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Madhya Pradesh High Court · body

2018 DIGILAW 326 (MP)

Geeta Majhi v. State of M. P.

2018-03-19

ASHOK KUMAR JOSHI, SANJAY YADAV

body2018
ORDER 1. With the consent of learned counsel for the parties, the matter is finally heard. 2. This appeal under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal), Adhiniyam 2005 is directed against the order dated 24.10.2017 passed in Writ Petition No. 7294/2016; and order dated 31.1.2018 passed in Review Petition No. 1276/2017. 3. The Writ Petition filed by the present appellant was directed against the order dated 7.10.2016 whereby Joint Director, Urban Administration and Development Department, Gwalior Chambal Division, Gwalior, directed Chief Municipal Officer, Municipal Council, Bhind to lodge an FIR against the present appellant on the allegation of forged caste certificate produced by her in obtaining the employment. The order is in the following terms:- ^^Øekad -lk-f'k@22@vkarjh@2016@6000 Jh ts- ,u- ikjk eq[; uxj ikfydk vf/kdkjh uxj ikfydk ifj"kn fHk.M ftyk fHk.M fo"k;&QthZ tkfr izek.k i= ls ukSdjh ,oa inksUufr ckor~A mijksDr fo"k;kUrxZr ys[k gS fd mDr f'kdk;r dh leh{kk vk;qDr Xokfy;j laHkkx Xokfy;j }kjk dh tk jgh gS ,oa Jherh xhrk eka>h ds }kjk izFke fu;qfDr ds volj ij vkidh fudk; esa izLrqr tkfr izek.k i= dh tk¡p esa izek.k i= lfnX/k ik;k x;k gSA vr% vki Jherh xhrk eka>h ds fo#) izkFkfedh ntZ djkdj ikyu izfrosnu bl dk;kZy; esa izLrqr djuk lqfuf'pr djs ,oa mDr izdj.k ls lEcfU/kr vfHkys[k izkIr djus gsrq vkidh fudk; ls fo'ks"k okgd dks bl dk;kZy; esa fHktokus dh O;oLFkk lqfuf'pr djsaA ¼vkj- ds dkfrZds;½ la;qDr lapkyd uxjh; iz'kklu ,oa fodkl Xokfy;j@pEcy laHkkx Xokfy;j Xokfy;j fnukad 7-10-2014 4. The challenge was on the ground that the certificate was duly issued to the appellant by the competent authority on 12.7.1992 and without adhering to the procedure as prescribed by the Supreme Court in the case of Ku. Madhuri Patil and another v. Additional Commissioner, Tribal Development and Others, [ (1994) 6 SCC 241 ], and without there being any order of Empowered Committee constituted by the State of Madhya Pradesh in furtherance to order passed by Supreme Court in the case of Ku. Madhuri Patil (supra), the authority concerned merely on the basis of letter by the Commissioner, Gwalior Division, Gwalior directed for lodging an FIR. 5. Learned Single Judge vide impugned order dismissed the petition on the finding that prima facie the case of commission of cognizable offence has been made out. 6. Madhuri Patil (supra), the authority concerned merely on the basis of letter by the Commissioner, Gwalior Division, Gwalior directed for lodging an FIR. 5. Learned Single Judge vide impugned order dismissed the petition on the finding that prima facie the case of commission of cognizable offence has been made out. 6. The review petition filed by the appellant was also dismissed with a further finding that the appellant sought employment on the basis of forged caste certificate, which is the issue before the departmental authorities. 7. After hearing the learned counsel for the parties and taking into consideration the fact that the caste certificate was issued in favour of the appellant on 12.7.1992 and that no steps seems to have been taken by the authorities concerned for referring the matter to the Empowered Committee, in our considered opinion it is beyond jurisdiction of the departmental authority to have directed for lodging of an FIR on the presumption that the said certificate has been obtained by fraud. 8. In Anand v. Committee for Scrutiny and Verification of Tribe Claims and others [ (2012) 1 SCC 113 ], it is held : “20. The rules further stipulate that the Vigilance Officer shall personally verify and collect all the facts about the social status claimed by the applicant or his parents or guardians, as the case may be. He is also required to examine the parents or the guardians or the applicant for the purpose of verification of their tribe. It is evident that the scope of enquiry by the Vigilance Officer is broad-based and is not confined only to the verification of documents filed by the applicant with the application or the disclosures made therein. Obviously, the enquiry, supposed to be conducted by the Vigilance Officer, would include the affinity test of the applicant to a particular tribe to which he claims to belong. In other words, an enquiry into the kinship and affinity of the applicant to a particular Scheduled Tribe is not alien to the scheme of the Act and the Rules. In fact, it is relevant and germane to the determination of social status of an applicant. 22. In other words, an enquiry into the kinship and affinity of the applicant to a particular Scheduled Tribe is not alien to the scheme of the Act and the Rules. In fact, it is relevant and germane to the determination of social status of an applicant. 22. It is manifest from the aforeextracted paragraph that the genuineness of a caste claim has to be considered not only on a thorough examination of the documents submitted in support of the claim but also on the affinity test, which would include the anthropological and ethnological traits etc., of the applicant. However, it is neither feasible nordesirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim. Nevertheless, we feel that the following broad parameters could be kept in view while dealing with a caste claim: (i) While dealing with documentary evidence, greater reliance may be placed on pre-Independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-Independence documents. In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant; (ii) While applying the affinity test, which focuses on the ethnological connections with the scheduled tribe, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor. However, with the migrations, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. However, with the migrations, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a scheduled tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that his present traits do not match his tribes' peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.” 9. In view whereof, the impugned order when is tested on the anvil of above analysis cannot be given the stamp of approval. 10. Consequently, order dated 24.10.2017 passed in Writ Petition No. 7294/2016 and order dated 31.3.2018 passed in Review Petition No. 1276/2017 are set aside. The impugned communication dated 7.10.2016 is quashed. The departmental authorities, however, would be at liberty to take recourse to law by referring the matter to Empowered Committee for determination of caste status of the appellant as also of the caste certificate issued in favour of the appellant on 12.7.1992. 11. Appeal is disposed of finally in above terms. No costs.