RAVINDRA v. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON PRONOUNCED ON
Legal Reasoning
WP-12522-2022-Judgment.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.12522 OF 2022Chittaranjan s/o Gyanoba DhemkewadAge 33 yrs Occup-Service,R/o. Sarsam (bk), Taq – Himayat Nagar,Dist – Nanded, Pin no 431 802… PETITIONERVERSUS1. The State of MaharashtraThrough its Secretary,Tribal Development Department,Mantralaya, Mumbai – 322.The Deputy Director (Research) andMember Secretary, Scheduled TribeCertificate Verification Committee,Kinwat, Division Aurangabad,Near Behind CIDCO N-1 Bus Stand,Aurangabad3.The Superintendent of PoliceOffice at Nanded, District Nanded … RESPONDENTS .…Mr. R. B. Dhakane, Advocate for the Petitioner Mr. S. K. Tambe, AGP for Respondent Nos. 1 to 3 – State .…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON PRONOUNCED ON :: 07. 08. 2024 21. 08. 2024 1 of 12 (( 2 ))WP-12522-2022-JudgmentJUDGMENT (Per – Y. G. Khobragade, J.) :- 1.Rule. Rule made returnable forthwith and heard finallyby consent of the parties. 2.The Petitioner has put forth prayer clauses (B) and (C), asunder:-“B.For a writ of mandamus, order or direction in the natureof mandamus, or any kind of writ, the decision rendered by theRespondent no.2, rejecting the proposal bearing CaseNo.4/511/Ser/042018/110614 for Caste / Tribe ValidityCertificate (Mannervarlu-27) by the Respondent no 2, dated4.11.2022, may kindly be quashed and set aside, in the interestof justice. C.For a writ of mandamus, order or direction in the natureof mandamus, or any kind of writ, the Hon’ble court may kindlybe direct the Respondent no.2, to issue Caste / Tribe validitycertificate (Mannervarlu-27) to the petitioner based upon thedocuments and Caste / Tribe validity certificate of the realbrother of the petitioner / validity certificate of the bloodrelatives of the paternity of the petitioner within the stipulatedperiod.”3.We have considered the strenuous submissions canvassedon behalf of both the sides, so also we have gone through the writtennotes of arguments tendered on behalf of the Petitioner and theRespondent caste scrutiny committee. 2 of 12 (( 3 ))WP-12522-2022-Judgment4.On 13.12.2022, this Court had passed an order anddirected Respondent No.3 / Superintendent of Police, Nanded, not todispense with the service of the Petitioner, on the ground that thePetitioner’s caste claim belonging to ‘Mannervarlu’ Scheduled Tribe,has been invalidated. 5.On the face of the record, it appears that, on 01.10.2012,the Petitioner has joined as Police Sub-Inspector with the PoliceDepartment under the reserved category of Scheduled Tribe andpresently he is working with Respondent No.3 / Superintendent ofPolice, Nanded.6.On 05.04.2018, his proposal for scrutiny of caste claimbelonging to ‘Mannervarlu’ Scheduled Tribe, was referred toRespondent No. 2, however, there were some spelling mistakes in thecaste certificate. Therefore, the Petitioner had approached before thisCourt in Writ Petition No. 6360 of 2017 and during pendency of saidPetition, the caste claim of the Petitioner was pending withRespondent No. 2 since 05.04.2018. 7.On 20.06.2017, this Court passed an order in WritPetition No.6360 of 2017, permitting the Petitioner to file a fresh 3 of 12
Legal Reasoning
(( 4 ))WP-12522-2022-Judgmentproposal with Respondent No. 2 Scrutiny Committee. Accordingly,the proposal for scrutiny of caste claim of the Petitioner wassubmitted with Respondent No. 2 along with various documentsincluding primary school extract register, higher secondary schoolextract register, affidavit with genealogy tree, school leavingcertificate, school extract of Petitioner’s father, the caste validitycertificate issued in favour of his real brother Vivekanand GyanobaDhemkewad, school leaving certificate of his brother, vigilance report,copy of caste certificates issued by the Sub-Divisional Officer,Hadgaon, District Nanded, etc. However, on 04.11.2022, RespondentNo. 2 Scrutiny Committee passed the impugned order and invalidatedthe tribe claim of the Petitioner belonging to ‘Mannervarlu’ ScheduledTribe. 8.The learned Counsel appearing for the Petitioner invehemence canvassed that, as per genealogical tree, VivekanandGyanoba Dhemkewad, who is biological brother of the petitioner, wasgranted caste validity certificate by Respondent No. 2 on 19.04.2010on the basis of documents produced before it and as such, the casteclaim of the biological brother of the Petitioner has not been revoked.Therefore, Respondent No. 2 should have granted caste validity 4 of 12 (( 5 ))WP-12522-2022-Judgmentcertificate in favour of the Petitioner. However, by the impugnedorder, Respondent No. 2 invalidated the caste claim of Petitioner onlyon the ground that the validity was granted in favour of thePetitioner’s brother on the basis of validity of maternal side relatives,namely Bhagwan Shivaji Mandalwar, without following the dueprocess of law. To buttress these submission, the learned Counselappearing for the Petitioner relied on the following case laws:-(i)Bharat Nagu Garad and others Vs. State of Maharashtraand others, 2024(1) Mh.L.J. 647;(ii)Maharashtra Adiwasi Thakur Jamat Swarakshan SamitiVs. State of Maharashtra – 2023 SCC OnLine SC 326;(iii)Apoorva Vinay Nichale Vs. Divisional Caste CertificateScrutiny Committee No.1 and others, 2010(6) Mh.L.J.401;(iv)Umesh Anandrao Rodge Vs. State of Maharashtra,2024(2) Mh.L.J. 523;(v)Shweta Balaji Isankar Vs. The State of Maharashtra andothers, 2018 SCC OnLine Bom 10363 (Writ PetitionNo.5611 of 2018, decided on 27,07,2018;(vi)Syanna Vs. State of Maharashtra and others, judgment inthe Supreme Court Civil Appeal No.6253 of 2009, arising 5 of 12 (( 6 ))WP-12522-2022-Judgmentout of S.L.P. (Civil) No.1774 of 2007, decided on15.09.2009;(vii)Anjali d/o Baliram Muddewad Vs. The State ofMaharashtra and others, the order dated 26.06.2023,passed by the coordinate Bench of this Court in WritPetition No.11323 of 2022.9.Per contra, Respondent No. 2 has filed the written notesof argument and opposed the claim of the Petitioner. Mr. Tambe, thelearned AGP submitted in vehemence that on 05.04.2018, thePetitioner submitted his proposal for caste verification, through theCommissioner of Police, Nanded. Accordingly, Respondent No. 2referred said claim to the Vigilance Cell, who submitted an inquiryreport on 26.08.2022 with the remark that the Petitioner does notbelong to ‘Mannervarlu’ Scheduled Tribe. The Vigilance report dulyserved upon Petitioner and invited for reply. Proper opportunity toreply and hearing was provided to the Petitioner. After assessing thedocuments which were produced by the Petitioner, Respondent No. 2/Committee concluded that the Petitioner does not belong to‘Mannervarlu’ Scheduled Tribe caste, because, the documentsproduced by the Petitioner are contrary to his caste claim as under:- 6 of 12 (( 7 ))WP-12522-2022-JudgmentSr.No.NameRelationwithPetitionerCasteMentioned inSchool RecordDocumentRemark01GyanobaMadhavDhemkewadFatherMunnerwarluAdmissionExtractLu & Matra isadded on Nnsubsequently02SumanMadhavDhemkewadReal AuntMarathiORMARATHAAdmissionExtract--03GyanbaMadhavDhemkewadFatherMunnerwarluAdmissionExtract--04MadhavGovindDhemkewadGrand FatherMannervarluAdmissionExtractDetail Remark givenin order of thecommittee 10.The learned AGP strenuously submits that though thePetitioner has relied on validity certificate of his natural brother, butsaid certificate was granted on the basis of validity certificate issuedon 19.04.2010 to relative of his maternal side namely Shri BhagwanShivaji Mandalwar without following the due process of law and assuch, a show cause notice has already been issued to the real brotherof the Petitioner for reopening of the case and , if the cases on whichthe present Petitioner places reliance upon, are re-opened, thematerial available would indicate that validity certificates granted toall such cases, should be set aside. Therefore, the Petitioner is notentitled for validity of his caste claim. 7 of 12 (( 8 ))WP-12522-2022-Judgment11. In support of these submissions, the learned AGP reliedhas on the case of Rajeshwar Baburao Bone Vs. State of Maharashtraand others (SLP No. 5778/2015) and Maharashtra Adiwasi ThakurJamat Mandal Vs. State of Maharashtra, Supreme Court Civil AppealNo.2502 of 2022.12.Needless to say that Respondent No. 2/Caste ScrutinyCommittee, has already granted validity certificate of ‘Mannervarlu’Scheduled Tribe in favour of Vivekanand Gyanoba Dhemkewad, whois the biological brother of the Petitioner. 13.This Court at the Principal Seat has delivered a judgmentin Shweta Balaji Isankar vs. The State of Maharashtra and others,2018 SCC OnLine Bom 10363 (Writ Petition No.5611/2018), decidedon 27/07/2018, wherein it is concluded in Paragraph Nos. 3 and 4 asunder :-“3.On such a finding being rendered by the Committee, wecalled upon the learned AGP on the earlier two occasions toproduce the record. We also indicated to the learned AGP as tohow the certificate of validity is denied to the petitioner thoughshe has established her relationship with the said Govind andonly on the ground that a show cause notice has been issued,but no proceedings in furtherance thereof came to be initiatedtill date. The learned AGP sought time to file an affidavit. Now,the Joint Commissioner, Schedule Tribe Scrutiny Committee,Aurangabad has filed an affidavit in reply. That is taken on 8 of 12 (( 9 ))WP-12522-2022-Judgmentrecord. The said affidavit admits that the certificate of validityhas been issued to her real uncle and cousin uncle of thepetitioner. The affidavit admits that the petitioner relies heavilyon these two documents, but clarifies that there is asuppression detected from the original record of the certificateholder and that is how a show cause notice has been issued toGovind. The show cause notice could not be taken to its logicalend on account of the huge pendency of cases before thisCommittee. In all, 7,000 matters were pending on the datewhen this Joint Commissioner took charge and he has reducedthe pendency by 2500 cases being decided. In thecircumstances, he says that appropriate orders and directionsbe issued by this Court.4. We are not impressed by this explanation and thejustification not to proceed against a person who hasperpetrated a fraud on the public. If it is a serious allegationand which is termed as fraud, then, it should have been takento its logical end. Mere issuance of a show cause notice in thepresent case would not suffice for There are two certificates ofvalidity relied upon. The only reason assigned in the impugnedorder to discard them, cannot be sustained. The justification inthe above affidavit is also not enough to straightaway discardthe certificates of validity issued in the family. It is concededthat other reasons assigned in the impugned order cannot besupported in law.”14. In the case of Apoorva Vinay Nichale (Supra), this Courthas concluded that, if several biological relatives from the paternalside have been granted validity certificates, the Committee cannotcome to a conclusion in a given case that the said candidate does notbelong to the same caste or tribe, with reference to which series ofbiological relatives have been granted validity certificates. 9 of 12
Decision
(( 10 ))WP-12522-2022-Judgment15.The Hon’ble Supreme Court in Maharashtra AdiwasiThakur Jamat Swarakshan Samiti (supra), in Paragraph Nos. 23 and38, observed as under:“23.In a given case, the Scrutiny Committee may be satisfiedthat the caste validity certificate relied upon by the applicanthas been issued after making a lawful enquiry. But if theScrutiny Committee is of the view that the applicant has notclearly established that the person to whom caste validitycertificate produced on record has been granted is his bloodrelative, in terms of sub-rule (2) of Rule 12 of the ST Rules, theCaste Scrutiny Committee will have to refer the case forconducting an enquiry through Vigilance Cell. In such a case,the Vigilance Cell can be directed by the Scrutiny Committee toconduct an enquiry limited to the relationship claimed by theapplicant with the person in whose favour the caste validitycertificate has been issued. If, on the basis of the report of theVigilance Cell, the Scrutiny Committee is satisfied that theperson in whose favour caste validity certificate has been issuedis a blood relative of the applicant and lawful enquiry has beenconducted before issuing the validity certificate, the ScrutinyCommittee will have to issue validity certificate even if theapplicant does not satisfy the affinity test. For example, if it isestablished that the father or grandfather of the applicant hasbeen given a caste validity certificate after holding a lawfulenquiry in accordance with law, the Caste Scrutiny Committeecannot hold that the grandfather or father of the applicant, asthe case may be, belongs to Scheduled Tribe but the applicantdoes not belong to Scheduled Tribe. Only if the relationship aspleaded by the applicant is not established, the other evidenceproduced by the applicant and the result of the affinity test canbe taken into consideration by the Scrutiny Committee.38.Thus, to conclude, we hold that: (a)Only when the Scrutiny Committee after holdingan enquiry is not satisfied with the material produced bythe applicant, the case can be referred to Vigilance Cell.While referring the case to Vigilance Cell, the Scrutiny 10 of 12 (( 11 ))WP-12522-2022-JudgmentCommittee must record brief reasons for coming to theconclusion that it is not satisfied with the materialproduced by the applicant. Only after a case is referred tothe Vigilance Cell for making enquiry, an occasion for theconduct of affinity test will arise.(b)For the reasons which we have recorded, affinitytest cannot be conclusive either way. When an affinity testis conducted by the Vigilance Cell, the result of the testalong with all other material on record having probativevalue will have to be taken into consideration by theScrutiny Committee for deciding the caste validity claim;and (c)In short, affinity test is not a litmus test to decide acaste claim and is not an essential part in the process ofthe determination of correctness of a caste or tribe claimin every case.” 16.In the case in hand, the validity as ‘Mannervarlu’Scheduled Tribe, is already granted in favour of Vivekanand GyanobaDhemkewad, who is biological brother of the Petitioner and such ason today, the said validity has not been revoked or cancelled byRespondent No. 2. Therefore, in these circumstances the pragmaticapproach pitted against a pedantic approach, would be to grant aconditional certificate to the Petitioner in the light of the law laiddown in the case of Shweta Balaji Isankar (supra) and by recordingthat the Petitioner would face a re-opened case as regards his validitycertificate, if his real brother, who has been granted validitycertificate, suffers invalidation on account of re-opening of his case 11 of 12 (( 12 ))WP-12522-2022-Judgmentand he would not be entitled to any service benefits in view ofChairman and Managing Director Food Corporation of india andothers Vs. Jagdish Balaram Bahira and others, (2017) 8 SCC 670.17.In view of above, this Writ Petition is partly allowed. ThePetitioner shall furnish an affidavit undertaking with RespondentNo.3/Employer that in case his case is re-opened and he suffers aninvalidation of his caste claim, he would not be entitled to any servicebenefits. The Respondent No. 2 is hereby directed to issue the validitycertificate in favour of Petitioner belonging to ‘Mannervarlu’Scheduled Tribe category, within a period of 90 days from today, onthe condition that in the event, the biological brother of the Petitionersuffers invalidation on account of re-opening of his case, thepetitioner would be liable to suffer the same consequences. 18.Rule is made partly absolute in the above terms. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 12 of 12