RAVINDRA v. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON
Facts
( 1 ) wp 13653.23 tokre koli STIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 13653 OF 2023 Vishal s/o Popat SapkaleAge: 30 years, Occu: Service,R/o At Post Sunode,Tq. Raver, Dist. Jalgaon....PETITIONERV/s.1.Schedule Tribe Certificate ScrutinyCommittee, Dhulethrough its Member Secretary.2.Superintendent of Police,Police Superintendent Office,Jalgaon through its Commissioner.3.Rahul Sukhdeo Chavan,Age: 28 yrs, Occ: Unemployed,R/o Tadepura Dharangaon Road,Pardhiwada, Amalner,Tq. Amalner, Dist. Jalgaon. ... RESPONDENTS...Mr. Mahesh P. Deshmukh, Advocate for the PetitionerMr. P.K. Lakhotiya, AGP for Respondent-StateMr. Y.B. Bolkar h/f. A.B. Girase for Advocate for Respondent No.3…CORAM : RAVINDRA V. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON :4th December, 2023 PRONOUNCED ON :22nd December, 2023 ( 2 ) wp 13653.23 tokre koli STJUDGMENT (Per: Y.G. Khobragade, J.) :-1.Rule. Rule made returnable forthwith and heard finally with theconsent of the parties.2.By the present petition under Article 226 of the Constitution ofIndia, the Petitioner has prayed for quashing and setting aside of theJudgment/Order dated 4th October, 2023 passed by Respondent No. 1 i.e.Caste Scrutiny Committee thereby invalidating the caste claim of the petitionerbeing “Tokre Koli” Scheduled Tribe and issuance of directions againstRespondent No. 1 to declare his caste being “Tokre Koli” Scheduled Tribe and toissue Caste validity certificate in his favour. 3.Brief facts are that the Petitioner belongS to “Tokre Koli” ScheduledTribe. On 15.09.2022, the Sub-Divisional Officer, Faizapur, Dist. Jalgaon issueda “Tokre Koli” Scheduled Tribe, Caste Certificate. In the year 2019, theSuperintendent of Police, Jalgaon conducted recruitment process for the post ofConstable. In pursuance of said advertisement, he submitted his candidature.After completion of selection process, he was appointed as Police Constable(Group-2) vide appointment order dated 24.02.2022 against the reservedScheduled Tribe category and he is still working on the said post. On16.09.2022, his Employer i.e. Respondent no. 2 forwarded proposal of his casteclaim for scrutiny to Respondent No.1. He produced all documentary evidence
Legal Reasoning
( 11 ) wp 13653.23 tokre koli ST14.After having gone through the records, we find that the SchoolAdmission Register, the birth entries were mainly relied upon by the Petitioner.The record reveals that many entries in the birth register made in the names ofthe blood relatives of the Petitioner as “Hindu Koli”, “Hindu Suryavanshi Koli”,“Hindu other backward Caste”. The details have been dealt with by theVigilance report. 15.In the case of State of Maharashtra V/s. Milind and others; 2001(1) SCC 4, the Hon’ble Apex Court has held as:“1. It is not at all permissible to hold any enquiry or let in anyevidence to decide or declare that any tribe or tribal community orpart of or group within any tribe or tribal community is included inthe general name even though it is not specifically mentioned in theconcerned Entry in the Constitution ) Scheduled Tribes) Order,1950.2. The Scheduled “Tribes Order must be read as it is. It is noteven permissible to say that a tribe, sub-tribe, part of or group of anytribe or tribal community is synonymous to the one mentioned inthe Scheduled Tribes Tribes if they are not so specially mentionedin it.”16.It is submitted that, the entries from the birth and death registerwould prevail over the School register entries. In the case of CIDCO V/s.Vasudha Mandevlekar; (2009) 7 SCC 283, the Hon'ble Apex Court held inparagraph no. 18 that, the death and birth register maintained by the Statutory ( 12 ) wp 13653.23 tokre koli STAuthorities raises a presumption of correctness. Such entries made in thestatutory registers are admissible in evidence in terms of Section 35 of theIndian Evidence Act. It would prevail over an entry made in the SchoolRegister, particularly in the absence of any proof that the same was recorded atthe instance of the guardian of the Respondent.17.The caste of the Petitioner’s cousin grand-fathers namelyRamkrushna Vithu Koli, Raghunath Vithal Sapkale and Petitioner’s realgrandfather Shri Dashrath Ganu Sapkale, as per the birth register is shown as“Hindu Koli”. The Caste of cousin sister of Petitioner’s grandfather is recordedas “Hindu Suryavanshi Koli”. These entries are pre-independence. The caste ofthe Petitioner’s father is recorded as “Hindu Other Backward Class”, however,for first time the caste of the Petitioner is shown as “Hindu Koli, SpecialBackward”. 18.A detailed discussion of facts and law lead us to arrive at theconclusion that the birth entries would prevail over the entries in the schoolregisters. The Petitioner failed to prove his Caste as Tokare Koli, ScheduledTribe as recorded in his caste certificate issued by the Sub-Divisional Officer,Faijapur, Dist. Jalgaon. Nonetheless, the caste certificate which was issued infavour of the Petitioner bearing outward No. MAG/ WS/ ST/ 1693/2010 dated23.05.2010 by the Divisional Officer, Jalgaon was found to be fabricated and
Arguments
( 3 ) wp 13653.23 tokre koli STin support of his caste claim. Respondent No.1 had called Vigilance Report,which has was submitted on 08.12.2022. The vigilance cell report was dulycommunicated to the Petitioner with show cause notice dated 12.12.2022 withdirections to remain present before the Scrutiny Committee on 29.12.2022along with explanation, but due to some technical problem, hearing wasadjourned till 05.01.2023, on 05.01.2023 time was sought to file reply. On19.01.2023, a detailed reply to the Vigilance Cell report was filed, but hearingwas postponed on various dates due to technical reasons. On 10.08.2023, healong with his counsel appeared before the Respondent No.1 and had soughttime to file reply on documents given to him during the course of hearing andmatter was postponed on 28.08.2023, but again hearing was adjourned to31.08.2023). Lastly, on 13.09.2023, his counsel sought adjournment, but it wasrejected and matter was closed for orders. On 04.10.2023, the RespondentNo.1 - Scrutiny Committee passed the impugned order thereby invalidating hisScheduled Tribe caste claim on the ground that the Petitioner failed to producecorroborative documents to prove affinity test and no validity certificate of hisblood relatives were produced to support to his caste claim.4.Mr. Mahesh S. Deshmukh, the learned advocate appearing for thePetitioner vehemently canvassed that the Petitioner submitted various pre-independence era documents of his blood relatives viz., birth registration ( 4 ) wp 13653.23 tokre koli STcertificates in respect of Narmada Ganu Sapkale, the real sister of his grand-father, who was born on 16.02.1936, birth certificate of Shri RaghunathSapkale, the cousin grand-father who was born on 01.02.1938, birth certificateof Shri Dashrath Ganu Sapkale, real grand-father who was born on 03.03.1950,birth certificate of Shri Ramkrushna Vithu, the cousin grand-father who wasborn on 06.06.1932, birth certificate of Shri Supudu Totaram Sapkale, thecousin grand-father who was born on 01.06.1946, birth certificate of his fatherShri Popat Dashrath Sapkale, who was born on 01.06.1977 and extract ofSchool Register entry dated 03.06.2000, however, Respondent No.1 failed toconsider the said documentary evidence as well as the reply to the VigilanceCell report and invalidated the caste claim of the Petitioner, which is illegal, badin law and hence, prayed for quashing and setting aside the impugned order. 5.The learned advocate for the Petitioner further canvassed that, on10.08.2023, the Petitioner with his advocate duly appeared before RespondentNo.1 and had sought time to file reply on the documents provided to thePetitioner during the course of hearing. The matter was postponed to28.08.2023 and thereafter to 31.08.2023 and lastly on 13.09.2023, thePetitioner sought time. But the said request was rejected and the matter wasabruptly closed for orders. Therefore, Respondent No.1 failed to give areasonable opportunity of hearing to the Petitioner and passed the impugned ( 5 ) wp 13653.23 tokre koli STorder. Hence, it is violation of the principles of natural justice. Therefore,prayed for quashing and set aside the impugned order.6.Per contra, Mr. P. K. Lakhotiya, the learned Assistant GovernmentPleader appearing for the Respondent Nos.1 & 2 submits that the Vigilance CellOfficer has intensely scrutinized the birth records produced by the Petitionerand collected relevant documents to verify the genuineness and authenticity ofthe documents relied upon by the Petitioner. There are contra entries in the olddocumentary record in respect of caste of the Petitioner. So also, the affinitytest does not prove caste claim of the Petitioner. Hence, prayed for dismissal ofthe petition. 7.Adv. Y.B. Bolkar, the learned counsel appearing for RespondentNo.3, orally submitted that in selection process of Police Constable, thePetitioner and Respondent No.3 were selected under Scheduled Tribe category.The name of the Petitioner was enlisted at Sr. No. 1 and Respondent No.3 waskept at sr. no.1 on the waiting list. However, after the selection process, inorder to ascertain whether the Petitioner belongs to Scheduled Tribe or not,Respondent no. 3 solicited Caste Certificate of the Petitioner which was issuedunder outward No.MAG/ WS/ ST/ 1693/2010 dated 23.05.2010 from theoffice of Divisional Officer, Jalgaon, but the said Caste certificate was fabricatedand found to be bogus which has been submitted for scrutiny before ( 6 ) wp 13653.23 tokre koli STRespondent No.1. Therefore, vide order dated 01.08.2022, Respondent No.1confiscated the said Certificate on the ground of a spelling mistake in the CasteCertificate “Tokare Koli” instead of “Tokre Koli” and the Petitioner was directedto obtain a fresh Caste Certificate. However, the Petitioner obtained anotherCaste Certificate from the Office of Sub-Divisional, Faijapur, through onlineprocess on 14.09.2022, which was submitted for the scrutiny. Thereafter,Respondent No.3 obtained information under the Right to Information Act on09.11.2022, the information solicited by the Petitioner from the Office of Sub-Divisional Officer with respect to the date and outward number of thePetitioner’s Caste Certificate, but it was not found in the office record at entryno. 1693 for the year 2010 and it it does not contain said serial number.Therefore, the Petitioner committed forgery and secured a Government Job onthe basis of a forged Caste Certificate. Therefore, he prayed for dismissal of thepetition. 8.Having regard to the rival submissions canvassed on behalf of boththe sides, we have gone through the record. It is not in dispute that vide theappointment order dated 24.02.2022 issued by the Superintendent of Police,the Petitioner was appointed as a Police Constable (Group-2) against thereserved category “Scheduled Tribe”. Therefore, his Caste claim was referredfor scrutiny to the Respondent No.1. On 16.09.2022, the appointing authority ( 7 ) wp 13653.23 tokre koli STof the Petitioner referred the caste claim of the Petitioner for scrutiny. In orderto prove his caste as “Tokare Koli Schedule Tribe”, the Petitioner producedcertain documents of his blood relatives viz., birth registration certificates inrespect of (1) Narmada Ganu Sapkale, the real sister of his grand-father whowas born on 16.02.1936. (2) The birth certificate of Shri Raghunath Sapkale,his cousin grand-father, who was born on 01.02.1938. (3) The birth certificateof Shri Dashrath Ganu Sapkale, his real grand-father who was born on03.03.1950. (4) The birth certificate of Shri Ramkrushna Vithu, his cousingrand-father, who was born on 06.06.1932. (5) The birth certificate of ShriSupudu Totaram Sapkale, his cousin grand-father, who was born on01.06.1946. (6) The birth certificate of the Petitioner’s father Shri PopatDashrath Sapkale, who born on 01.06.1977 and the extract of the SchoolRegister entry dated 03.06.2000. 9.During the course of the Vigilance cell inquiry, the InvestigatingAgency collected extract of School Registers pertaining to (1) Narmada GanuSapkale, (2) Shri Raghunath Sapkale, (3) Shri Dashrath Ganu Sapkale (4) Thebirth certificate of Shri Ramkrushna Vithu, (5) Shri Supadu Totaram Sapkale,(6) Shri Popat Dashrath Sapkale, the Petitioner’s father and (7) Vishal PopatSapkale, the Petitioner himself. The Vigilance Cell Report clearly reveals that,Narmada Ganu Sapkale is the real sister of Petitioner’s grand-father who was ( 8 ) wp 13653.23 tokre koli STborn on 16.02.1936. However, in reply to the Vigilance Cell Report at Exh.D,the Petitioner denied his blood relation with Narmada Ganu Sapkale and hername has not been disclosed in the genealogy. The Vigilance Cell reportreflects that Narmada Ganu Sapkale is the real sister of Dashrath Ganu Sapkale,the real sister of the grandfather of the Petitioner. The Petitioner failed tobring sufficient material on record to disprove the relationship betweenNarmada Ganu Sapkale and his real grand-father Shri Dashrath Ganu Sapkale. 10.It is needless to state that the Vigilance Cell collected SchoolRegister and Birth entry extracts of the Petitioner’s forefathers. The entries inbirth extract of forefathers of the Petitioner is mentioned as “Hindu Koli”,“Hindu Suryavanshi Koli”, “Hindu other backward” and “Hindu Koli SpecialOther Backward”. The Vigilance Cell submitted the report, which does notprove that the Petitioner belongs to “Tokare Koli Scheduled Tribe”. ThePetitioner was served with the show cause notice dated 12.12.2022 along withthe copy of Vigilance Cell Report calling upon him to submit his explanation.Accordingly, the Petitioner submitted his explanation on 24.11.2022, but thePetitioner has not countered the report of the Vigilance Cell and nodocumentary evidence was brought on record to prove that he belongs toTokare Koli, Scheduled Tribe. It is well settled that, an affinity test is not alitmus test, and certainly, the documentary evidence would prevail over the so- ( 9 ) wp 13653.23 tokre koli STcalled affinity test as laid down in case of Saurabh Ashok Nikam V/s. State ofMaharashtra & Anr. in Writ Petition No. 241 of 2022, decided on 06.01.2022. 11.The Petitioner has mainly relied on the following birth entriesrecord as under:- Sr.NoDescription ofDocumentName of Person onthe DocumentBlood Relationwith theApplicant Entry of CasteDate ofEntry1School RecordRamkrushna VithuKoliCousin grand-fatherHindu Koli06.06.19322School RecordNarmada D/o GanuSapkaleSister ofGrandfatherHinduSuryavanshi Koli17.06.19423School RecordRaghunath VithalSapkaleCousinGrandfatherHindu Koli19.07.19444School RecordDashrath GanuSapkaleGrandfatherHindu Koli03.03.19505School RecordSupudu TotaramSapkaleCousinGrandfatherHinduSuryavanshi Koli01.06.19556School RecordPopat DashrathSapkaleFatherHindu OBC13.06.19777School RecordVishal Poat SapkaleApplicant(Petitioner)Hindu Koli Spl.Backward03.06.200012.It is an admitted fact that, the petitioner has not produced even asingle caste validity certificate of his blood relatives. Though, the Petitionersubmitted that he belongs to Tokare Koli recognized as Scheduled Tribe,however, the Petitioner has not given any satisfactory reasons, as to how,“Hindu Koli”, “Hindu Suryavanshi Koli”, “Hindu other backward Caste” were ( 10 ) wp 13653.23 tokre koli STrecorded in birth entries of his forefather. Therefore, Respondent No.1 opinedthat the Petitioner did not belong to Tokare Koli, Scheduled Tribe. 13.In the case of Anand V/s. Committee for Scrutiny and Verificationof Tribe Claims and Ors.; (2012) 1 SCC 113, the Hon’ble Apex Court hasobserved in para No. 22 as under:“22. It is manifest from the afore extracted paragraph thatthe genuineness of a Caste claim has to be considered notonly on a through examination of the documents submittedin support of the claim but also on the affinity test, whichwould include the anthropological and ethnological traits,etc., of the applicant. However, it is neither feasible nordesirable to lay down an absolute rule, which could beapplied mechanically to examine a Caste claim.Nevertheless, we feel that the following broad parameterscould be kept in view while dealing with a Caste claim:(i) While dealing with documentary evidence, greaterreliance may be placed on pre-Independence documentsbecause they furnish a higher degree of probative value tothe declaration of status of a Caste as compared to post-independence documents. In case the applicant is the firstgeneration ever to attend School, the availability of anydocumentary evidence becomes difficult, but that ipso factodoes not call for the rejection of his claim. In fact, the merefact that he is the first generation ever to attend School,some benefit of doubt in favour of the applicant may begiven. Needless to add that in the event of doubt on thecredibility of a document, its veracity has be be tested onthe basis of oral evidence, for which an opportunity has tobe afforded to the applicant”.
Decision
( 13 ) wp 13653.23 tokre koli STbogus by Respondent No.1. Therefore, vide order dated 01.08.2022,Respondent No.1 confiscated the said fabricated and bogus certificate and thePetitioner was directed to obtain a fresh caste certificate. However, thePetitioner obtained another caste certificate from the Office of Sub-Divisional,Faijapur, through the online process on 14.09.2022, which resulted in it’sinvalidation. The Petitioner failed to produce any substantial documents toprove his caste claim “Tokre Koli Scheduled Tribe”. The findings recorded bythe Scrutiny Committee are well founded on documentary evidence. Thus, it isnot permissible for this Court to interfere with such findings of facts in our Writjurisdiction. No interference is thus warranted. 19.In view of the above discussion, the present petition is herebydismissed. Accordingly, Rule is discharged. No orders as to costs. 20. After the judgment was pronounced, the learned Advocate for thePetitioner sought continuation of the interim order.21. The learned Advocate for the added Respondent No.3 and thelearned AGP submit that ad-interim protection was granted on 01.11.2023 upto28.11.2023. Moreover, the Petitioner has been appointed on 24.02.2022 as aconstable and he is on probation. ( 14 ) wp 13653.23 tokre koli ST22. In view of the above and considering the conclusions drawn by uswith regard to the conduct of the Petitioner, the request for continuation of theinterim order is refused. [Y.G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub