High Court · 2024
Legal Reasoning
1 WP / 13996 / 2021IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 13996 OF 20211] Yash Kishor Bagul Age : 18 years, Occ. Student, R/o Sarve, Tq. Sindhkheda, Dist. Dhule2] Divya Kishor Bagul, Age : 20 years, Occu. Student, R/o Sarve, Tq. Sindhkheda, Dist. Dhule.. Petitioners Versus1] The State of Maharashtra, Through its Secretary, Tribal Department, Mantralaya, Mumbai – 32.2] The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Through its Deputy Director (R)3] The Tahsilar, Tahsil Office, Sindhkheda, Tq. Sindhkheda, Dist. Dhule4] The Tahsildar, Tahsil Office, Shirpur, Tq. Shirpur, Dist. Dhule5] The Commissioner & Competent Authority, State CET Cell, Maharashtra State, Mumbai – 1 8th Floor, New Exelsior Building, AK Marg, Fort, Mumbai – 1 (Controller of Admission Process)...Advocate for petitioners : Mr. M.V. ThoratAGP for the respondent – State : Mr. N.S. Tekale...
Legal Reasoning
2 WP / 13996 / 2021 CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 24 OCTOBER 2024PRONOUNCED ON : 11 NOVEMBER 2024ORDER (MANGESH S. PATIL, J.) :Heard both the sides finally. 2.By way of this petition under Article 226 of the Constitutionof India, the petitioners who are siblings, are taking exception to thejudgment and order of the respondent – scrutiny committee in aproceeding under section 7 of the Maharashtra Act No. XXIII of 2001and the Rules of 2003, framed thereunder, refusing to validiate their‘Tokre Koli’ scheduled tribe certificates. 3.Learned advocate for the petitioners refers to thegenealogy substantiated by the petitioners’ affidavits under rule 11 ofthe Rules of 2003, in order to appreciate the relationship of thepetitioners with the documents particularly the pre-constitutionaldocuments of the ancestors. He would submit that older favourablerecord of Gorakh Bapu Nathu from the birth and death registermaintained in form no. 14 dated 28-12-1935, referring to him as ‘TokreKoli’ and even that of Daga Nathu Punju of 18-09-1912, referring to himas ‘Tokre Koli’ which is of the oldest period having greater probativevalue, has been discarded by the committee illegally and subsequentcontrary entries of ‘Koli’ have been relied upon to discard the claims. 3 WP / 13996 / 2021Such approach of the committee is perverse and arbitrary. Thecommittee failed to consider the fact that in all probability, descriptionas ‘Koli’ in the pre-constitutional record ought to be appreciated asreferring to a common noun that was being used by making referenceto ‘Koli’. It could not have been treated as contrary entry. Even thevigilance enquiry was not conducted by the committee as iscontemplated under rule 10. The research officer was not a part of thevigilance cell. It was conducted by a Police officer alone. Even theresearch officer did not express any opinion in respect ofanthropological and ethnological traits in the light of the responsesgiven to the questionnaire. Even the committee failed to appreciatethis lapse. Sufficient and proper explanation was assigned by thepetitioners in the reply to the vigilance report. The committee has failedto objectively consider it. The petition be allowed by quashing andsetting aside the impugned judgment and order and the committee bedirected to issue certificates of validity.4.Per contra, learned AGP would take us through the originalfiles maintained by the committee and particularly, the photocopies ofthe birth record. He would submit that as indicated in the judgmentunder challenge, both the entries of Daga Nathu Punju of 1912 andGorakh Bapu Nathu of 1935 have been rightly discarded by thecommittee with a specific observation that except the entries in respect 4 WP / 13996 / 2021of these two years i.e. 1912 and 1935, rest of the pages from this birthand death register were maintained in Modi script. The entries for thesetwo years were recorded at once, creating a serious doubt about itsgenuineness. In fact, two entries of birth have been traced out inrespect of Gorakh Bapu Nathu, one showing him to have been born on08-05-1934 and the other of 28-12-1935. The former being ‘Koli’ andthe latter as ‘Tokre Koli’ which could not have been possible and thelatter entry certainly creates a doubt about its genuineness.5.Learned AGP would further submit that even the argumentof learned advocate for the petitioners that the research officer was nota part of the vigilance enquiry, is factually incorrect. The vigilancereport, copy of which is annexed to the petition which was served to thepetitioners, itself would demonstrate that there is a specific remark ofthe research officer expressly opining that the replies given by thepetitioners were not compatible with ‘Tokre Koli’ tribe which has beenfurther endorsed by the Police officer of the rank of DeputySuperintendent of Police before it was submitted to the committee.6.Mr. Takale would further submit that apart from the abovestate-of-affairs, the committee could recover few contrary entries in theschool record as well as birth and death record of the blood relativeswherein they were described as ‘Koli’. The very fact that the caste‘Koli’ was notified as Other Backward Class (OBC) whereas ‘Tokre Koli’ 5 WP / 13996 / 2021is a scheduled tribe clearly demonstrates that except similarity in theuse of word ‘Koli’, the two are distinct and separate. The former cannotbe treated as generic name of which the latter is a specie. Besides, asis expressly remarked by the committee in the impugned judgment, infact while admitting to the school on 10-04-1940, petitioners’grandfather Gorakh Bapuji Koli and cousin grand father Namdev DagaKoli were expressly described as ‘Hindu Kunbi Patil’ and uncleRamchandra Bapu Koli as ‘Hindu Koli’ on 02-05-1945, respectively andletter ‘Kunbi’ was scored off in the two former entries. He would,therefore, submit that no fault can be found with the committee inrefusing to recognize the petitioners as belonging to ‘Tokre Koli’scheduled tribe. In fact, there is an attempt at manipulation of theschool record in respect of Gorakh Bapuji Koli and Namdev Daga Koliwherein word ‘Kunbi’ was replaced by word ‘Koli’. In the light of suchan attempt at manipulation, no fault can be found with the observationof the committee. There is no perversity or arbitrariness and thepetition be dismissed. 7.We have carefully considered the rival submissions andperused the papers.8.In order to appreciate the evidence, it would be apposite tobear in mind the genealogy followed by the documentary evidencewhich has been collated by the committee, as under : 6 WP / 13996 / 2021 (petitioner nos. 1 & 2)Sr. No.Particulars ofdocumentsName of the person onthe documentsRelation with theApplicantCaste recordedAdmission date01School evidence Gorakh Bapuji KoliFatherKoli Hindu Kunbi Patil10.04.194002School evidence Namdev Daga KoliCousin UncleKoliHindu Kunbi Patil10.04.194003School evidence Ramchandra Bapu KoliUncleHindu Koli02.05.194504School evidenceKishor Gorakh BagulApplicant no. 1Hindu Koli(Tokre Koli)13.07.197905School evidenceDivya Kishor BagulApplicant no. 2Hindu Tokre Koli15.06.200606School evidenceYash Kishor BagulApplicant no. 3Hindu Tokre Koli17.06.200807Village Namuna14Daga Bap Nathu Va PunjuCousin GrandfatherTokre Koli18.09.191208Village Namuna14Nathu Punju KoliCousin GrandfatherKoli04.11.193109Village Namuna14Narmadabai Mard NathuGrandmotherKoli29.09.193310Village Namuna14Gorakh Bapu NathuFatherKoliBirth entry08.05.193411Village Namuna14Gorakh Bapu NathuFatherTokre KoliBirth entry28.12.193512Village Namuna14Gorakh Bapu NathaFatherKoliDeath entry22.10.19349.It would be appropriate to understand the abovefavourable and contrary record in juxtaposition to the stand being takenby the petitioners in their reply dated 10-11-2021, filed to the vigilancereport. So far as the entries in the school record as ‘Hindu Kunbi Patil’wherein word ‘Kunbi’ has been scored off and replaced by word ‘Koli’,the stand of the petitioners in their replies is to the effect that there isGenealogyNathu PunjuDagaKaliBapuDhanabaiNamdeoPunjaAnusayaGorakhRamchandraDigambarDipchandraVijayBhagwanVidyaKishorVandanaYashDivya 7 WP / 13996 / 2021nothing in the vigilance report to demonstrate that the initial entrieswere made pursuant to the information furnished by the petitioners’ancestors. It could be an error. However, conspicuously, the fact ofthere being scoring and manipulation in the caste column, has notbeen specifically denied by the petitioners. Meaning thereby that evenif, as is being submitted by the learned advocate for the petitioners thatthe description as ‘Koli’ being generic reference, is accepted for thesake of arguments, the fact that there has been a manipulation whereinword ‘Kunbi’ has been scored off and replaced by ‘Koli’ cannot betreated as a favourable entry. It is a clear manipulation and thepetitioners being the ultimate beneficiaries, cannot shirk off theresponsibility on the spacious plea of it being the school recordmaintained by the school and coming from the custody of headmaster.10.Besides, the very argument of the learned advocate for thepetitioners and their stand to treat ‘Koli’ as generic name and ‘TokreKoli’ as a specie, is liable to be discarded for the simple reason thatethnologically and anthropologically, ‘Koli’ was enlisted in OBCwhereas ‘Tokre Koli’ is a scheduled tribe since inception. Therefore,even if the petitioners forefathers were being described with ‘Koli’surname, one cannot treat them as belonging to ‘Tokre Koli’.11.For the same reason, the aforementioned ‘Koli’ entrieseven in the school record and the birth and death register of the pre- 8 WP / 13996 / 2021constitutional period describing the petitioners’ ancestors as ‘Koli’would belie their claim.12.So far as the two favourable entries of Daga Nathu Punjuof 1912 and Gorakh Bapu Nathu of 1935, wherein they have beendescribed as ‘Tokre Koli’, we cannot take exception to the observationsof the committee with reference to the entire birth and death register ofthe relevant time inspected by it wherein except the entries of the year1912 and 1935, rest of the entries were found maintained in Modi scriptand these two entries can be found on the pages with identicalhandwriting in Devnagari script. The very fact that entry in the birthregister of Gorakh Bapu Nathu of 08-05-1934 described him as ‘Koli’,and another entry of 28-12-1935 stated to be of the same individualdescribed him as ‘Tokre Koli’, indeed creates a serious doubt about thelatter entry, more so, in the absence of specific stand by the petitionersin their reply to the vigilance cell report. Even the petitioners seem tohave attempted to mislead the committee by producing an additionaldocument in the form of extract of birth and death register in form 14 ofGorakh Bapu Nathu stated to be of 22-10-1934, showing the individualto have died on that day which cannot be possible since he waspetitioners’ grandfather. 9 WP / 13996 / 202113.To begin with the objection as regards composition of thevigilance cell, the vigilance report served to the petitioners and copy ofwhich is annexed to the petition at Exhibit – C clearly reveals thatthere is a specific endorsement of the research officer expresslyopining that the description / replies given by the petitioners are notcompatible with the traits of ‘Tokre Koli’ scheduled tribe. It cannottherefore be accepted that vigilance report pursuant to the vigilanceenquiry, was faulty on this count. 14.In the light of above state-of-affairs, we cannot accept thesubmission of the learned advocate for the petitioners that theobservations and conclusions of the committee are perverse orarbitrary. It has taken a plausible view, which cannot be interfered withthe limited jurisdiction under Article 226 of the Constitution of India.15.Considering the observations of the Supreme Court in thematter of Maharashtra Adiwasi Thakur Jamat Swarakshan SamitiVs. State of Maharashtra and others; 2023 SCC Online SC 326, inthe absence of documentary evidence, the affinity test would come intoplay. We cannot undertake objective scrutiny of the observations of thecommittee based on the opinion of the research officer, who is one ofthe three members of the committee, as regards the affinity test,wherein it has been expressly mentioned that except few replies, rest 10 WP / 13996 / 2021of the replies given by the petitioners do not disclose similarity with thetraits of the ‘Tokre Koli’ scheduled tribe and they do not belong to it.16.In the light of above, there is no merit in the petition and itis liable to be dismissed and is accordingly dismissed. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/