kale,Advocate for the petitioner.Ms.P.J. Bharad, AGP for the respondents/State.... CORAM : MANGESH S. PATIL & PRAFULLA S. KHUBALKAR, JJ. DATE : 18th December, 2024JUDGMENT ( Per Prafulla S. Khubalkar, J. ):- (a) Civil Application No.10438/2011 None present for the applicant/ intervenor. 2.This is an application for intervention by a person,who was not a party before the Scheduled Tribe CertificatesScrutiny Committee.3.Perused the application. *4* wp5986o114.We are of the view that the presence of theapplicant/ intervenor is not at all necessary for deciding thecontroversy in this petition. Therefore, the Civil Application forintervention is liable to be rejected.5.The Civil Application is rejected.(b) Writ Petition No.5986/2011 6.Heard the parties finally.7.By the instant petition, which is admitted on20.01.2012, the petitioner assails the order dated 30.07.2011passed by respondent No.3 Scrutiny Committee thereby,invalidating the petitioner’s claim for ‘Koli Malhar’, ScheduledTribe.8.The petitioner is an employee in the establishmentof the office of Government Pleader, High Court of Bombay,Bench at Aurangabad. In the year 1998, his claim for ‘KoliMalhar’, Scheduled Tribe, was referred to respondent No.3Scrutiny Committee. Initially, the petitioner’s claim was *5* wp5986o11invalidated by order dated 03.06.2010, which was challenged inWrit Petition No.8202/2010 which came to be decided by orderdated 30.03.2011 thereby, remanding the matter to the ScrutinyCommittee. Accordingly, fresh scrutiny of the petitioner’s claimwas undertaken and the impugned order came to be passed on30.07.2011.9.A perusal of the impugned order reveals that insupport of his claim, the petitioner has submitted in all 85documents including revenue records, school records and tribevalidity certificates of his paternal side blood relatives. Thepetitioner’s claim was scrutinized by the Scrutiny Committee onthe touchstone of documentary evidence as well as affinity test.By final order dated 30.07.2011, the tribe claim was invalidatedwith direction to confiscate the tribe certificate and to initiate theproceedings under Section 11(2) of Maharashtra Act No.XXIII of2001. This order is subjected to challenge by way of the instantpetition.10.Advocate Shri Mahesh S. Deshmukh, the learnedcounsel for the petitioner, has strenuously argued that theScrutiny Committee has utterly failed to consider ample *6* wp5986o11documentary evidence which established the petitioner’s claimfor grant of a validity certificate. To buttress his submissions, hehas invited our attention to validity certificates granted in favourof the petitioner’s paternal cousin brothers viz. Sanjay Sakharam,Anil Sakharam and Mohitkumar Sitaram. He has invited ourattention to the genealogy which is filed along with the affidavitof Mohitkumar Sitaram dated 22.07.2008 which depicts therelationship of the petitioner with Sanjay and Mohitkumar. Hehas also invited our attention to the order dated 11.08.2023 inWrit Petition No.10835/2021 filed by Pallavi Sitaram, real sisterof Mohitkumar, by which the said writ petition was alloweddirecting the Scrutiny Committee to issue a validity certificate of‘Koli Malhar’, Scheduled Tribe, in favour of Pallavi SitaramJohare.11.The learned counsel for the petitioner furthersubmits that in view of the validity certificates in favour ofPallavi, Mohitkumar, Anil and Sanjay, who are his cousinbrothers and sister, he is also entitled for grant of a validitycertificate. There is no dispute about genealogy and therelationship of the petitioner with these validity holders. It is *7* wp5986o11submitted that the reasons for ignoring these validity certificatesas stated by the Scrutiny Committee in the impugned order byreferring to a seniority list of the petitioner’s father mentioningcaste as ‘Su.Koli’, are not sustainable in view of the fact that theorder in Pallavi’s Writ Petition No.10835/2021 is not challenged.12.The learned counsel for the petitioner then submitsthat the reasoning of the Scrutiny Committee regarding failure inaffinity test is absolutely erroneous in view of the authoritativepronouncement of the Supreme Court of India in the matter ofMaharashtra Adiwasi Thakur Jamat Swarakshan Samiti vs.The State of Maharashtra and others, AIR 2023 SC 1657 :2023 SCC Online SC 326, upholding the position that affinitytest is not a litmus test. 13.Per contra, Advocate Ms.Bharad, the learned AGPfor the State authorities, has supported the impugned order bypointing out that the validity certificate was granted in favour ofPallavi conditionally since the Scrutiny Committee had decidedto reopen few of the matters. By referring to the reasoning in theimpugned order, she would submit that the validities relied uponby the petitioner are not final and conclusive and supported the
Decision
*9* wp5986o11propositions of law laid down in Maharashtra Adiwasi ThakurJamat Swarakshan Samiti (supra) and Apoorva d/o VinayNichale Vs. Divisional Caste Certificate Scrutiny CommitteeNo.1 Nagpur, [2010(6) Mh.L.J.401 : AIR 2010(6) Bom.R.21].Hence, the following order:-(a)The Writ Petition is partly allowed. (b)The impugned order dated 30.07.2011 passed byrespondent No.3 Scrutiny Committee is hereby quashed and setaside.(c)Respondent No.3 Scrutiny Committee is directed toimmediately issue validity certificate of ‘Koli Malhar’,Scheduled Tribe to the petitioner in the prescribed format withoutincorporating any other conditions.(d)This validity certificate would be subject to finaldecision to be taken by the Scrutiny Committee in reopenedmatters of other validity holders.(e)The petitioner shall not be entitled to claim equities.(f) No order as to costs.16.Rule is made absolute in the above terms. *10* wp5986o11(c) Civil Application No.9562/2023 17.By this Civil Application, the petitioner/ applicanthas prayed for direction to respondent No.2/ Joint Secretary, Lawand Judiciary Department, State of Maharashtra, to grant pensionand other ancillary benefits from the date of his superannuation.18.In view of the judgment delivered today in thepetitioner’s substantive Writ Petition No.5986/2011, this CivilApplication is disposed of with direction to respondent No.2 todecide the petitioner’s pension case accordingly. kps ( PRAFULLA S. KHUBALKAR, J.) ( MANGESH S. PATIL, J.)