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2021 DIGILAW 1796 (BOM)

Nanda v. State Of Maharashtra

2021-12-20

A.S.CHANDURKAR, G.A.SANAP

body2021
JUDGMENT G.A.SANAP,J. 1. The petitioner has challenged the order dtd. 9/8/2000 passed by the respondent No. 2- the Scheduled Tribe Caste Scrutiny Committee, Nagpur whereby the Committee invalidated the Caste Certificate of the petitioner belonging to 'Halba' Scheduled Tribe. 2. It is the case of the petitioner that she took primary education in Girls' School, Maskasath, Nagpur. She took her further school education from New English High School, Nagpur. In the school record, the caste of the petitioner is recorded as 'Halba'. On the basis of the copy of the School Leaving Certificate the Executive Magistrate, Nagpur had granted the Caste Certificate of 'Halba' Scheduled Tribe to the petitioner. The petitioner applied for the employment in Irrigation Department of the State of Maharashtra, Mantralaya, Mumbai against the seat reserved for Scheduled Tribe category. On selection the petitioner joined the post on 3/9/1998. 3. The father of the petitioner took education in New English High School, Nagpur between 25/4/1952 and 31/3/1958. In the school record of father, his caste was recorded as 'Halba'. On the basis of the School Leaving Certificate Sub Divisional Officer, Nagpur had granted the Certificate of 'Halba' Scheduled Tribe to the father of the petitioner. Her father was also appointed as 'Clerk' in Central Railway at Chandrapur with effect from 8/3/1963 on the post reserved for Scheduled Tribe. Her father took voluntary retirement with effect from 31/3/1999. The petitioner has relied upon the certificate of 'Halba' Scheduled Tribe issued in favour of her father to substantiate her claim. 4. The Caste Certificate of the petitioner, on her appointment, was sent for verification to the respondent No. 2 - Committee, by respondent No. 1. In the inquiry conducted by the respondent No. 2, the petitioner was granted an opportunity to present her case. The Police Vigilance Cell's report was served upon her. She filed her reply to the said report. The petitioner pointed out that her father belongs to 'Halba' caste and the said caste was recorded in his school record by scoring out the incorrect caste namely 'Koshti'. The respondent No. 2 vide order dtd. 9/8/2000 invalidated the 'Halba' Scheduled Tribe claim of the petitioner. According to the petitioner, this decision of the Caste Scrutiny Committee is not sustainable in view of the concrete evidence placed before Committee by the petitioner. The respondent No. 2 vide order dtd. 9/8/2000 invalidated the 'Halba' Scheduled Tribe claim of the petitioner. According to the petitioner, this decision of the Caste Scrutiny Committee is not sustainable in view of the concrete evidence placed before Committee by the petitioner. According to the petitioner, the inquiry conducted by the Caste Scrutiny Committee was not according to law. The petitioner on these averments prayed for setting aside the order of the Caste Scrutiny Committee and declaration of her caste being 'Halba' Scheduled Tribe. 5. The Research Officer filed the reply on behalf of the respondent No. 2. He has denied the facts stated in the petition. The Research Officer supported the order, passed by the Caste Scrutiny Committee, invalidating the 'Halba' Scheduled Tribe claim of the petitioner. It is contended that the Caste Certificate obtained by the petitioner was on the basis of the school record of her father. The school record of her father was found insufficient and not reliable to accept the claim of the petitioner. The Caste Scrutiny Committee during the course of inquiry received the Police Vigilance Cell's report. The Police Vigilance Cell's report pointed out that in the school record of the father of the petitioner, the entry of caste 'Koshti' was scored and in its place 'Halba' was inserted on the strength of the affidavit. According to the respondent, this change of the caste in the school record was not permissible. The required procedure was not followed. There was no other evidence to substantiate the tribe claim of the petitioner. The tribe claim of the petitioner was rejected by recording cogent reasons. The petitioner was not entitled to get the benefit of the reservation on the basis of the Caste Certificate. 6. We have heard the learned Advocate for the petitioner and the learned Assistant Government Pleader for the respondent. We have gone through the record and proceedings. 7. The learned Advocate for the petitioner submitted that the Caste Scrutiny Committee has not recorded cogent and acceptable reasons for discarding the School Leaving Certificate of the father of the petitioner wherein his caste was mentioned as 'Halba'. According to the learned Advocate, on the basis of the Caste Certificate of the father of the petitioner and the other School records, the petitioner has established that she belongs to Scheduled Tribe category. In the submission of the learned advocate, the Caste Certificate dtd. According to the learned Advocate, on the basis of the Caste Certificate of the father of the petitioner and the other School records, the petitioner has established that she belongs to Scheduled Tribe category. In the submission of the learned advocate, the Caste Certificate dtd. 5/12/1962 issued in favour of the father of the petitioner, by the competent authority, should not have been discarded by the Caste Scrutiny Committee. The learned Advocate submitted that the extract of the admission register, issued from New English High School Mahal, Nagpur, where the caste of the father of the petitioner was corrected from 'Koshti' to 'Halba', should not have been discarded on the basis of the Police Vigilance Cell's report. In order to substantiate the submission that once the Caste Certificate is issued in favour of the relatives of the applicants accepting the tribe claim, the claim of the petitioner should not have been rejected, the learned Advocate has placed reliance on the decisions in the case of Gayatrilaxmi Bapurao Nagpure v. State of Maharashtra (1996) 3 SCC 685 , Pradipkumar S/o. Krishnarao Dange v. The State of Maharashtra WP No. 1621/2003 dt.18/10/2012, Ku. Yashashree d/o. Bhimrao Hedaoo v. The Scheduled Tribes Caste Certificate Scrutiny Committee WP No. 3460/2005 dt. 23/10/2012, Abyay Shrawanji Parate v. State of Maharashtra 1984 Mah LJ 289. In these decisions it is held that the Caste Certificates issued in favour of the near relatives and decisions on the caste claim given in respect of certain blood relations by the Scrutiny Committee should be accepted as a valid. It is further held that the documents supporting the caste claim of pre-independence period cannot be brushed aside. 8. The learned Assistant Government Pleader submitted that Caste Scrutiny Committee has recorded the reasons while discarding the School Leaving Certificate, extract from the school register and the Caste Certificate issued in favour of the father of the petitioner. The learned AGP submitted that in the absence of contemporaneous documentary evidence, the change in the entry of the caste of father of the petitioner in the School record cannot be accepted. In order to substantiate this submission, the learned AGP relied upon a Clause 26.3 and 26.4 of the Chapter II of Secondary Schools Code (For short 'S. S. Code'). In order to substantiate this submission, the learned AGP relied upon a Clause 26.3 and 26.4 of the Chapter II of Secondary Schools Code (For short 'S. S. Code'). The learned AGP submitted that there is no evidence to show the compliance of mandatory requirements of Clause 26.3 and 26.4 of the S. S. Code at the time of the correction of the caste from 'Koshti' to 'Halba' in the School record of the father of the petitioner. In the submission of the learned AGP the Caste Scrutiny Committee based on the report of the Police Vigilance Cell made thorough inquiry and therefore, invalidated the tribe claim of the petitioner being 'Halba' Scheduled Tribe. 9. Before proceeding to appreciate the submissions it would be necessary to make mention of some of the important aspects. This petition was finally decided by this Court on 26/8/2016. At that time the petitioner had given up her tribe claim. This Court relying upon the decision in the case of Arun v. State Of Maharashtra (2015) 1 Mah LJ 457, protected the service of the petitioner. This judgment was challenged by the State Government before the Hon'ble Supreme Court of India by filing Civil Appeal No. 9155 of 2019. The Hon'ble Supreme Court of India vide order dtd. 2/12/2019 allowed the appeal and set aside the judgment of this Court and remitted the matter for fresh consideration by this Court. This petition was restored to file for disposal according to law. 10. Before proceeding to consider the applicability of Clause 26.3 and 26.4 of the S.S. Code and the law laid down on the subject it would be necessary to examine the documentary evidence placed on record by the petitioner before the Caste Scrutiny Committee. The main document relied upon is the extract from the school register pertaining to the father of the petitioner. The other documents relied upon are the Caste Certificates issued in favour of the brother and father of the petitioner. The Caste Scrutiny Committee has considered all these documents. As far as the school register entry extract is concerned, the Caste Scrutiny Committee relying upon the Police Vigilance Cell's report discarded the same. This document was the foundation of the claim of the petitioner. The Caste Scrutiny Committee has considered all these documents. As far as the school register entry extract is concerned, the Caste Scrutiny Committee relying upon the Police Vigilance Cell's report discarded the same. This document was the foundation of the claim of the petitioner. It has been stated in the Police Vigilance Cell's report that the initial entry of the caste 'Koshti' was scored out and in its place the caste 'Halba' was written. The Caste Scrutiny Committee believing the Police Vigilance Cell's Report discarded this documents. The Caste Scrutiny Committee has observed that remaining documents namely the Caste Certificates of the father and brother of the petitioner and other record cannot be taken into consideration, inasmuch as the foundation of their claim was the corrected entry with regard to the caste of the father of the petitioner in the School register. The Caste Scrutiny Committee has also observed that the background, socio-cultural traits, ethnic linkage, affinity test etc. looses the significance of the Caste Certificates obtained by the father of the petitioner, brother of the petitioner and petitioner herself. The Caste Scrutiny Committee, therefore, rejected all the documents and ultimately invalidated the caste claim of the petitioner being Scheduled Tribe. 11. Since the extract of the entry of the father of the petitioner is heavily relied upon, it would be necessary to minutely perused the same. It is seen that initially the caste of the father of the petitioner was mentioned as 'Koshti'. It was scored and in its place caste 'Halba' was substituted. Perusal of this extract would show that there is no mention about the application/affidavit submitted at the time of making this change. The month and year of this correction has also not been mentioned. The name of the person responsible for making this entry has not been mentioned in the register. It is also not mentioned whether this correction was made either before or after leaving the school by the father of the petitioner. The remark's column is blank. It is pertinent to mention that when such correction is made there must be reference of the above particulars. The particulars are missing from this entry. No separate affidavit was filed before the Caste Scrutiny Committee to explain this drawback. The remark's column is blank. It is pertinent to mention that when such correction is made there must be reference of the above particulars. The particulars are missing from this entry. No separate affidavit was filed before the Caste Scrutiny Committee to explain this drawback. It is seen that on the basis of this entry, the Police Vigilance Cell's mentioned in report that this entry was corrected to mislead the Government without providing the information of the grandfather of the petitioner and his other particulars. In the background of this Police Vigilance Cell's report, which was duly communicated to the petitioner, it was obligatory on the part of the petitioner to place on record the relevant material to substantiate her claim. 12. It would be necessary in the above background to consider the provisions of Clause 26.3 and Clause 26.4 of the S. S. Code. It provides for alteration in the entries made in the General School Register. The complete mechanism and procedure has been provided therein. The Clause 26.3 and 26.4 read thus: "26.3 No alteration in the date of birth or other entries in the General Register, including correction of spelling shall be allowed without the previous permission of the appropriate authority. No such alteration in the figure of Date of Birth shall, however, be allowed even with such permission after the students has left secondary school. This shall not however preclude corrections of obvious mistakes, that is the date of a particular month which does not exist in the calendar. Before giving sanction to correct spelling or the obvious mistakes' in figures, the same shall be verified with the original evidence, if any, produced at the time of making the relevant entry. When such an alteration is made on the strength of the written order of the said authority an entry to that effect shall be made in the remarks column of the General Register by writing the number and date of the order of the said authority. The written order shall be preserved as permanent record. 26.4 Application for change or correction of date of birth, name, surname, case etc. as entered in the General Register shall be entertained from or on behalf of a pupil who is attending a school. The written order shall be preserved as permanent record. 26.4 Application for change or correction of date of birth, name, surname, case etc. as entered in the General Register shall be entertained from or on behalf of a pupil who is attending a school. Such application shall not be entertained from or on behalf of a pupil, who has left the school, as the same amounts not only to a change in the entries in the General Register but also to a change in the School Leaving Certificate. However, for the purposes like an admission to another educational institution the School Leaving Certificate is relied upon as an evidence for name, surname, caste, date of birth etc; and hence in bonafide cases where wrong spelling of a word or an obvious mistake of the type mentioned in sub-rule 3 above is noticed any time after issue of the School Leaving Certificate and the same is required to be corrected so as to be consistent with the corresponding entries in the General Register of the school or those in the School Leaving Certificate issued by the previous school, such applications shall be entertained. The procedure to be followed in such cases is laid down in Appendix Six." 13. A plain reading of Clause 26.3 and Clause 26.4 would show that without complying with the mandatory requirement the entries in the General Register cannot be changed. In this context it would be advantageous to refer the Full Bench decision of this Court in the case of Janabai D/O Himmatrao Thakur v. State Of Maharashtra (2019) 6 Mah LJ 769 and the decision in the case of Vinayak S/o. Narhari Koshikwar v. State of Maharashtra (2008) 2 Mah LJ 176. In both these decisions, the provisions of Clause 26.3 and Clause 26.4 of the S. S. Code have been considered. The Full Bench of this Court in the case of Janabai (supra), while answering the reference, laid down the law on this subject. The relevant observations are in para No. 39. It reads thus: "39. This being the position, we answer Question Nos. (A) and (C) in the following terms: (a) An application for alteration in the entries in the General Register is permissible, with the previous permission of the appropriate authority at any time when the pupil is attending the school. The relevant observations are in para No. 39. It reads thus: "39. This being the position, we answer Question Nos. (A) and (C) in the following terms: (a) An application for alteration in the entries in the General Register is permissible, with the previous permission of the appropriate authority at any time when the pupil is attending the school. (b) No application for alteration in the figure of date of birth is permissible, after the student has left secondary school, except correction in the nature of 'obvious mistakes' as indicated in Clause 26.3 i.e. of a nature where the date of a particular month which does not exist in the calendar and likewise. (c) Thus, in light of the above, an application for change in the name, surname or caste, either due to reasons/cause unnoticed before or even occurring subsequently, being errors which fall within the category of 'obvious mistakes', can be made, even after the student has left school in light of the language of Clause 26.3 in the manner as indicated by Appendix Six in the forms as prescribed in the S.S. Code. (d) For the purposes like admission to another educational institution, in cases of obvious mistakes as prescribed in Clause 26.4, a change/correction in the school leaving certificate, so as to make the entry consistent with the corresponding entries in the General Register of the School is permissible, which in fact is in consonance with (c) above." 14. In the case of Vinayak (Supra), the question similar to the one involved in this case was for consideration. The relevant observations are in para Nos. 17 and 18. It reads thus: "17. On bare reading of the above mentioned clause, it would reveal that the procedure, which is required to be followed for effecting corrections in the entries in respect of date of birth, name, surname, caste, shall have to be followed as laid down in Appendix Six. The relevant paragraphs in Appendix Six, in relation to change in caste or sub-caste (in respect of B.C. pupils only) are paragraphs 12, 13 and 14, which are reproduced as below: (12) For making changes in caste or sub-caste of Backward Class pupils the guardian of the pupil shall make an application in Form No. 3 accompanying these rules. The relevant paragraphs in Appendix Six, in relation to change in caste or sub-caste (in respect of B.C. pupils only) are paragraphs 12, 13 and 14, which are reproduced as below: (12) For making changes in caste or sub-caste of Backward Class pupils the guardian of the pupil shall make an application in Form No. 3 accompanying these rules. (13) Permission may be given to change the entries in the General Register of the school in respect of "caste" or "sub-caste" of Backward Class pupils in the following circumstances. (i) due to wrong entries made initially; (ii) due to change in religion; (iii) if the caste previously treated as non-backward was subsequently declared by Government as Backward or vice-versa. (iv) due to adoption; (v) due to inter-caste or inter-religion marriage; (14) For this purpose, the necessary certificates from the following authorities must accompany the application for change of caste or sub-caste: (a) For Reasons (i), (ii) and (iii) above: In Greater Bombay: (a) The Chief Presidency Magistrate or the Presidency Magistrate authorised by him; or (b) Justice of Peace; or (deleted). (c) Social, Welfare Officer, Greater Bombay, Bombay. In other areas: (d) The District Magistrates or Executive Magistrates authorised by them; or (e) Honorary Magistrates; or (deleted) (f) The Social Welfare Officer of the district concerned. (b) Due to adoption: The original adoption-deed or a certified copy of that deed or a certificate from stipendiary Magistrate showing the changes in name (if any) and the caste or sub-caste changed as a result of adoption should accompany the application for change in caste or sub-caste. (c) Due to inter-caste or inter-religion marriage. A declaration by the parent or guardian attested by two witnesses and the student himself/herself or certified copy of the certificate or registration of marriage should accompany the application for change in caste or sub-caste along with the certificate from the concerned competent authority mentioned in (a) above showing that the caste or sub-caste has changed as a result of the marriage. (d) Due to any other reason: Any affidavit made before a stipendiary Magistrate by the parent or guardian should accompany the application for change in caste or sub-caste. N.B. : The term "Backward Class" means and includes the following categories. 1. Scheduled Castes and Scheduled Caste converts to Buddhism. As per Scheduled Castes and Scheduled Tribes Lists Modification Order, 1956, as adopted for Maharashtra State. 2. N.B. : The term "Backward Class" means and includes the following categories. 1. Scheduled Castes and Scheduled Caste converts to Buddhism. As per Scheduled Castes and Scheduled Tribes Lists Modification Order, 1956, as adopted for Maharashtra State. 2. Scheduled Tribes including those outside specified areas. Vide Part VII-A of the Seventh and Eighth Schedule of the Bombay Reorganisation Act, 1960 and orders issued by Government in this behalf from time to time. 3. Denotified Tribes and Nomadic Tribes. As per Government Resolution, Education and Social Welfare Deptt. No. CBC.1361-M, dated the 21/11/1961 and from time to time. 4. Other Backward classes Castes which have been declared as belonging to the other Backward Classes by Government from time to time. It would thus be clear on perusal of relevant provisions contained in Secondary School Code that for effecting change in the entries in relation to caste, a specific procedure has been laid down and such changes can be effected only for the reasons recorded in paragraph 13(i) to (v) of Appendix Six. 18. In the instant case, obviously for effecting change in the school register, no procedure, as laid down in Secondary School Code, was followed, nor there was any apparent reason for effecting such change, as laid down in para 13 of Appendix Six of the Secondary School Code. The entry appears to have been changed on the basis of a certificate issued by Taluka Executive Magistrate. It is quite clear that the Taluka Executive Magistrate does not possess any authority to certify the caste for the purposes of effecting change in the basic school record, so also school authorities are not possessed of any authority to effect change in the basic school record without observing the procedure as laid down under the Secondary School Code. Any change, which is effected without following procedure, as laid down in Secondary School Code, would have to be considered as an interpolation and fabrication of the original record without due authorisation and shall not be taken note of. In the instant matter, it cannot be said that the inference drawn by the Committee for rejecting the documentary evidence in the form of basic school record pertaining to petitioner, to be erroneous. In the instant matter, it cannot be said that the inference drawn by the Committee for rejecting the documentary evidence in the form of basic school record pertaining to petitioner, to be erroneous. The change which has been effected in the original school record, without observing the procedure as laid down in the Secondary School code, cannot be taken note of and no evidenciary value can be attached to such entries, which are taken in violation of the procedure prescribed in that behalf." 15. It is thus clear that the change effected in the original school record without observing the procedure laid down in the Code cannot be taken note of. No evidentiary value can be attached to such entry which are taken in violation of the procedure prescribed in Clause 26.3 and Clause 26.4. 16. In this case, as noted above the certified extract of the school register is completely silent about the compliance of the mandatory requirements of Clause 26.3 and Clause 26.4 of the S. S. Code. The Caste Scrutiny Committee after considering the material placed on record was not convinced with the genuineness of the tribe claim of the petitioner. The Caste Scrutiny Committee held that the record does not indicate that the petitioner belonged to 'Halba' caste and as such to the Scheduled Tribe category. The petitioner could have procured voluminous documentary evidence with regard to her forefathers to substantiate her claim that her caste was 'Halba'. The Caste Certificates of the brother and father was not scrutinized by the Caste Scrutiny Committee and validated. In the absence of the validity report of the Caste Scrutiny Committee in respect of the Caste Certificates of brother and father of the petitioner much weightage was not given to the same by the Caste Scrutiny Committee. We fully agree with the opinion expressed by the Caste Scrutiny Committee. In view of these finding of facts arrived at on the basis of the evidence, we conclude that the proposition of the law laid down in the judgments relied upon by the learned Advocate for the petitioner is not applicable to the case of the petitioner. There is no substance in the petition. The petition, therefore, deserves to be dismissed. Hence, following order. 1] The writ petition stands dismissed. 2] Rule is discharged. There is no substance in the petition. The petition, therefore, deserves to be dismissed. Hence, following order. 1] The writ petition stands dismissed. 2] Rule is discharged. 3] However, for a period of six weeks from today the petitioner may not be displaced from service.