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2008 DIGILAW 1402 (BOM)

Shivaji Shankar Konkewad v. State of Maharashtra

2008-09-25

F.I.REBELLO, K.U.CHANDIWAL

body2008
JUDGMENT : ( PER: F.I. REBELLO, J.) 1.Rule, heard forthwith. 2. The petitioner approached this court contending that the decision of the Committee, invalidating his claim, as belonging to "Mahadeo Koli", scheduled tribes, suffers from an error of law apparent on the face of record. The learned counsel has framed his challenges as under : (1) In the instant case, Rule 12(3) of the Rules made under the Maharashtra Scheduled Castes, Scheduled Tribes, Other Backward Classes and Special Backward Category Regulation of Caste Certificate Act, 2000, provides for home enquiry to be done, and if that has not been done, it amounts to a serious infirmity, affecting the rights of the parties being a part of the procedural aspects and consequently the order is liable to be set aside. (2) It is next submitted that the Committee has placed reliance on the the school record of his brother shows that entry as ’Koli’, in spite of the fact that record has been corrected by following due procedure wherein the petitioner’s brother’s tribe is now shown as "Mahadeo Koli". (3) It is further submitted that insofar as tribal traits and characteristics are concerned, there is no material to indicate as to what has been considered by the Committee. On the other hand, on behalf of the Committee, learned counsel submits that the statement of the petitioner’s father was recorded and whether it was recorded in the village or in the office, if it was so done, that would be the sufficient compliance of the requirement of the Rule insofar as home enquiry. It is further submitted that insofar as the petitioner’s brother’s school record is concerned, the Committee has noted that the change was effected solely based on petitioner’s brother obtaining caste certificate and therefore of no consequence and could not be relied upon by the Committee. Insofar as the tribal traits and characteristics are concerned, learned counsel drawn our attention to the judgment of this court in Murlidhar vs. State of Maharashtra, reported in, 2007 (3) Mh. L.J. 308, wherein this court has observed as under : " We called on learned counsel for the petitioner to show from the petition any averment by the petitioner contending that what was reproduced in the order are affinities to Thakur Scheduled Tribes. There are no such pleadings." 3. Coming to the first contention, the Committee is a creature of Statute. There are no such pleadings." 3. Coming to the first contention, the Committee is a creature of Statute. The procedure is as laid down by the Rules. Rule - 12 provides for the procedure to be followed by the Scrutiny Committee while considering verification of the caste claim of the applicant. It is not necessary for us to go indepth into the matter as the issue regarding procedure has been considered by us in the unreported judgment in Mahesh P. Lad vs. State of Maharashtra and others in W.P.No.4068/2008 decided on 14th July 2008. However, it must be mentioned that it is not open to the Committee to by-pass the procedure. If the Committee on the documents produced is not satisfied that the petitioner belongs to the caste/tribe which he claims, then in that event, the Committee is bound to call for a Vigilance report. The vigilance report has then to be prepared in terms of the procedure. The vigilance officer therefore was bound to complete the inquiry as set out under the rules. Rule - 12(3) reads as under: "The Vigilance Officer shall go to the local place of residence and original place from which the applicant hails and usually resides,or in case of migration, to the town or city or place from which he originally hailed from." The object behind this rule is to enable the Committee to have a material from the area in which the petitioner resides. Normally insofar as tribes are concerned, it is accepted position that they normally inhabit the same villages or reside in clusters, unless there has been migration. In our opinion, therefore, once there is a provision, that provision cannot be by-passed by merely contending that the father was called by the office of the Village Officer. The purport of the rule is to enable the committee to have material from the locality as to the applicant’s claim as Scheduled Tribe, both as to traits and characteristics from relatives and independent sources. The object has been explained in the judgment of this court in Prabhu s/o Narayan Survase vs. State of Maharashtra, 2004(4), ALL M.R. 815. In the instant case, vigilance officer only recorded statement of the petitioner’s father. The object has been explained in the judgment of this court in Prabhu s/o Narayan Survase vs. State of Maharashtra, 2004(4), ALL M.R. 815. In the instant case, vigilance officer only recorded statement of the petitioner’s father. In a case where the Committee wishes not to consider documentary evidence, on the basis that they are of recent origin, the vigilance report assumes a greater role in considering the claim of an applicant. 4. Insofar as documents submitted, it is true as observed in its order that the correction in school record was made based on caste certificate. In our opinion, we cannot find fault in this reasoning of the Committee. A mere correction in record based on caste certificate by itself cannot be considered as evidence based on which the claim of an applicant can be considered. Such documentary evidence, therefore, cannot be considered as of probative value. We, therefore, cannot find fault in the approach of the Committee, on this aspect. 5. The third aspect is in respect of tribal traits and characteristics. The Committee which is constituted normally consists of a Research Officer having experience as to tribal traits and characteristics and in respect of castes of trades and occupations. We find in a large number of matters there is hardly any discussion by the Committee for rejecting the claim as to affinity while disposing of claims. In such matters as we have noted in the case of Murlidhar (Supra), if the petitioner approaches this court and contends that though he had deposed or placed material about tribal traits and characteristics of a particular tribe, then such particulars must be set out in the petition to enable this court to answer the contentions. That however does not absolve the committee not to give reasons as to how they have arrived at the conclusion that the petitioner’s tribe claim as to traits and characteristics was rejected on the consideration of the material merely stating that the petitioner has not satisfied as to Gods and Goddesses. That however does not absolve the committee not to give reasons as to how they have arrived at the conclusion that the petitioner’s tribe claim as to traits and characteristics was rejected on the consideration of the material merely stating that the petitioner has not satisfied as to Gods and Goddesses. In our opinion, therefore, the petitioner who come to this court contending that the Committee did not address itself as to tribal traits and characteristics or has not given reason must plead and place the material in the form of documentary or other evidence which has been relied upon in support of the claim, to enable this court to consider that aspect of the matter. 6. In the instant case, there was documentary evidence which the Committee considered to be of recent origin and as such not sufficient to issue caste validity certificate. The Committee, therefore, called for vigilance report. The vigilance report is not in terms of Rule 12(3) of the Rules. The impugned order is liable to be set aside. The matter is remanded back to the Committee for consideration afresh, according to law. 7. We may also note that the Counsel for the Committee has drawn our attention to the affidavit of Bharat s/o Kishanrao Konkewar, who is cousin brother of the petitioner, in whose favour caste validity certificate was issued. In the petition at Exhibit-C, the petitioner has set out genealogy of his family tree. Said Bharat in his affidavit has produced before the Committee in another proceedings his family genealogy which substantially varies from the genealogy which was produced before this court. In such cases, where evidence is produced which falls with the knowledge of the party producing it, is open to the Committee while examining the evidence to drawn adverse inference against a party who produce such evidence. 8. Considering that, we remand the matter back to the Committee. The respondents, where the petitioner is employed, not to terminate his services, but to await the decision of the Committee. The Committee to decide the matter within a period of six weeks. The petitioner to appear before the Committee on 06-10-2008 at 11-00 a.m. for further direction. 9. Rule made absolute accordingly, with no order as to costs.