It is well known that the doctrine of res
judicata is codified in Section 11 of Code of Civil
Procedure. Section 11 generally comes into play in
relation to civil suits. But apart from the codified
law, in the light of principles of good conscience and
equity and as a public policy, the doctrine has been
applied in various other kinds of proceedings and
situations by Courts in India and other countries.
However, the first principle for its application is the
rule of conclusiveness of judgment or a finality
attached to it. An order made conditional on the fate
of the decision which would be pronounced by the Apex
Court cannot be called a conclusive or final
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT NAGPUR.
Writ Petition No.2512 of 2013
With
Civil Application [CAW] No. 2459 of 2013
Anand son of Nilkanth Katole,
Versus
The Scheduled Tribe Caste
Certificate Scrutiny
Committee, Amravati,
CORAM : A.B.CHAUDHARI AND
A.S. CHANDURKAR, JJ.
Date : 04th April, 2014.
Citation;2014(5)ALLMR181
Read original judgment here;click here
01. By the present Writ Petition, the
petitioner Anand Katole has put to challenge the
order dated 17th April, 2013 passed by the
respondent no.1 Scheduled Tribes Caste
Certificates Scrutiny Committee, Amravati, with a
further prayer to declare that the petitioner
Anand belongs to Halba/Halbi, a Scheduled Tribe.
02. Heard learned Senior Adv. Mr. S.V. Manohar
for the applicant-intervener in Civil Application
No. 2459 of 2013, and learned Adv. Mr. Vikas
Kulsunge for applicants-interveners in Civil
Application No. 658 of 2014. Considering the
reasons stated in both the Civil Applications, the
Civil Applications are allowed and disposed of.
F A C T S :
03. The present litigation has a chequered
history. The Petitioner is B.E., and was
appointed by order dated 16th March, 1998 as a
Field Officer in the category of Scheduled Tribe
on the establishment of the Maharashtra Pollution
Control Board, and was ultimately confirmed in
service. On 4th November, 2003, his employer
issued a notice of termination for failure to
produce the Caste Validity Certificate of he
belonging to Halba/Halbi, Scheduled Tribe. The
petitioner filed Writ Petition No. 4688 of 2003
and by order dated 2nd December, 2003, this Court
allowed the Writ Petition and directed the
respondent no.1 Committee to decide his tribe
claim within eight weeks, and, in the meanwhile,
the termination order was kept in abeyance. The
respondent no.1 - Committee thereafter on 20th
March, 2004, decided the tribe claim of the
petitioner and rejected it. The petitioner filed
Writ Petition No. 1687 of 2004 in this Court, and
by Judgment and Order dated 5th May, 2004, this
Court dismissed the Writ Petition and confirmed
the order passed by the respondent no.1
Committee. The petitioner went ahead and filed an
appeal in Supreme Court vide Civil Appeal No. 6340
of 2004. The Apex Court decided the said Appeal
by Judgment and Order dated 8th November, 2011, and
set aside both, the Judgment of this Court as well
as the order of Scrutiny Committee and remitted
the matter to the respondent no.1 Scrutiny
Committee for a fresh decision. The Committee,
after taking sufficient time, finally took the
decision by the order, which is impugned in the
present petition and rejected the tribe claim of
the petitioner. Hence this Writ Petition again.
ARGUMENTS :
04. Learned Senior Adv., Mr. M.G. Bhangde
appearing for the petitioner made the following
submissions:-
[a] The counsel for the respondent
Scrutiny Committee had raised the
Preliminary objection before this
Court in the present Writ Petition
seeking dismissal of this Writ
Petition on the Preliminary
objections, which were heard by this
Court, and this Court recorded an
order on 30th January, 2014, holding
in para 18 of the said order that
the Preliminary objection, as raised
by the Committee, was overruled
being without any substance and was,
thus, rejected. The respondent went
to the Apex Court against the said
order dated 30th January, 2014 and
the Apex Court dismissed the Special
Leave Petition and hence according
to Mr. Bhangde, the order rejecting
the Preliminary Objection stands
confirmed and cannot now be reopened
and this Court will have to
proceed with hearing of the petition
on merits.
[b] Turning to the merits of the case,
the learned Senior Adv., for the
petitioner submitted that after
remand of the matter from the Apex
Court to the Respondent No.1
Scrutiny Committee, a fresh
Vigilance Cell Report was called by
the Committee, which was served on
the petitioner along with a Showcause-
Notice dated 13th December,
2012. The petitioner filed his
reply to the said report vide reply
dated 12th February, 2013.
Thereafter, the petitioner was never
called for any hearing or for asking
any explanation and almost after two
months, the impugned order came to
be passed.
[c] The petitioner was granted
conditional Validity Certificate on
30th June, 1990, which was then
issued because of pendency of the
main matter before the Apex Court,
i.e., Milind's case and as a matter
of policy, pending decision of
Milind's case, such conditional
Validity Certificates were issued to
students,employees etc. Fact,
however, remains, according to Mr.
Bhangde, that the Caste Certificate
on which the conditional validity
was issued on 30th June, 1990, was
never verified as per the procedure
laid down after the commencement of
the Act, namely Maharashtra Scheduled
Castes, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes and Special
Backward Category (Regulation of
Issuance & Verification of) Caste
Certificates Act, 2000 (Act No. 23 of
2001) and coming into force of the
Rules. But a stand has been taken
by the Committee that on 15th March,
2004, pursuant to the directions of
the Govt., after decision of the
Supreme Court in the case of Milind
against Milind, the conditional
validity was cancelled, about which
the petitioner was never made aware.
He, therefore, submitted that the
petitioner has challenged the same
accordingly by amending the Writ
Petition.
[d] The Committee under the impugned
order framed as many as six Issues.
Issue Nos. 1 and 4 are the connected
Issues. Perusal of the reasons in
answer to Issue Nos. 1 and 4 clearly
show that the reasons bristle with
the reasons occurring in the Supreme
Court judgment, so also this Court
in so far as the issue about the
sub-caste is concerned. It was not
expected of the Committee to have
recorded conflicting reasons not
only in relation to Issue Nos. 1 to
6 framed by it, but also on the
other aspects, so also the
Affidavits-in-Reply filed in this
Court to the present Writ petition,
which are bordering the contempt.
The Committee relied on the
judgments of this Court in relation
to the Thakur caste which cannot
have any application, since the
nomenclature, namely Thakur , as
found in all those decisions of the
Bombay High Court pertain to the
upper class Thakur and the Scheduled
Tribe Thakur which is not the case
in so far as Halba/Halbi or Halba
Koshti/Halbi Koshti etc., is
concerned. On the contrary, the
Supreme Court rejected the theory of
sub-caste of Halbi as Halba Koshti
and held that there is no such caste
as Halba Koshti. With reference to
the status as Scheduled Tribe as
proclaimed by the relevant
Notification, the Committee has
referred to certain Certificates
showing the caste as Koshti vide
Clause 15 (d) [i] to [v] of the
impugned order and held that the
petitioner s ancestors and relatives
are having sub-caste Koshti and,
therefore, they are not the
primitive Halbas. But, as a matter
of fact, none of these persons are
related to the petitioner, nor there
is any evidence to that effect and
the said conclusion drawn by the
Committee is perverse and one-sided.
[e] As regards Issue Nos. 2 and 3
discussed by the Committee, learned
Senior Adv. Mr. Bhangde submitted
that the reasons given by the
Committee are contrary to the remand
order made by the Supreme Court.
That apart, the comparative analysis
shown by the Committee is also
factually wrong, since the grandfather
of the petitioner was
admittedly never examined.
Secondly, reliance has been placed
on the alleged statement of the
father, which was never recorded in
the fresh Vigilance enquiry after
the remand order was made by the
Supreme Court. The statement of
father recorded earlier appears to
have been relied upon by the
Committee, but then the said
statement also does not reflect what
is stated in the impugned part of
the order in answer to Issue Nos. 2
and 3.
[f] The learned Senior Counsel then went
on to argue that the petitioner does
not dispute the position that the
affinity test is relevant. But
according to him, as indicated in
the Judgment of the Supreme Court
itself, the affinity test cannot be
all and end all of the matter and at
any rate cannot be conclusive to
adjudicate the caste claim. He then
argued that there are no reasons why
the Committee has rejected the claim
on the affinity test, and by merely
saying that there is no match as to
the affinity test for the caste
claim of the petitioner, there was
nothing to reject the caste claim on
that ground.
[g] The learned Senior Adv., for the
petitioner then argued with
reference to Issue No.5 that the
petitioner cannot and does not
dispute the position of law that the
Validity Certificates issued to the
relatives of the petitioner ipso
facto cannot be the only reason for
declaring the claim of the
petitioner as valid. But then
according to him, the Vigilance
Report or the order of the Committee
ought to show the distinction for
not validating the caste claim of
the petitioner on that ground which
has not been shown in the instant
case. On the contrary, the blood
relatives of the petitioner by name
Vikram and Rupali, who are the
children of real brother Rajeshwar
of the father of the petitioner have
been given the Caste Validity
Certificates as Halba and no reason
is forthcoming as to why the
petitioner should not be given the
same benefit. Mr. Bhangde cited
some decision of this Court on this
proposition.
[h] According to learned Counsel in
patriarchal society, the caste is
determined by the caste of the
father as held by this Court in the
case of Hira Shalikram Mundharikar
Vs. Scheduled Tribe Caste
Certificate Scrutiny Committee [2010
(6) Mh. L.J. 274]. Elaborating the
said aspect, Mr. Bhangde then argued
inviting our attention to the
Maharashtra Scheduled Tribes
(Regulation of Issuance & Verification
of) Certificates Rules, 2003 framed
under Act No. 23 of 2001, that Rules 2
(f), 3(3) (a) (i) (ii) and (iii) and
(d), Rule 11 (c) (vi), (d) (iii) and
Form-F-20 (d) (2) (3), in terms, show
that what is relevant is the caste of
the paternal side or the paternal
relatives. The foundation of the
impugned order, however, shows that the
Committee dug out the certificates or
the documents in relation to alleged
relatives on maternal side and some
alleged relatives with surname Katole
with whom the petitioner has no
concern, and the averments to that
effect on page 15 of the petition have
not been traversed, in which their
caste was said to have been mentioned
as Halba Koshti. This was wholly
irrelevant and further the petitioner
was never offered an opportunity to
explain anything, nor was supplied the
document on that aspect. The reasons
given by the Committee are, therefore,
perverse.
[i] The counsel for the petitioner in
relation to Issue No.6 then submitted
that the attempt of the respondents to
buttress the principles of res
judicata or estoppel is wholly wrong
and unjustified. According to him, the
said principles have no application,
because there was no final adjudication
in respect of the Caste Certificate
dated 27th January, 1989 issued by the
Executive Magistrate, Khamgaon, and
cancellation of the Conditional
Validity Certificate by another order
dated 15th March, 2004, which has also
been challenged by amendment to the
petition, and it was never communicated
to the petitioner and, therefore, the
said order cannot be utilized against
the petitioner. At any rate, the said
order of Committee dated 15th March,
2004 is also under challenge in the
present petition and does not show any
reasons for invalidating the caste
claim of the petitioner. The question
of obtaining the second certificate
does not arise, since the Act of 2000
came into force and thereafter the
certificate from the place of origin
was obtained. The allegations about
the suppression of facts in relation to
obtaining of first certificate or the
cancellation by order dated 15th March,
2004 by the Committee are all
misconceived and, therefore, according
to him, the validity of the Caste
Certificate obtained from the Sub-
Divisional Officer, Pusad on 2nd
January, 2002, has wrongly been denied
by the Committee.
Finally, to substantiate his contentions,
learned Senior Adv. Mr. Bhangde cited the
following decisions:-
[a] Bhanu Kumar Jain vs. Archana Kumar &
another [(2005) 1 SCC 787],
[b] Apoorva Vinay Nichale Vs. Divisional
Caste Certificate Scrutiny Committee
No.1 & others [2010 (6) Mh.L.J. 401],
[c] Heera Shalikram Mundharikar Vs.
Scheduled Tribe Caste Certificate
Scrutiny Committee & others [2010 (6)
Mh.L.J 274],
[d] Smt. Sangita Sahebrao Bhalerao Vs.
State of Mah. & others [Writ Petition
No. 6744 of 2011 decided on 1 2 t h
December, 2013 [Coram V.M. Kanade &
M.S. Sonak, JJ.,
[e] Sajjadanashin Sayyed Md. B.E. EDR. (D)
by Lrs. Vs. Musa Dadabhai Ummer &
others [(2000) 3 SCC 350],
[f] Syed Yakoob Vs. K.S. Radhakrishnan &
others [AIR 1964 SC 477 (1)], and
[g] Union of India & othersVs. Dinanath
Shantaram Karekar & others [(1998) 7
SCC 569],
SUBMISSIONS MADE BY THE RESPONDENTS :
05. Learned Adv. Mr. V.A. Gangal for the
Committee of the respondents meticulously made his
submissions in all details. He made the following
submissions:-
[1] The case at hand is required to be
considered with utmost caution and
care, since the petitioner has played
a fraud and it amounts to fraud on
the Constitution. The petitioner had
earlier obtained a Caste Certificate
on 27th January, 1989 from Executive
Magistrate, Khamgaon, showing his
caste as Halba , and since the
litigation was pending in the Supreme
Court, the State Govt. had issued a
Govt. Resolution due to the pressing
demand for issuing conditional
Validity Certificates, and
accordingly the petitioner was also
issued such Conditional Validity
Certificate on 30th June, 1990.
After the decision of Supreme Court
in the case of Milind Katware, the
Committee passed an order on 15th
March, 2004 cancelling the said
conditional Validity Certificate, and
it was sent to the petitioner on his
last known address. But then he did
not challenge that order of
cancellation or rejection of his
caste claim at that time and as late
as in 2013, he filed amendment
application to challenge the said
order of cancellation dated 15th
March, 2004, which is wholly
impermissible. That apart, the
petitioner never disclosed about
passing of the said order dated 15th
March, 2004 to this Court in the
present Writ Petition and obtained
interim orders from this Court by
::: Downloaded on - 18/09/2014 11:05:56 :::
Bombay High Court
Writ Petition No. 2512 of 2013
21
suppressing the material facts and,
therefore, the petition deserves to
be dismissed on that count alone.
Mr. Gangal then argued that the Act
and the Rules do not contemplate more
than one Caste Certificate and,
therefore, the petitioner is guilty
of commission of fraud by taking a
chance of obtaining first Caste
Certificate dated 27th July, 1989 and
having realized that the same was
invalidated, by suppression, obtained
another Caste Certificate from the
Sub-Divisional Officer, Pusad, on 2nd
January, 2002. Such a course was not
open to the petitioner and,
therefore, the petition deserves to
be dismissed on the ground of fraud.
According to Mr. Gangal, the learned
counsel, the Preliminary Objections
to the petition also ought to be
decided by this Court afresh in the
light of the specific and clear
observations made by the Supreme
Court while not entertaining the
Special Leave Petition against this
Court s order dated 30th January,
2014 rejecting those preliminary
objections.
[2] Mr. Gangal then argued relying on
several decisions of this Court that
the extraordinary writ jurisdiction
of this Court does not extend to
hearing of the Writ Petition like an
appeal and, therefore, the parameters
of the jurisdiction of this Court
being limited, this Court may not be
able to make or embark into a
detailed enquiry against the findings
of facts recorded by the Committee
which consists of the experts and,
therefore, this Court should not
interfere with the findings of facts
recorded by the Committee. The
earlier certificate obtained by the
petitioner was also issued by the
then competent authority and,
therefore, petitioner was not
justified in obtaining second
certificate, since, as per Section 2
(b), the earlier certificate was
valid and there is no contemplation
of obtaining two certificates.
[3] That, the submission made by learned
counsel for the petitioner about
issuance of Validity Certificate
automatically to the petitioner
because of the issuance of such
Validity Certificates to his near
relatives is equally misconceived
according to Mr. Gangal. The said
legal position is no more res in
tegra in the light of the decisions
in the case of Ku. Madhuri Patil,
Parmar, Raju Ramsingh Wasave etc.,
and various judgments of this Court
also. He also argued that despite
removal of area restriction, the
place of the origin of the person is
most relevant for finding out the
claim for tribe and cannot be
ignored. This has been consistently
held by this this Court in several
decisions, including a decision
rendered by one of us [A.B.
Chaudhari, J. at Aurangabad Bench] in
Writ Petition No. 4386 of 20112 in
the case of Somreshwar Waman Thakur,
decided on 23rd October, 2012 and
Writ Petition No. 7813 of 2009 [Dattu
Namdeo Thakur].
[4] As regard the affinity test, Mr.
Gangal, the learned counsel for the
respondents, invited our attention to
the charts prepared and considered by
the Committee clearly showing how
there is no proof of affinity or the
Caste Certificate showing Halba
Koshti etc. The Counsel took us
through the voluminous record and
argued that the burden of proof about
affinity test is certainly on the
petitioner and cannot be shifted on
the Committee as per Section 8 of the
Act and the petitioner failed to
discharge the burden.
[5] Mr. Gangal then argued that merely
because there are some preindependence
and post-independence
documents showing the caste as
Halba/Halbi, the same is not the end
of the matter as held by the Supreme
Court and Division Benches of this
Court at various benches. That being
the position, the submission that
pre-independence documents submitted
by the petitioner were enough to
validate his caste is misconceived.
[6] Mr. Gangal then argued that the
petitioner and his father had made a
statement that the marriage in their
family were solemnized only in their
caste. Based on that statement,
enquiry was made by the Vigilance
Cell which found that many relatives
in the family of the petitioner had
married and even the wife of the
petitioner who was married to him
belonged to Koshti caste because
grand-parents and the mother s
parents and other ancestors records
clearly showed that they belonged to
Koshti and, therefore, there was
nothing wrong in relying upon those
certificate indicating caste as
Koshti.
[7] As to the submissions about the
validation of claim of the blood
relatives of the petitioner, Mr.
Gangal submitted that in case of
Rajeshwar Maroti Katole , who is the
real brother of petitioner s father,
his caste was never determined on
merits, nor was adjudicated, but was
accepted as a special case. All
subsequent validity certificates of
other relatives spoken of by the
petitioner were based on the
affidavit made by Rajeshwar Maroti
Katole, so also in cases of Vikram
Katole, Harish Katole and Sanket
Katole and the Special Leave
Petitions are pending in respect of
both cases.
[8] Refuting the contention about nonsupply
of Vigilance Report and the
documents therewith, learned Adv. Mr.
Gangal argued that in fact all the
documents were duly supplied to the
petitioner and if at all he was not
in receipt of those documents, he
could have applied to the Committee
for obtaining the same and the
petitioner is lately making such a
false claim of not having an
opportunity, which cannot be
accepted.
To support his arguments, learned Adv. Mr.
Gangal relied on the judgment of this Court in Raju
Pundlikrao Burde Vs. Establishment Officer (III-B),
MSEB & another [2004 (3) Bom.C.R. 460]. Finally, he
prayed for dismissal of the Writ Petition with
heavy costs.
06. Mr. S.S. Sanyal, Mr. Vikas Kulsange and Mr.
Sunil Manohar, Senior Advocate with Mr. R.N. Badhe,
Adv., for interveners, opposed the petition and
claimed dismissal thereof while supporting the
stand taken by the respondents.
CONSIDERATION :
07. It would be necessary for us to first take
up the issue raised by learned Adv. Mr. V.A.
Gangal for the respondent no.1, who, relying on
the Supreme Court order dated 3rd March, 2014 in
Special Leave Petition Nos.3894-3895/2014 that was
filed against the Order dated 30th January, 2014 in
the present petition for challenging the said
order rejecting the Preliminary Objection raised
by Mr. Gangal before hearing of the petition on
merits, submitted that despite the said order
dated 30th January, 2014 made by the Division Bench
of this Court, to which one of us [A.S.
Chandurkar, J.] was a party, the respondent no.1
is entitled to re-argue the issue about
Preliminary Objection to the Writ Petition. It
would be also necessary for us, at this stage, to
decide in case of an eventuality of necessity to
make further remand to the Caste Scrutiny
Committee or to refrain from doing so. We have
already noted the submissions made by learned Sr.
Adv., Mr. M.G. Bhangde for the petitioner on this
aspect, that the order on the Preliminary
Objection made by this Court on 30th January, 2014
has put to rest the argument about the Preliminary
Objection sought to be again raised because the
Supreme Court has dismissed the Special Leave
Petition confirming the said order dated 30th
January, 2014 and the further observations in the
order of the Supreme Court would not enable this
Court or the counsel for the respondents to rake
up the Preliminary Issue over and again. We have
repeatedly perused the order on Preliminary Issue
made by this Court on 30th January, 2014. The order
demonstrates consideration of detailed submissions
made by counsel for the rival parties on the
Preliminary Objections and also indicate detailed
well thought reasons for not agreeing with the
Preliminary Objections raised by Mr. Gangal,
learned counsel for the respondent no.1, and
further as a sequel, rejecting the Preliminary
Objections. The order dated 3rd March, 2014 of the
Supreme Court reads thus:-
Permission to file SLP is
granted.
We are not inclined to interfere
at the interlocutory stage. The Special
Leave Petition is, accordingly,
dismissed.
We are sure that the High Court
will consider all the submissions made
before it by the concerned parties.
Having due and respectful regard to the
observations made by the Supreme Court while
dismissing the Special Leave Petition against the
said order dated 30th January, 2014, we are of the
view that we are not required to, nor we would be
justified in ignoring the said order dated 30th
January, 2014 on Preliminary Objection, since, in
our opinion, it would not be adhering to the
judicial discipline. Judicial discipline and
comity is the hallmark of this Institution. For
enhancing the majesty of the Court and for orderly
administration of justice, practicing discipline
would be essential which we do here and,
therefore, hold that the Preliminary Issue decided
under Order dated 30th January, 2014 cannot be
raked up again and again by the respondent no.1 in
the light of dismissal of Special Leave Petition
against the said order made by this Court, to
which one of us [A.S. Chandurkar, J.] is a party.
08. Having disposed of the aforesaid contention
raised by Mr. Gangal as above, we then find, and
as it appeared from the arguments raised by
counsel for both sides, that again the remand
order to the Committee should be made or not is
another concern for this Court, all the more so
because of the contentions raised by the
petitioner about the Committee not affording an
opportunity of being heard to the petitioner or
the Committee not giving an opportunity to the
petitioner to explain certain things or the stand
taken by the Committee that it was for the
petitioner to ask for certain documents or
inspection thereof and make submissions
thereafter. In the instant case, the litigation
commenced in the year 1990, and due to the
pendency of the case of Milind Katware for number
of years before the Apex Court, the lis remained
pending. Even after the decision of Milind
Katware s case by the Apex Court in the year 2000,
by now fourteen years have passed and the
litigation continues We do not want to say that
even second remand order cannot be made if the
circumstances so warrant. But then, if this Court
is satisfied that the evidence brought on record
and all the material and relevant aspects are
clinching, this Court would like to bear in mind
the principle namely interest republicae ut sit
finislitum it concerns the State that there
should be an end to lawsuits.
09. Though we have held that the Preliminary
Objections again raised before us by Mr. Gangal,
learned counsel for the respondent no.1, cannot be
re-opened, we feel in the light of different
colours given to the arguments made before us that
it would be appropriate to make some further
comments.
The admitted facts are that the petitioner
and his ancestors originally belong to Dhanki, Tq.
Umarkhed, District Yavatmal. While the
petitioner s father was at Khamgaon for service,
the petitioner had obtained a Caste Certificate
dated 27th January, 1989 from the Executive
Magistrate, Khamgaon, and it was submitted for
obtaining a Validity Certificate as per the then
existing Govt. Resolutions. Litigation about
Halba, Halba Koshti, Halbi commenced in the Nagpur
Bench of the Bombay High Court on 4th September,
1985 when the Division Bench of this Court
delivered the Judgment in the case of Milind
Katware, that Halba Koshti is the sub-caste of
Halba/Halbi and is a Scheduled Tribe. The State
of Maharashtra filed Special Leave Petition No.
16372 of 1985, in which on 14th July, 1986, Supreme
Court granted leave and made an interim order that
Halba Koshtis will be entitled to admission to
the seats reserved for Scheduled Tribes. On 8th
January, 1988, thereafter when Milind Katware s
case came up for hearing, it was referred to the
Constitution Bench. Since the certificates were
being forwarded in large number to the Tribal
Research & Training Institute, Pune, for
verification, and since the Supreme Court had made
another order as above, the State of Maharashtra
issued a Govt. Resolution asking the Department to
issue Provisional Validity Certificates of Halba -
Scheduled Tribe, subject to the Constitution Bench
decision of the Apex Court. Accordingly, the
petitioner was also given a Conditional Validity
Certificate dated 30th June, 1990.
On 28th November, 2000, the Constitution
Bench decided Milind Katware s case, and held that
it is not open to hold that any caste/tribe not
mentioned in the Presidential Order is subtribe/
caste of the tribe Halba Koshti cannot be
treated as a sub-tribe of Halba/Halbi within the
meaning of Entry No.19 of the Order of 1950. On
18th October, 2001, State of Maharashtra issued a
Govt. Resolution to act upon the Constitution
Bench Judgment of the Supreme Court and to cancel
the Conditional Validity Certificates. Pausing
here, it would be necessary to refer to the
judicial and legislative history. In the year
1994, the Supreme Court decided the case of
Madhuri Patil, and after making a detailed survey,
rendered a studious judgment holding that there
was no proper, legal and correct methodology for
finding out the genuine scheduled tribes and,
therefore, the Supreme Court laid down several
parameters in Madhuri Patil [1] and Madhuri Patil
[2] for finding out the genuine scheduled tribes
for issuing Caste Validity Certificates of
Scheduled Tribes. It also held that the
adjudication, as required by the said Judgment of
the Supreme Court in Madhuri Patil s case, would
be the prerequisite for holding whether a person
is scheduled tribe or not. The State of
Maharashtra thereafter started following the
parameters laid down by the Apex Court in the case
of Madhuri Patil and asked the Committees to
decide the matters accordingly. This went on and
went on in the absence of any crystallized
legislation, and finally the State Legislature
passed Maharashtra Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes and Special Backward Category
(Regulation of Issuance & Verification of) Caste
Certificates Act, 2000 (Act No. 23 of 2001) and also
framed the Maharashtra Scheduled Tribes (Regulation of
Issuance & Verification of) Certificates Rules, 2003.
The Act came into force with effect from 18th October,
2001, while the Rules came into force with effect from
4th June, 2003. Now, testing the submission made by
Mr. Gangal, learned Counsel for the respondent no.1 in
the above factual background, it is clear that the
Conditional Validity dated 30th June, 1990 issued to
the petitioner by the Tribal Research and Training
Institute, Pune, was a mere Conditional Validity
dependent on the fate of the lis pending in the Supreme
Court. Can the principles of Res Judicata or rule of
estoppel have any application when the Validity
Certificate dated 30th June, 1990 was not treated as
final by the respondents themselves, but was treated
as conditional dependent on the result of the lis?
Our firm answer is No.
It is well known that the doctrine of res
judicata is codified in Section 11 of Code of Civil
Procedure. Section 11 generally comes into play in
relation to civil suits. But apart from the codified
law, in the light of principles of good conscience and
equity and as a public policy, the doctrine has been
applied in various other kinds of proceedings and
situations by Courts in India and other countries.
However, the first principle for its application is the
rule of conclusiveness of judgment or a finality
attached to it. An order made conditional on the fate
of the decision which would be pronounced by the Apex
Court cannot be called a conclusive or final. That
apart, it has not at all been proved that the
petitioner was, in fact, or by any presumption, served
with the cancellation order dated 15th March, 2004 till
he came across it recently and then has challenged it
by amendment. Admittedly, order dated 15th March, 2004
was passed without any notice to the petitioner and
must be held to be illegal.
Next, the rule of estoppel is based on the
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maxim allegans contractor non est audiendus i.e., a
party is not to be heard to allege the contrary. A
person cannot approbate and reprobate. In the case at
hand, the Tribal Institute/Committee itself
represented that the validity given to him was not
final and conclusive, but was dependent on something.
Hence he cannot be held guilty of the said vice.
The terra firma of the submissions made by the
respondent no.1, thus, does not exist in law and,
therefore, the the construction of the argument
thereon and then raising of Preliminary Objections
repeatedly, that too by the State of Maharashtra and
its instrumentalities is certainly in contravention of
the said principle, namely interest republicae ut sit
finislitum - it concerns the State that there should
be an end to lawsuits.
There is one more reason for rejecting the
submissions made by the Committee before us. The reason
is that the original place or native place of the
petitioner and his ancestors is not Khamgaon where from
the Certificate dated 27th January, 1989 was obtained,
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against which Conditional Validity Certificate dated
30th June, 1990 was issued by the Tribal Research &
Training Institute, Pune. On the contrary, it is an
admitted fact that the original place of residence of
the petitioner and his ancestors is Dhanki, Tq.
Umarkhed, Distt. Yavatmal. Therefore, a Certificate
issued by Executive Magistrate, Khamgaon, or the
Conditional Validity Certificate based on the said
Certificate, both do not have any significance or a
place in law. This is fortified by the provisions of
the Act and the Rules which clearly show that a person,
who claims a Caste Certificate for claiming the status
as a Scheduled Tribe must produce the Certificate from
the place of origin of himself and his ancestors and a
Certificate issued from some other place than the place
to which he originally belongs [unless specified
otherwise] is not a Certificate which can be examined
for issuance of Validity Certificate under the Act and
the Rules. Section 4 of the Maharashtra Scheduled
Castes, Scheduled Tribes, De-notified Tribes (Vimukta
Jatis), Nomadic Tribes, Other Backward Classes and
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Special Backward Category (Regulation of Issuance &
Verification of) Caste Certificates Act, 2000, reads as
follows:-
4. (1) The Competent Authority may,
on an application made to it under section
3, after satisfying itself about the
genuineness of the claim and following the
procedure as prescribed, issue a Caste
Certificate within such time limit and in
such form as may be prescribed or reject
the application for reasons to be recorded
in writing.
(2) A Caste Certificate issued by
any person, officer or authority other
than the Competent Authority shall be
invalid. The Caste Certificate issued by
the Competent Authority shall be valid
only subject to the verification and grant
of validity certificate by the Scrutiny
Committee.
Section 2 (b) of the said Act reads thus:-
2. In this Act, unless the context
otherwise requires,-
(a) ....
(b) Competent Authority means a officer
or authority authorised by the Government,
by notification in the Official Gazette,
to issue a Caste Certificate, for such
area or for such purposes as may be
specified in the said notification and
shall include all the Competent
Authorities already designated by the
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Government before the coming into force of
this Act, having jurisdiction over the
area or place to which the applicant
originally belongs, unless specified
otherwise;
The relevant Rules, namely Rules 3 (2) (c), 4
(1) (2), 12 (3) (4) and (5) of the Maharashtra
Scheduled Tribes (Regulation of Issuance & Verification
of) Certificates Rules, 2003, read thus:-
3. Procedure for obtaining Scheduled
tribe certificate from the Competent
Authority.
(2) The applicant shall file with
the application an affidavit in
Form A-1 duly sworn before the
authorised Officer or a Court,
mentioning,-
(a) ....
(b) ....
(c) the place from which he
originally hails:
4. Procedure to be followed by
Competent Authority for grant of
Certificate or rejection of
application for Scheduled Tribe
Certificate.
(1) The Competent Authority shall
have jurisdiction to issue
Scheduled Tribes Certificate in
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respect of an applicant who
himself or whose father/grand
father was ordinarily residing
within the territorial
jurisdiction of that Competent
Authority on the date of
notification of the
Presidential Order scheduling
that particular Tribe.
(2) In case the applicant or his
father/grand father was not
ordinary resident of any place
within the jurisdiction of that
Competent Authority, temporary
residence of applicant for the
purposes of service,
employment, education or
confinement in jail etc.,
within the territorial
jurisdiction of the Competent
Authority shall not confer
jurisdiction on that Competent
Authority to issue Scheduled
Tribe Certificate.
12. Procedure to be followed by Scrutiny
Committee.
(1) ...
(2) ...
(3) 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.
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(4) The Vigilance Officer shall
personally verify and collect
all the facts about the social
status claimed by the applicant
or his parents or the guardian,
as the case may be.
(5) The Vigilance Cell shall also
examine the parents or guardian
or the applicant for the
purpose of verification of
their Tribe, of the applicant.
The reason for insistence for a Caste Certificate of
the place of origin of the candidate or his father,
grand-father is that the claim for the status of
Backward Class can best be verified with reference to
documents and other evidences from such a place to
which he originally belongs. To repeat, the Certificate
dated 27th January, 1989 issued by the Executive
Magistrate, Khamgaon, and the conditional validity
dated 30th June, 1990 both become wholly irrelevant and
on the contrary, the Certificate obtained by the
petitioner for whatever reason on 2nd January, 2002
from the Sub-Divisional Officer,Pusad, within whose
jurisdiction the place to which the petitioner
originally belongs, namely village Dhanki, Tq.
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Umarkhed, Distt. Yavatmal falls, is the only relevant
certificate for examination of validity thereof. For
all these reasons, therefore, the various submissions
made by Mr. Gangal about the alleged conduct of the
petitioner in obtaining two certificates and deceiving
the Govt., or playing fraud on the Govt., or on the
Constitution or for suppression of facts must be
rejected which we do.
10. Having, thus, dealt with the aforesaid
preliminary matters, we now propose to examine the
validity of the impugned order made by the Caste
Scrutiny Committee. Before entering into the arena on
merits, we must carefully refer to the Judgment of the
Supreme Court in the present case which asked the
Committee, after making remand, to decide the case of
the petitioner again with reference to the specific
observations made by the Apex Court in its Judgment.
Upon reading of the Judgment dated 8th November, 2011
of the Apex Court by which the Committee was asked to
examine the matter, we had asked Mr. V.A. Gangal,
learned counsel for the respondent no.1 as to whether
the Committee could or even this Court can travel
beyond the findings recorded by the Apex Court on the
facts and material available on record of the case in
the absence of any specific liberty given by the Apex
Court to the Committee to go ahead on recording the
findings without being influenced by, or ignoring, any
findings on facts and material on record, Mr. Gangal,
learned counsel for the respondent no.1, fairly stated
that no such liberty was sought by the respondent no.1
before the Apex Court, nor the same was granted. It is
in this background now we advert to the decision of the
Supreme Court. The Supreme Court referred to the fact
in para 7 of its judgment that the petitioner was
claiming his status as Halbi Scheduled Tribe. In
para 8 then Supreme Court quoted the observations of
the High Court against which it was hearing the appeal,
and in para 9, it was stated that the High Court had
held that unless ethnic linkage with Scheduled Tribe
was established, the caste claim could not be accepted
merely on the strength of documentary evidence. The
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Supreme Court then examined the validity of the
proposition made by the High Court as aforesaid and in
para 17, referred to the observations in the cases of
Madhuri Patil vs. Commr. Tribal Development [ (1994) 6
SCC 241] and Director of Tribal Welfare, Govt. of A.P.
vs. Laveti Giri [(1995) 4 SCC 32], and in para 18, it
referred to the Maharashtra Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward
Category (Regulation of Issuance & Verification of)
Caste Certificates Act, 2000. In para 19 thereafter,
the Apex Court referred to Rules 11 (2), 12, and 12
(3), and thereafter in para 22, the Apex Court held
that it is manifest from the afore extracted paragraphs
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. Thereafter, the Supreme Court laid broad
parameters to be kept in view while dealing with the
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caste claim in the said paragraph 22. Now, in so far
as the case of the petitioner is concerned, the Apex
Court examined the documents which were on record and
recorded the following findings:-
24. Having examined the present case
on the touchstone of the aforesaid broad
parameters, we are of the opinion that the
claim of the appellant has not been
examined properly. We feel that the
documentary evidence produced by the
appellant in support of his claim had been
lightly brushed aside by the Vigilance
Officer as also by the Caste Scrutiny
Committee. Insofar as the High Court is
concerned, it has rejected the claim
solely on the basis of the affinity test.
It is pertinent to note that some of these
documents date back to the pre-
Independence era, issued to the
appellant s grandfather and thus, hold
great probative value as there can be no
reason for suppression of facts to claim a
non-existent benefit to the Halbi
Scheduled Tribe at that point of time.
25. From the documents produced by the
appellant, it appears that his near
paternal relatives had been regarded as
belonging to the Halbi Scheduled Tribe.
The Vigilance Officer s report does not
indicate that the documents produced by
the appellant in support of his claim are
false. It merely refers to the comments
made by the headmaster with reference to
the school records of the appellant s
father s maternal brother and his aunt,
which had been alleged to be tampered
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with, to change the entry from Koshti
Halba to Halba and nothing more. Neither
the headmaster was examined, nor any
further enquiry was conducted to verify
the veracity of the headmaster s
statement. It is of some importance to
note at this juncture that in similar
cases, involving the appellant s first
cousin and his paternal uncle, the High
Court, while observing non-application of
mind by the Caste Scrutiny Committee, had
decided a similar claim in their favour.
26. We are convinced that the
documentary evidence produced by the
appellant was not examined and appreciated
in its proper perspective and the High
Court laid undue stress on the affinity
test. Thus, the decision of the Caste
Scrutiny Committee to cancel and
confiscate the caste certificate as well
as the decision of the High Court,
affirming the said decision is untenable.
We are, therefore, of the opinion that the
claim of the appellant deserves to be reexamined
by the Caste Scrutiny Committee.
For the view we have taken on facts in
hand, we deem it unnecessary to refer to
the decisions cited at the Bar.
27. Resultantly, the appeal is
allowed; the decisions of the Caste
Scrutiny Committee and the High Court are
set aside and the case is remitted back to
the Caste Scrutiny Committee for fresh
consideration in accordance with the
relevant Rules and the aforesaid broad
guidelines. ...
11. After the remand order was made by the Apex
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Court as aforesaid, a fresh Vigilance Cell report was
called. But then the fresh Vigilance Report also did
not indicate that documents showing entry Halbi right
from 1899 produced by the petitioner in support of his
claim were false. The Vigilance Cell or the Committee
did not examine the Headmaster, nor did conduct any
further enquiry as observed in paragraph 25. Finally,
in paras 26 and 27, the Apex Court asked the Committee
to re-examine the petitioner s case for fresh
consideration. We have a serious doubt as to whether
the Committee could have endeavoured to overreach any
of the findings recorded by the Apex Court above in the
absence of liberty in the very same judgment to do so.
Assuming that there was any such liberty due to the
Apex Court saying that the matter should be reexamined,
we have carefully considered the reasons
given by the Scrutiny Committee under the impugned
order for consideration of the documentary evidence of
pre-independence period and we must express in clear
terms that the Scrutiny Committee has unnecessarily
rejected the voluminous documentary evidence which is
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of pre-independence era and which has not been found to
be be tampered or otherwise polluted even remotely.
The documentary evidence, that was seen by the Apex
Court, as mentioned in paragraph 25 of the Judgment and
the documentary evidence we have before us and seen by
us with the assistance of the learned counsel for the
parties is from the paternal side of the petitioner
right from the years 1899 and 1916, i.e., birth
extracts of sons born on 28th November, 1916, 5th
February, 1920 and in the year 1924 to Gangaram Katole,
Tq. Mahagaon, Distt. Yavatmal. These documents clearly
show the entry as Halbi and the Vigilance Cell has
not found the same to be tampered or doubtful. Not
only that there are other documents which were also
seen by the Apex Court and which we have carefully seen
immediately after 1950. The reason given by the
Committee for rejecting these old documents showing the
caste Halbi must be rejected outright. These are
eight documents pertaining to the pre-Independence
period, namely 4th November, 1924, 8th April, 1929, 20th
February, 1932, 21st June, 1933, 15th June, 1948, 7th
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October, 1948, 2nd July, 1949, 2nd July, 1949 and one
birth extract of sons born on 28th November, 1916 and
5th February, 1920 and above all, entry of August, 1899
in relation of Gangaram Halbi, with all entries showing
caste as Halbi. Can these documents not alleged to be
incorrect by the Vigilance Cell or even the Committee
be ignored? We say No. The reason given is they are
the residents of village Dhanki, while the area where
Halbis/Halbas were present does not mention village
Dhanki. It is stated in the impugned order that the
area of residence of Halba/Halbi Scheduled Tribe was
confined to Lohara, Yavatmal, Godani, Talegaon Bari,
Dhamani, Patsangra, Hatbapipri etc. Village Dhanki
also falls in Umarkhed Taluka of Yavatmal district.
The reason [Para 12 (b) and (c)] given in the order
that members of sub-caste Halba Koshti of Halbi caste
were residing earlier at Dhanki, Phulsawangi and,
therefore, the petitioner must be belonging to Halba
Koshti is baseless, wholly irrational and without any
material on record. At Sr. No. 523 on pages 557 (126)
and 556 (127), at Sr. No. 523, name of Gangadhar Satwa
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with caste Halbi and father s occupation is mentioned
as Weaver in the year 1899 and the entry on page 557
(126) is that he had undertaken the job as labour due
to drought. Similar is the case with Dhondu Laxman at
Sr. No. 530 with caste Halbi, but occupation Wesver.
But at Sr. No. 532, Narayan Fakira is Halbi , but
occupation is Patilki , i.e., Village Head having
lands. Looking to these entries for the year 1899 and
nearby years, we are afraid the finding that Weaving
is a taboo [prohibited by social system] among Halbas
Scheduled Tribe cannot be for sure correct. This is
supported by R.V. Russell in the Tribes and Castes of
the Central Provinces of India, Vol.III, Page-II, page
187, in the following extracted portion:-
.........The name Halba might be derived
from hal, a plough, and be a variant for
harwaha, the common term for a farmservant
in the norther Districts. This derivation
they give themselves in one of their
stories, saying that their first ancestor
was created from a sod of earth on the
plough of Balaram or Haldahra, the brother
of Krishna; and it has also the support of
Sir G. Grierson. The caste includes no
doubt a number of Gonds, Rawats (herdsmen)
and others, and it may be partly
occupational, consisting of persons
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employed as farm servants by the Hindu
settlers. The farmservant in Chhattisgarh
has a very definite position, his
engagement being permanent and his wages
consisting always in a fourth share of the
produce, which is divided among them when
several are employed. The caste have a
peculiar dialect of their own, which Dr.
Grierson describes as follows:
Linguistic evidence also points to the
fact that the Halbas are an aboriginal
tribe, who have adopted Hinduism and an
Aryan language. Their dialect is a curious
mixture of Uriya, Chhatisgarhi and
Marathi, the proportions varying according
to the locality. In Bhandara it is nearly
all Marathi, but in Bastar it is much more
mixed and has some forms which look like
Telugu. If the home of the Halbas was in
the debateable land between Chhatisgarh
and the Uriya country to the east and
south of the Mahanadi, their dialect
might, as Mr. Hira Lal points out, have
originated here. They themselves give the
ruined but once important city of Sihawa
on the banks of the Mahanadi in this tract
as that of their first settlement; and
Uriya is spoken to the east of Sihawa and
Marathi to the west, while Chhattisgarhi
is the language of the locality itself and
of the country extending north and south.
Subsequently the Halbas served as soldiers
in the armies of the Ratnapur kings and
their position no doubt considerably
improved, so that in Bastar they became an
important landholding caste. Some of
these soldiers may have migrated west and
taken service under the Gond Kings of
Chanda, and their descendants may now be
represented by the Bhandara zamindars,
who, however, if this theory be correct,
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have entirely forgotten their origin.
Others took up weaving and have become
amalgamated with the Koshti caste in
Bhandara and Berar.
There are additional documents dated 4th
November, 1924, 8th April, 1929, 20th February, 1932,
21st June, 1933, 15th June, 1948, sale-deed dated 7th
October, 1948, sale-deed dated 2nd July, 1949 and
another sale-deed dated 2nd July, 1949 all showing the
caste as Halbi.
12. After removal of the area restriction and
keeping in mind the fact about migration of the people
in large number, in our opinion, such a reason for
rejecting the caste claim as Scheduled Tribe in the
wake of very strong documentary evidence in the form of
pre-constitution documents dating back to the years
1899, 1916 showing the caste as Halbi would be
preposterous. By making references to report of J.V.
Ferreira Expert Committee Report and so on and so
forth, the Committee has made general observations and,
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therefore, we find that the reasons for rejecting the
important documentary evidence, which was also
considered by the Apex Court is perverse. Thus, the
documentary evidence pertaining to the pre-independence
period is so overwhelming that the Committee could not
have rejected the same in the manner that has been
done. We do not approve of the approach of the
Committee.
13. Having, thus, disposed of the issue about the
firm, sound and solid documentary evidence in favour of
the petitioner, we proceed to examine the reasons and
answers to the other issues about affinity test etc.,
recorded by the Committee in order to reject the caste
claim of the petitioner. At the outset, we find that
the Committee relied on the alleged statement of the
petitioner dated 22nd December, 1989, and also relied
on the comparative analysis for allegedly providing
different information and different statements from
20th October, 1989 till 26th November, 2012. We have
carefully perused the comparative analysis shown by the
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Committee in the impugned order. It is stated by the
Committee in the first place that the earlier statement
dated 22nd November, 1989 referred by the Committee is
of the petitioner. That is factually wrong, since that
statement is of his father and on left side, signatures
of the petitioner and one more person are seen. The
fact, however, remains that the statement is of his
father and not of the petitioner. The further statement
in the impugned order that petitioner s father s
statement and grand-father s statement were recorded
during the course of hearing is also wrong, because
petitioner s father and grand-father s statement were
never recorded during hearing by the committee either
after remand from the Apex Court or before it. Thus,
at one place the Committee says that the statement of
the petitioner was recorded on 22nd November, 1989,
while it is stated that during the course of hearing,
his father s and grand-father s statements were
recorded. In fact, the father and grand-father were
never examined by the Committee as stated. Perusal of
the record shows that there is a statement of the
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father of the petitioner recorded on 22nd November,
1989, i.e., prior to remand in the initial stages and
the said statement does not show any serious deviation
from the affinities of the tribe Halba as stated in the
reasons part of the order. The Committee has, thus,
made a total confusion as to evidence for rejecting the
claim on the affinity test. It clearly appears from
the record that after remand, the Vigilance Cell
collected documents, recorded statements of petitioner
on 21st December, 2011, Revati Bakde on 18th February,
2012, joint statement of petitioner and his father
Nilkanth on 26th November, 2012, Vatsalabai Parate and
Arun Katde on 5th December, 2012. But all these
statements appeared to be of no significance to the
Committee on the affinity test. The Committee has given
general reasons by reading something about the
statement dated 22nd November, 1989 which is also
wrongly ascribed to the petitioner. This clearly shows
that the Committee did not seriously and carefully
apply its mind as to whose statement it was, i.e., the
one dated 22nd November, 1989 and by recording that it
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was of the petitioner, it made a factual error. We,
thus, find that the Committee has given undue and
unnecessary importance to the wrong facts to conclude
that the affinity test was not proved by the
petitioner. It is true that the burden of proof would
be on the petitioner. Even assuming that the father of
the petitioner in his statement dated 22nd November,
1989 expressed one or the other discrepant or nonexisting
traits, the question is while deciding the
claim in the wake of overwhelming, undoubted,
infallible pre-independence documentary evidence right
from 1899, 1916 showing the caste as Halbi , upon
keeping in mind the concept of preponderance of
probabilities and preference to the documentary
evidence as compared to oral evidence, should the caste
claim be rejected outright? We do not think so. The
duty of the Committee would be to have all types of
evidences in juxtaposition and take a prudent, unbiased
view to come to a conclusion. In the instant case, as
observed by the Apex Court and by us as well,
petitioner produced overwhelming documentary evidence
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on record from his paternal side to prove that he
belongs to Halbi Scheduled Tribe.
14. It is now interesting to consider the
enthusiasm of the Vigilance Cell and the Committee.
The Vigilance Cell and the Committee picked up a thread
from the statement of the petitioner that the
petitioner s family members or the petitioner himself
did not have any inter-caste marriage. With this
preface, the Vigilance Cell as well as the Committee
went out to find out the documentary evidence in
respect of the grand-mother, mother and the wife of the
petitioner and a 2011 booklet of Kosti Samaj about
which petitioner was not confronted. Having collected
those documents, the Vigilance Cell as well as the
Committee found that those documents indicated the
caste of the wife of the petitioner and the other
maternal side relatives of the petitioner as Koshti.
On this background, the Committee went ahead and held
that these documents clearly outweigh the claim of the
petitioner that he belongs to Halbi Scheduled Tribe
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and that is, in fact, the justification which has been
also given in the Affidavit-in-Reply by the respondent
no.1.
15. It is a trite law that in a patriarchal
society, caste is determined by the caste of the
father. Obviously, therefore, the enquiry into the
candidate s caste can best be made by examining the
father or others from the paternal side, such as uncles
etc. This view was taken by the Division Bench of this
Court in Heera Shalikram Mundharikar Vs. Scheduled
Tribe Caste Certificate Scrutiny Committee & others
[2010 (6) Mh.L.J. 274] with the following
observations:-
4. ..................................
.........According to the learned Counsel
for the petitioner, there was no reason
why the Vigilance Cell and the Caste
Scrutiny Committee overlooked examining
her father. The learned Counsel also
relied on sub-rule (5) of Rule 12 of the
Maharashtra Scheduled Tribes (Regulation
of Issuance and Verification of)
Certificate Rules, 2003 which reads as
follows:-
(5) The Vigilance Cell shall
also examine the parents or
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guardian or the applicant for
the purpose of verification of
their Tribe, of the applicant.
We find that the order of the Scrutiny
Committee is vitiated due to noncompliance
of sub-rule (5) of Rule 12.
The Rule requires the Vigilance Cell to
examine the parents or guardians of the
applicant. The word Parents implies both
the father and the mother. The need for
examining the father as well as the mother
cannot be undermined in a case of this
nature. It is well-known that in a
patriarchal society, caste is determined
by the caste of the father. An enquiry
into the candidate s caste can be best
made by examining the father or others on
the paternal side, such as uncles. We do
not see how it is possible to produce a
correct result in scrutiny without
examining the father or such other
relatives on the paternal side as are
available. We accordingly hold that subrule
(5) of Rule 12 which requires the
Vigilance Cell to submit a report only
after examining both the parents is
mandatory. We, therefore, hold that the
Vigilance Cell has acted contrary to the
Rules in holding the enquiry and
submitting the report. ...
We respectfully follow the said view. In fact, Mr.
Gangal, learned counsel for the respondent-Committee
fairly stated that in India, the caste is determined on
the basis of the caste of the father. But then the
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explanation tendered by Mr. Gangal on the above aspect
is that the Vigilance Cell as well as the Committee
went to find out the documents from the maternal side
of the petitioner, because he stated that no intercaste
marriage was performed by him or any of his relatives
and that was the only reason for undertaking the
exercise. We are astonished at the way the Vigilance
Cell and the Caste Scrutiny Committee conducted itself
when determination of caste on the basis of the
documents of the maternal relatives, i.e., mother,
grand-mother or the wife of the petitioner. A three-
Judge Bench of the Supreme Court in Shobha Hymavathi
Dev Vs. Setti Gangadhara Swamy & others [(2005) 2 SCC
244] relied upon the Division Bench Judgment in the
case of Valsamma Paul (Mrs.) Vs. Cochin University &
others [(1996) 3 SCC 545] rendered by the Supreme
Court while dealing with the claim for backward class
when made upon marriage/intercaste marriage, in which
it observed thus:-
30. It would thus be seen that the
institution of marriage is one of the
sound social institutions to bring harmony
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and integration in social fabric. The
Shastric law among Hindus has undergone
sea change, in the rigidity of Shastric
prescriptions. In relation to intestate
succession of property, marriage, adoption
and maintenance amongst Hindus, they are
brought under statutory operation
appropriately underpinning the rigid
Shastric prohibitions, restrictions to
operate in harmony with the Universal
Declaration of Human Rights and
Constitutional Rights. The right to
divorce which is unknown to Hindu law is
made feasible and an irretrievable
breakdown of the marriage is made a ground
so as to enable the couple to seek divorce
by mutual consent. The Hindu Marriage
Act, 1956 and Special Marriage Act, 1954
made the marriage between persons
belonging to different castes and
religions as valid marriage. Even local
amendments in Section 7-A to the Hindu
Marriage Act, 1956 like in Tamil Nadu,
removed the rigidity of celebrating the
marriages in accordance with Shastric
prescription like Kanyadan and Saptapadhi
being not mandatory, recognized social
marriage as valid. Right to maintenance
from the divorced husband is provided
under the Hindu Adoption and Maintenance
Act, 1956 and Section 125 of the Code of
Criminal Procedure, 1973 so long as she
remains unmarried. Under Hindu Minority
and Maintenance Act, she is entitled to
maintenance from father-in-law. Similar
gender equality is available to other
citizens consistent with human rights and
under Article 15 (3) of the Constitution.
The march of law lays emphasis on the
rights of the individual for equality.
The form of marriages is relegated to back
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door as unessential. These are matters of
belief and practice and not core content.
Trying Tali is a must and without it
marriage is not complete in South India
among all Hindus and in some parts among
Harijan Christians, while exchange of
rings would do in North India.
Ritualistic celebration of marriage would
be considered by some as valid, while most
people in other sections think that factum
of marriage is enough. When in Tamil Nadu
such marriage is statutorily valid, would
it become invalid in other parts of the
country? The answer would, obviously and
emphatically be, NO . Inter-caste
marriages and adoption are two important
social institutions through which
secularism would find its fruitful and
solid base for an egalitarian social order
under the Constitution. Therefore, due
recognition should be accorded for social
mobility and integration and accordingly
its recognition must be upheld as valid
law.
31. It is well-settled law from
Bhoobum Moyee Debia v. Ram Kishore Acharj
Chowdhry that judiciary recognized a
century and a half ago that a husband and
wife are one under Hindu law, and so long
as the wife survives, she is half of the
husband. She is Sapinda of her husband
as held in Lulloobhoy Bappoobhoy Cassidass
Moolchand v. Cassibai. It would,
therefore, be clear that be it either
under the Canon law or the Hindu law, on
marriage the wife becomes an integral part
of husband s marital home entitled to
equal status of husband as a member of the
family. Therefore, the lady, on marriage,
becomes a member of the family and thereby
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she becomes a member of the caste to which
she moved. The caste rigidity breaks down
and would stand no impediment to her
becoming a member of the family to which
the husband belongs and she gets herself
transplanted.
32. The immediate question arises :
Whether recognition of the community is a
pre-condition? Though it was consistently
held that recognition is a circumstance to
be taken into consideration, marriage,
being personal right of the spouses they
are entitled to live, after marriage,
openly to the knowledge all the members of
the community or locality in which they
live and by such living they acquire
married status. In the light of the
constitutional philosophy of social
integrity and national unity, right to
equality assured by the human rights and
the Constitution of India, on marriage of
a man and a woman, they become members of
the family and are entitled to the social
status as married couple recognition per
se is not a pre-condition but entitled to
be considered, when evidence is available.
It is common knowledge that with education
or advance of economic status, young men
and women marry against the wishes of
parents and in many a case consent or
recognition would scarcely be given by
either or both the parties or parents of
both spouses. Recognition by family or
community is not a pre-condition for
married status.
Thereafter, in a concurring judgment
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separately written by S.B. Sinha, J. in the case of
Punit Rai Vs. Dinesh Chaudhary [(2003) 8 SCC 204],
paras 26 to 36 and para 41 said thus:-
26. Caste has been defined in Collins
English Dictionary as any of the four
major hereditary classes, namely, the
Brahman, Kshatriya, Vaisya and Sudra into
which Hindu societiy is divided .
27. The caste system in India is
ingrained in the Indian mind. A person,
in the absence of any statutory law, would
inherit his caste from his father and not
his mother even in a case of intercaste
marriage.
28. In The Caste System in India
Myth and Reality by Dr. Rajendra Pandey,
the different attributes of the caste as
unit mentioned by various writers has been
stated thus :
1. Basic (pivotal) attribute :
Endogamy.
2. Sufficiently relevant
attributes:
(i) Membership by birth.
(ii) Common occupation.
(iii)Caste Council.
3. Peripheral attributes:
(i) Name.
(ii) Diacritical signs.
Following the same pattern of
attribute hierarchy, the attributes that
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characterize caste as system have been
drawn up and set in as follows:
1. Basic attribute : Plurality of
interacting endogamous groups.
2. Sufficiently relevant attribute :
Hierarchy.
3. Peripheral attribute : Traditional
division of labour.
Besides these, Ghurye among others,
has also mentioned segmental division of
society, hierarchy, restriction on feeding
and social intercourse, and civil and
religious disabilities and privileges of
the different sections as characteristics
of the caste. Above them all, Nagendra
has made mention of the principle of
individual freedom as one of the
attributes of the caste, which seems to
have been omitted by most of the authors.
In summary, then, hierarchy,
restricted commensality and connubiality,
hereditary occupation and a clear-cut
differentiation of functions, ritual
observance, and the principle of
individual freedom are characteristics of
the caste system till today.
29. In Caste in Modern India and other
Essays by M.N. Srinivas at p.3, it is
stated :
A sociologist would define
caste as a hereditary,
endogamous, usually localized
group, having a traditional
association with an occupation,
and a particular position in the
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local hierarchy of castes.
Relations between castes are
governed, among other things by
the concepts of pollution and
purity, and generally, maximum
commensality occurs within the
caste.
30. In Caste and the Law in India by
Justice S.B. Wad at p.30 under the heading
Sociological Implications , it is
stated :
Traditionally, a person
belongs to a caste in which he
is born. The caste of the
parents determines his caste but
in case of reconversion a person
has the liberty to renounce his
casteless status and voluntarily
accept his original caste. His
caste status at birth is not
immutable. Change of religion
does not necessarily mean loss
of caste. If the original caste
does not positively disapprove,
the acceptance of the caste can
be presumed. Such acceptance can
also be presumed if he is
elected by a majority to a
reserved seat. Although it
appears that some dent is made
in the classical concept of
caste, it may be noticed that
the principle that caste is
created by birth is not
dethroned. There is also a
judicial recognition of caste
autonomy including the right to
outcaste a person.
31. If he is considered to be a
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member of the Scheduled Caste, he has
to be accepted by the community. (See
C.M. Arumugam v. S. Rajgopal and
Principal, Guyntur Medical College v.
Y. Mohan Rao).
32. A Christian by birth when
converted to Hinduism and married a
member of the Scheduled Caste was held
to be belonging to her husband s caste
on the evidence that she had not only
been accepted but also welcomed by the
important members, including the
President and Vice-President of the
community. (See Kailash Sonkar v. Maya
Devi).
33. In the instant case there is
nothing on record to show that the
respondent has ever been treated to be
a member of the Scheduled Caste. In
fact evidence suggests that he has not
been so treated. He as well as his
brothers and other members of his
family are married to persons belonging
to his own caste i.e. Kurmi .
34. There was no attempt on the part
of the respondent herein to bring on
record any material to the effect that
he was treated as a member of the
Pasi community. Furthermore, no
evidence has been brought on record to
show that the family of the respondent
had adopted and had been practising the
customary traits and tenets of the
Pasi community.
35. The question as to whether a
person belongs to a particular caste or
not has to be determined by the
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statutory authorities specified
therefor.
36. In B. Basavalingappa v. D.
Munichinnappa a Constitution Bench of
this Court considered the scope of
Articles 341 (1) and (2) [which is in
pari materia with Articles 342 (1) and
(2)], and held it is not open to any
person to lead evidence to establish
that the caste to which he belongs to
is the same as and/or part of another
caste, which is included in the
Constitution (Scheduled Castes) Order.
It was observed : (AIR p. 1271, para 6)
6.It may be accepted that it
is not open to make any
modification in the Order by
producing evidence to show
(for example) that though
caste A alone is mentioned in
the Order, caste B is also a
part of caste A and,
therefore, must be deemed to
be included in caste A. It
may also be accepted that
wherever one caste has another
name it has been mentioned in
brackets after it in the order
: [See Aray (Mala), Dakkal
(Dokkalwar) etc.] Therefore,
generally speaking it would
not be open to any person to
lead evidence to establish
that caste B (in the example
quoted above) is part of caste
A notified in the order.
41. Determination of caste of a
person is governed by the customary
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laws. A person under the customary
Hindu law would be inheriting his caste
from his father. In this case, it is
not denied or disputed that the
respondent s father belonged to a
Kurmi caste. He was, therefore, not
a member of the Scheduled Caste. The
caste of the father, therefore, will be
the determinative factor in absence of
any law. ...
It is, thus, clear that in the customary Hindu
law, a person, in the absence of any statutory law,
would inherit his caste from father and not from his
mother, even in case of intercaste marriage. We are
fortified by the aforesaid Judgments of the Apex Court
that the documents from the maternal relatives, i.e.,
mother, grand-mother or the wife of the petitioner,
were not determinative of the caste status of the
petitioner.
The documents from the side of the father of
the petitioner right from 1899, 1916 consistently
indicated the caste as Halbi which is Scheduled
Tribe. There is not a single document from the
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paternal side of the petitioner contradicting the said
documentary evidence, or indicating any mixture of
caste Halba or Koshti, or as the case may be. The
Vigilance Cell as well as the Committee, thus, went
tangent by resorting to the collection of documentary
evidence from the side of the wife or the maternal side
of the petitioner, resulting into a futile exercise not
acceptable in law, since what is relevant is the caste
derived by a son from his father and ancestors from the
paternal side. The Act of 2000 and the Rules framed
thereunder also amplify the aforesaid legal position
and we must respect and applaud the wisdom of the
Legislature in enacting so. The following Rules
clearly indicate the position that what is relevant is
the paternal side and not the maternal side:-
2. Definitions .
(f) Relative means a blood
relative from paternal
side of the applicant;
3. Procedure for obtaining Scheduled
tribe certificate from the Competent
Authority.
(3) The applicant shall furnish the
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attested copies of the following
documents with his application for
obtaining the Scheduled Tribe
Certificate and shall produce the
originals thereof, on demand, by the
Competent Authority:-
(a) (i) Extract of the Birth
Register in respect of
applicant, his father or
elderly relatives from
paternal side;
(ii) extract of the Primary
School Admission Register
of the applicant, his
father or grand father, if
available; and
(iii)Primary School leave
certificate of the
applicant and his father;
Perusal of the above clearly shows the scheme of the
act and the Rules that what is relevant is the
documentary evidence from the paternal relatives or
paternal side. We, therefore, do not approve of the
Vigilance Cell as well as the Committee in collecting
documents from the maternal side or the documents from
the side of the wife, merely because a statement was
made that there are no intercaste marriages in the
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family. The Committee is under an obligation and has a
duty to act according to law and follow the rule of
law. It cannot divest itself from its original
function of finding out the caste as ordained by law.
However, in the instant case, it went tangent and
collected irrelevant evidence somehow to repel the case
of the petitioner or the documentary evidence
establishing the case of the petitioner from paternal
side.
In para 15 (d) of the impugned order, the
Committee has stated that petitioner relied on Caste
Certificates and Validity Certificates of relations,
and that they show the caste as Koshti . The document
at Sr. No. (v) of 18th August, 1899 [Gangaram] was
relied by the petitioner about which we have already
made the discussion, but the documents (i) to (iv) or
the persons named against them are not the relatives of
the petitioner, nor he filed those documents. This is
clear from the following portion at page 15 of the
petition, and those averments are not denied in para 34
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at page 556 which is the Affidavit-in-Reply of
Respondent No.1 :-
20. ..................................
........Further, the respondent no.1
Committee has referred to certain caste
certificates/validity certificates
alleging that they are the relatives of
the petitioner and are Koshti by caste and
their traditional occupation is
Vinkari/weaving. In this behalf, the
petitioner submits that firstly, the
documents mentioned at Sr. No. (i), (ii) &
(iv) are not supplied to the petitioner.
Moreover, those persons are not related to
the petitioner. As regards the document
at Sr. No. (iii) though copy of this
document is supplied to the petitioner,
the name of the said gentleman does not
appear in family tree disclosed by
petitioner and his father. As regards the
document at Sr. No. (v) which is the
document written in modilipi, the caste of
great grandfather of the petitioner has
been clearly recorded as Halbi and,
therefore, merely because his occupation
is recorded as Vinkari , it is wholly
erroneous on the part of the respondent
no.1 Committee to hold that the
petitioner does not belong to Halbi
Scheduled Tribe. ....
It clearly appears that the Committee went by
the same surname Katole in these documents, without
asking the petitioner to confront or contradict those
persons or supplying related documents to him. Common
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surnames cannot be determinative in such matters.
16. The next question is about the blood relatives
having been issued Caste Validity Certificates and the
legal position thereabout. Rajeshwar is the real
brother of the father of the petitioner. The Committee
has issued a Caste Validity Certificate to the daughter
of Rajeshwar, namely Rupali Rajeshwar Katole as Halba
vide Sr. No. 098637 dated 27th June, 2008. The
Certificate is produced at Annexure-16-G with the
petition. It is not in dispute that no appeal has been
filed by the Committee or the State against the
decision dated 18th February, 2008 in Writ Petition No.
2053 of 2007 till this date; but the Validity
Certificate was issued. In view of the fact that in
the case of Rupali, the Judgment was rendered on 18th
February, 2008 and yet it has not been put to challenge
and on the contrary the Validity Certificate was issued
in her favour, we should have no difficulty in holding
that the said decision has become final and conclusive.
Rupali, who is the blood relative of the petitioner,
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has been recognized as Scheduled Tribe by the Committee
itself. The submission by Mr. Gangal that Rupali s
decision made by this Court was based on a special
concession given by the Govt. Pleader in the case of
Ramchandra Katole, other brother of the father of the
petitioner, does not appeal to us. The reason is that
in the said Judgment, this Court, after referring to
the concession given by the learned Govt. Pleader in
respect of Ramchandra, made the following observations
in the said judgment of Rupali:-
It is apparent from the above long
order that has been passed by Scrutiny
Committee, the documents at serial nos.
14, 18 to 21 and the High Court orders
which were passed on concession of the
respondent and their active stand that
they wish to withdraw the order cancelling
the certificate issued in favour of the
petitioner and/or uncle of the petitioner,
this apparently shows non-application of
mind. Once the authorities choose to
withdraw their orders without any
qualification or condition, they must bear
the consequences arising from such
withdrawal of the concession. The State
or the Committee is not expected to act in
a arbitrary manner and keep on taking
inconsistent stands, one after the other.
Fairness in State action is expected and
every State action should be free of
arbitrariness or discrimination. They have
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opted to create an anomalous situation,
inasmuch as the father of the petitioner
even as on today as per the orders of the
Courts is a person belonging to Halba
tribe while the daughter would lose that
character despite being that she is still
unmarried and lives with her family.
This Court criticized the inconsistent stand or
creation of anomalous situation between the blood
relatives and the Committee having acceded to the said
position till date, we do not find any merit in the
submission made by the learned counsel for the
respondent no.1.
17. In so far as the case of Vikram Ramchandra
Katole, the other cousin of the petitioner, is
concerned, we find that in Writ Petition No. 4016 of
2010, by order dated 4th March, 2011, the Judgment of
this Court followed the decision in the case of
Apoorva Vinay Nichale Vs. Divisional Caste Certificate
Scrutiny Committee No.1 & others [2010(6) Mh.L.J. 401]
and held that the blood relatives cannot be given
different treatment when one of them got the Caste
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Validity Certificate unless case of want of
jurisdiction or playing of fraud is established. At
this stage, we would like to quote the following
observations from the decision in the case of Apoorva:-
5. The Division Bench of this Court in
Mahesh Pralhadrao Lad vs. State of
Maharashtra, 2009 (2) Mh.L.J. 90 has
observed that in the absence of any power
under the Rules conferred on the
Government to issue a Govt. Resolution,
the Govt. Resolution cannot be said to be
binding on the committee nor the committee
in exercise of its jurisdiction is bound
to follow the same. The Division Bench
further observed that the Government
Resolution may be considered in the
context of Rule 12 of the Rules and if the
committee while exercising jurisdiction is
satisfied that the caste validity
certificate issued to a blood relative is
genuine then instead of calling the
Vigilance Cell Report it may proceed to
issue the caste validity certificate. We
are in respectful agreement with the view
taken by the Division Bench. We would
further add that the committee would be
entitled to refuse to follow the caste
validity certificate granted to a blood
relative if it appears to the committee
that the earlier caste certificate has
been scrutinized by a Committee without
jurisdiction or the validity order is
obtained by committing fraud on the
Committee.
9. In the present case, we find that the
committee has disbelieved the petitioner s
case that she belongs to Kanjar Bhat after
calling the school leaving certificate of
petitioner s father and noticing that the
original caste written on it was Thakur
and that was subsequently changed to
Kanjar Bhat. The Committee observed that
the caste has been changed without
complying with the procedure prescribed by
section 48 (e) and 132 (3) of Mumbai
Primary Education Act. In fact, the caste
has been changed on the basis of the
affidavit. From the findings of the
committee it appears that the committee
has observed that the change of caste has
been done illegally. Obviously, the
committee which decided the caste claim of
the petitioner s sister did not hold the
same view, otherwise it would have refused
to grant validity. In the circumstances,
we are of the view that the committee
which has expressed a doubt about the
validity of caste claim of the petitioner
and has described it as a mistake in its
order, ought not to have arrived at a
different conclusion. The matters
pertaining to validity of caste have a
great impact on the candidate as well as
on the future generations in many matters
varying from marriage to education and
enjoyment, and therefore where committee
has given a finding about the validity of
the caste of a candidate another committee
ought not to refuse the same status to a
blood relative who applies. A merely
different view on the same facts would not
entitle the committee dealing with the
subsequent caste claim to reject it.
There is, however, no doubt as observed by
us earlier that if a committee is of the
view that the earlier certificate is
obtained by fraud it would not be bound to
follow the earlier caste validity
certificate and is entitled to refuse the
caste claim and also addition initiate
proceedings for cancellation of the
earlier order. In this view view of the
matter, we are of the view that the
petition must succeed. Rule is made
absolute in above terms. The Caste
Scrutiny Committee is directed to furnish
caste validity certificate to the
petitioner.
The Committee accordingly issued Validity Certificate
to Vikram as well. The counsel for the respondent no.1
at the bar did not advance any case on behalf of
respondent-Committee about fraud or the jurisdictional
error of the then Committee in the matter of grant of
validity to Rupali and Vikram who are the blood
relatives of the petitioner. Therefore, in the light of
the view taken by this Court as above in the case of
Apoorva, we have no hesitation in holding that the
petitioner cannot be differently treated or no
different yardstick can be applied otherwise than in
the cases of Rupali and Vikram, apart from the fact
that independently as discussed by us above, the
petitioner proved on the basis of voluminous
documentary evidence on record that he is Halbi
Scheduled Tribe. We, therefore, hold that the decision
of the Committee not to apply the blood relationship
principle about issuance of Validity Certificate in the
instant case for the reasons given by us above is
wholly illegal. The submission that the Certificates
were obtained on the strength of concession given by
the Govt. Pleader in the case of Ramchandra Katole must
be, in the light of the above discussion, held to be
unacceptable by virtue of the own conduct of the
Committee. The consequences of declaring a blood
relative as Scheduled Tribe and another blood relative
as non-Scheduled Tribe are far serious and as held in
the case of Apoorva, such a course cannot be and should
not be adopted by the Committee unless there are well
recognized reasons like fraud, misrepresentation, lack
of jurisdiction, against the public policy and so on
and so forth. But on those aspects, no material has
been shown to us, nor it is even the case of the
respondents. To sum up, we declare that the petitioner
belongs to Halbi which is a Scheduled Tribe.
18. In view of the detailed discussion made by us
above, we are of the view that the other submissions or
other various decision cited before us by the counsel
for the parties need not be referred to.
19. The upshot of the above discussion that we
must make the following order:-
O R D E R
[i] Writ Petition No. 2512 of 2013 is allowed.
[ii] Rule is made absolute in terms of Prayer
Clause [1] of the petition so also amended
prayer clause in prayer clause [1].
[iii] The respondent no.1-Committee shall issue
Validity Certificate to the petitioner,
within a period of three months from
today.
20. In the circumstances of the case, no order
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judicata is codified in Section 11 of Code of Civil
Procedure. Section 11 generally comes into play in
relation to civil suits. But apart from the codified
law, in the light of principles of good conscience and
equity and as a public policy, the doctrine has been
applied in various other kinds of proceedings and
situations by Courts in India and other countries.
However, the first principle for its application is the
rule of conclusiveness of judgment or a finality
attached to it. An order made conditional on the fate
of the decision which would be pronounced by the Apex
Court cannot be called a conclusive or final
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT NAGPUR.
Writ Petition No.2512 of 2013
With
Civil Application [CAW] No. 2459 of 2013
Anand son of Nilkanth Katole,
Versus
The Scheduled Tribe Caste
Certificate Scrutiny
Committee, Amravati,
CORAM : A.B.CHAUDHARI AND
A.S. CHANDURKAR, JJ.
Date : 04th April, 2014.
Citation;2014(5)ALLMR181
Read original judgment here;click here
01. By the present Writ Petition, the
petitioner Anand Katole has put to challenge the
order dated 17th April, 2013 passed by the
respondent no.1 Scheduled Tribes Caste
Certificates Scrutiny Committee, Amravati, with a
further prayer to declare that the petitioner
Anand belongs to Halba/Halbi, a Scheduled Tribe.
02. Heard learned Senior Adv. Mr. S.V. Manohar
for the applicant-intervener in Civil Application
No. 2459 of 2013, and learned Adv. Mr. Vikas
Kulsunge for applicants-interveners in Civil
Application No. 658 of 2014. Considering the
reasons stated in both the Civil Applications, the
Civil Applications are allowed and disposed of.
F A C T S :
03. The present litigation has a chequered
history. The Petitioner is B.E., and was
appointed by order dated 16th March, 1998 as a
Field Officer in the category of Scheduled Tribe
on the establishment of the Maharashtra Pollution
Control Board, and was ultimately confirmed in
service. On 4th November, 2003, his employer
issued a notice of termination for failure to
produce the Caste Validity Certificate of he
belonging to Halba/Halbi, Scheduled Tribe. The
petitioner filed Writ Petition No. 4688 of 2003
and by order dated 2nd December, 2003, this Court
allowed the Writ Petition and directed the
respondent no.1 Committee to decide his tribe
claim within eight weeks, and, in the meanwhile,
the termination order was kept in abeyance. The
respondent no.1 - Committee thereafter on 20th
March, 2004, decided the tribe claim of the
petitioner and rejected it. The petitioner filed
Writ Petition No. 1687 of 2004 in this Court, and
by Judgment and Order dated 5th May, 2004, this
Court dismissed the Writ Petition and confirmed
the order passed by the respondent no.1
Committee. The petitioner went ahead and filed an
appeal in Supreme Court vide Civil Appeal No. 6340
of 2004. The Apex Court decided the said Appeal
by Judgment and Order dated 8th November, 2011, and
set aside both, the Judgment of this Court as well
as the order of Scrutiny Committee and remitted
the matter to the respondent no.1 Scrutiny
Committee for a fresh decision. The Committee,
after taking sufficient time, finally took the
decision by the order, which is impugned in the
present petition and rejected the tribe claim of
the petitioner. Hence this Writ Petition again.
ARGUMENTS :
04. Learned Senior Adv., Mr. M.G. Bhangde
appearing for the petitioner made the following
submissions:-
[a] The counsel for the respondent
Scrutiny Committee had raised the
Preliminary objection before this
Court in the present Writ Petition
seeking dismissal of this Writ
Petition on the Preliminary
objections, which were heard by this
Court, and this Court recorded an
order on 30th January, 2014, holding
in para 18 of the said order that
the Preliminary objection, as raised
by the Committee, was overruled
being without any substance and was,
thus, rejected. The respondent went
to the Apex Court against the said
order dated 30th January, 2014 and
the Apex Court dismissed the Special
Leave Petition and hence according
to Mr. Bhangde, the order rejecting
the Preliminary Objection stands
confirmed and cannot now be reopened
and this Court will have to
proceed with hearing of the petition
on merits.
[b] Turning to the merits of the case,
the learned Senior Adv., for the
petitioner submitted that after
remand of the matter from the Apex
Court to the Respondent No.1
Scrutiny Committee, a fresh
Vigilance Cell Report was called by
the Committee, which was served on
the petitioner along with a Showcause-
Notice dated 13th December,
2012. The petitioner filed his
reply to the said report vide reply
dated 12th February, 2013.
Thereafter, the petitioner was never
called for any hearing or for asking
any explanation and almost after two
months, the impugned order came to
be passed.
[c] The petitioner was granted
conditional Validity Certificate on
30th June, 1990, which was then
issued because of pendency of the
main matter before the Apex Court,
i.e., Milind's case and as a matter
of policy, pending decision of
Milind's case, such conditional
Validity Certificates were issued to
students,employees etc. Fact,
however, remains, according to Mr.
Bhangde, that the Caste Certificate
on which the conditional validity
was issued on 30th June, 1990, was
never verified as per the procedure
laid down after the commencement of
the Act, namely Maharashtra Scheduled
Castes, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes and Special
Backward Category (Regulation of
Issuance & Verification of) Caste
Certificates Act, 2000 (Act No. 23 of
2001) and coming into force of the
Rules. But a stand has been taken
by the Committee that on 15th March,
2004, pursuant to the directions of
the Govt., after decision of the
Supreme Court in the case of Milind
against Milind, the conditional
validity was cancelled, about which
the petitioner was never made aware.
He, therefore, submitted that the
petitioner has challenged the same
accordingly by amending the Writ
Petition.
[d] The Committee under the impugned
order framed as many as six Issues.
Issue Nos. 1 and 4 are the connected
Issues. Perusal of the reasons in
answer to Issue Nos. 1 and 4 clearly
show that the reasons bristle with
the reasons occurring in the Supreme
Court judgment, so also this Court
in so far as the issue about the
sub-caste is concerned. It was not
expected of the Committee to have
recorded conflicting reasons not
only in relation to Issue Nos. 1 to
6 framed by it, but also on the
other aspects, so also the
Affidavits-in-Reply filed in this
Court to the present Writ petition,
which are bordering the contempt.
The Committee relied on the
judgments of this Court in relation
to the Thakur caste which cannot
have any application, since the
nomenclature, namely Thakur , as
found in all those decisions of the
Bombay High Court pertain to the
upper class Thakur and the Scheduled
Tribe Thakur which is not the case
in so far as Halba/Halbi or Halba
Koshti/Halbi Koshti etc., is
concerned. On the contrary, the
Supreme Court rejected the theory of
sub-caste of Halbi as Halba Koshti
and held that there is no such caste
as Halba Koshti. With reference to
the status as Scheduled Tribe as
proclaimed by the relevant
Notification, the Committee has
referred to certain Certificates
showing the caste as Koshti vide
Clause 15 (d) [i] to [v] of the
impugned order and held that the
petitioner s ancestors and relatives
are having sub-caste Koshti and,
therefore, they are not the
primitive Halbas. But, as a matter
of fact, none of these persons are
related to the petitioner, nor there
is any evidence to that effect and
the said conclusion drawn by the
Committee is perverse and one-sided.
[e] As regards Issue Nos. 2 and 3
discussed by the Committee, learned
Senior Adv. Mr. Bhangde submitted
that the reasons given by the
Committee are contrary to the remand
order made by the Supreme Court.
That apart, the comparative analysis
shown by the Committee is also
factually wrong, since the grandfather
of the petitioner was
admittedly never examined.
Secondly, reliance has been placed
on the alleged statement of the
father, which was never recorded in
the fresh Vigilance enquiry after
the remand order was made by the
Supreme Court. The statement of
father recorded earlier appears to
have been relied upon by the
Committee, but then the said
statement also does not reflect what
is stated in the impugned part of
the order in answer to Issue Nos. 2
and 3.
[f] The learned Senior Counsel then went
on to argue that the petitioner does
not dispute the position that the
affinity test is relevant. But
according to him, as indicated in
the Judgment of the Supreme Court
itself, the affinity test cannot be
all and end all of the matter and at
any rate cannot be conclusive to
adjudicate the caste claim. He then
argued that there are no reasons why
the Committee has rejected the claim
on the affinity test, and by merely
saying that there is no match as to
the affinity test for the caste
claim of the petitioner, there was
nothing to reject the caste claim on
that ground.
[g] The learned Senior Adv., for the
petitioner then argued with
reference to Issue No.5 that the
petitioner cannot and does not
dispute the position of law that the
Validity Certificates issued to the
relatives of the petitioner ipso
facto cannot be the only reason for
declaring the claim of the
petitioner as valid. But then
according to him, the Vigilance
Report or the order of the Committee
ought to show the distinction for
not validating the caste claim of
the petitioner on that ground which
has not been shown in the instant
case. On the contrary, the blood
relatives of the petitioner by name
Vikram and Rupali, who are the
children of real brother Rajeshwar
of the father of the petitioner have
been given the Caste Validity
Certificates as Halba and no reason
is forthcoming as to why the
petitioner should not be given the
same benefit. Mr. Bhangde cited
some decision of this Court on this
proposition.
[h] According to learned Counsel in
patriarchal society, the caste is
determined by the caste of the
father as held by this Court in the
case of Hira Shalikram Mundharikar
Vs. Scheduled Tribe Caste
Certificate Scrutiny Committee [2010
(6) Mh. L.J. 274]. Elaborating the
said aspect, Mr. Bhangde then argued
inviting our attention to the
Maharashtra Scheduled Tribes
(Regulation of Issuance & Verification
of) Certificates Rules, 2003 framed
under Act No. 23 of 2001, that Rules 2
(f), 3(3) (a) (i) (ii) and (iii) and
(d), Rule 11 (c) (vi), (d) (iii) and
Form-F-20 (d) (2) (3), in terms, show
that what is relevant is the caste of
the paternal side or the paternal
relatives. The foundation of the
impugned order, however, shows that the
Committee dug out the certificates or
the documents in relation to alleged
relatives on maternal side and some
alleged relatives with surname Katole
with whom the petitioner has no
concern, and the averments to that
effect on page 15 of the petition have
not been traversed, in which their
caste was said to have been mentioned
as Halba Koshti. This was wholly
irrelevant and further the petitioner
was never offered an opportunity to
explain anything, nor was supplied the
document on that aspect. The reasons
given by the Committee are, therefore,
perverse.
[i] The counsel for the petitioner in
relation to Issue No.6 then submitted
that the attempt of the respondents to
buttress the principles of res
judicata or estoppel is wholly wrong
and unjustified. According to him, the
said principles have no application,
because there was no final adjudication
in respect of the Caste Certificate
dated 27th January, 1989 issued by the
Executive Magistrate, Khamgaon, and
cancellation of the Conditional
Validity Certificate by another order
dated 15th March, 2004, which has also
been challenged by amendment to the
petition, and it was never communicated
to the petitioner and, therefore, the
said order cannot be utilized against
the petitioner. At any rate, the said
order of Committee dated 15th March,
2004 is also under challenge in the
present petition and does not show any
reasons for invalidating the caste
claim of the petitioner. The question
of obtaining the second certificate
does not arise, since the Act of 2000
came into force and thereafter the
certificate from the place of origin
was obtained. The allegations about
the suppression of facts in relation to
obtaining of first certificate or the
cancellation by order dated 15th March,
2004 by the Committee are all
misconceived and, therefore, according
to him, the validity of the Caste
Certificate obtained from the Sub-
Divisional Officer, Pusad on 2nd
January, 2002, has wrongly been denied
by the Committee.
Finally, to substantiate his contentions,
learned Senior Adv. Mr. Bhangde cited the
following decisions:-
[a] Bhanu Kumar Jain vs. Archana Kumar &
another [(2005) 1 SCC 787],
[b] Apoorva Vinay Nichale Vs. Divisional
Caste Certificate Scrutiny Committee
No.1 & others [2010 (6) Mh.L.J. 401],
[c] Heera Shalikram Mundharikar Vs.
Scheduled Tribe Caste Certificate
Scrutiny Committee & others [2010 (6)
Mh.L.J 274],
[d] Smt. Sangita Sahebrao Bhalerao Vs.
State of Mah. & others [Writ Petition
No. 6744 of 2011 decided on 1 2 t h
December, 2013 [Coram V.M. Kanade &
M.S. Sonak, JJ.,
[e] Sajjadanashin Sayyed Md. B.E. EDR. (D)
by Lrs. Vs. Musa Dadabhai Ummer &
others [(2000) 3 SCC 350],
[f] Syed Yakoob Vs. K.S. Radhakrishnan &
others [AIR 1964 SC 477 (1)], and
[g] Union of India & othersVs. Dinanath
Shantaram Karekar & others [(1998) 7
SCC 569],
SUBMISSIONS MADE BY THE RESPONDENTS :
05. Learned Adv. Mr. V.A. Gangal for the
Committee of the respondents meticulously made his
submissions in all details. He made the following
submissions:-
[1] The case at hand is required to be
considered with utmost caution and
care, since the petitioner has played
a fraud and it amounts to fraud on
the Constitution. The petitioner had
earlier obtained a Caste Certificate
on 27th January, 1989 from Executive
Magistrate, Khamgaon, showing his
caste as Halba , and since the
litigation was pending in the Supreme
Court, the State Govt. had issued a
Govt. Resolution due to the pressing
demand for issuing conditional
Validity Certificates, and
accordingly the petitioner was also
issued such Conditional Validity
Certificate on 30th June, 1990.
After the decision of Supreme Court
in the case of Milind Katware, the
Committee passed an order on 15th
March, 2004 cancelling the said
conditional Validity Certificate, and
it was sent to the petitioner on his
last known address. But then he did
not challenge that order of
cancellation or rejection of his
caste claim at that time and as late
as in 2013, he filed amendment
application to challenge the said
order of cancellation dated 15th
March, 2004, which is wholly
impermissible. That apart, the
petitioner never disclosed about
passing of the said order dated 15th
March, 2004 to this Court in the
present Writ Petition and obtained
interim orders from this Court by
::: Downloaded on - 18/09/2014 11:05:56 :::
Bombay High Court
Writ Petition No. 2512 of 2013
21
suppressing the material facts and,
therefore, the petition deserves to
be dismissed on that count alone.
Mr. Gangal then argued that the Act
and the Rules do not contemplate more
than one Caste Certificate and,
therefore, the petitioner is guilty
of commission of fraud by taking a
chance of obtaining first Caste
Certificate dated 27th July, 1989 and
having realized that the same was
invalidated, by suppression, obtained
another Caste Certificate from the
Sub-Divisional Officer, Pusad, on 2nd
January, 2002. Such a course was not
open to the petitioner and,
therefore, the petition deserves to
be dismissed on the ground of fraud.
According to Mr. Gangal, the learned
counsel, the Preliminary Objections
to the petition also ought to be
decided by this Court afresh in the
light of the specific and clear
observations made by the Supreme
Court while not entertaining the
Special Leave Petition against this
Court s order dated 30th January,
2014 rejecting those preliminary
objections.
[2] Mr. Gangal then argued relying on
several decisions of this Court that
the extraordinary writ jurisdiction
of this Court does not extend to
hearing of the Writ Petition like an
appeal and, therefore, the parameters
of the jurisdiction of this Court
being limited, this Court may not be
able to make or embark into a
detailed enquiry against the findings
of facts recorded by the Committee
which consists of the experts and,
therefore, this Court should not
interfere with the findings of facts
recorded by the Committee. The
earlier certificate obtained by the
petitioner was also issued by the
then competent authority and,
therefore, petitioner was not
justified in obtaining second
certificate, since, as per Section 2
(b), the earlier certificate was
valid and there is no contemplation
of obtaining two certificates.
[3] That, the submission made by learned
counsel for the petitioner about
issuance of Validity Certificate
automatically to the petitioner
because of the issuance of such
Validity Certificates to his near
relatives is equally misconceived
according to Mr. Gangal. The said
legal position is no more res in
tegra in the light of the decisions
in the case of Ku. Madhuri Patil,
Parmar, Raju Ramsingh Wasave etc.,
and various judgments of this Court
also. He also argued that despite
removal of area restriction, the
place of the origin of the person is
most relevant for finding out the
claim for tribe and cannot be
ignored. This has been consistently
held by this this Court in several
decisions, including a decision
rendered by one of us [A.B.
Chaudhari, J. at Aurangabad Bench] in
Writ Petition No. 4386 of 20112 in
the case of Somreshwar Waman Thakur,
decided on 23rd October, 2012 and
Writ Petition No. 7813 of 2009 [Dattu
Namdeo Thakur].
[4] As regard the affinity test, Mr.
Gangal, the learned counsel for the
respondents, invited our attention to
the charts prepared and considered by
the Committee clearly showing how
there is no proof of affinity or the
Caste Certificate showing Halba
Koshti etc. The Counsel took us
through the voluminous record and
argued that the burden of proof about
affinity test is certainly on the
petitioner and cannot be shifted on
the Committee as per Section 8 of the
Act and the petitioner failed to
discharge the burden.
[5] Mr. Gangal then argued that merely
because there are some preindependence
and post-independence
documents showing the caste as
Halba/Halbi, the same is not the end
of the matter as held by the Supreme
Court and Division Benches of this
Court at various benches. That being
the position, the submission that
pre-independence documents submitted
by the petitioner were enough to
validate his caste is misconceived.
[6] Mr. Gangal then argued that the
petitioner and his father had made a
statement that the marriage in their
family were solemnized only in their
caste. Based on that statement,
enquiry was made by the Vigilance
Cell which found that many relatives
in the family of the petitioner had
married and even the wife of the
petitioner who was married to him
belonged to Koshti caste because
grand-parents and the mother s
parents and other ancestors records
clearly showed that they belonged to
Koshti and, therefore, there was
nothing wrong in relying upon those
certificate indicating caste as
Koshti.
[7] As to the submissions about the
validation of claim of the blood
relatives of the petitioner, Mr.
Gangal submitted that in case of
Rajeshwar Maroti Katole , who is the
real brother of petitioner s father,
his caste was never determined on
merits, nor was adjudicated, but was
accepted as a special case. All
subsequent validity certificates of
other relatives spoken of by the
petitioner were based on the
affidavit made by Rajeshwar Maroti
Katole, so also in cases of Vikram
Katole, Harish Katole and Sanket
Katole and the Special Leave
Petitions are pending in respect of
both cases.
[8] Refuting the contention about nonsupply
of Vigilance Report and the
documents therewith, learned Adv. Mr.
Gangal argued that in fact all the
documents were duly supplied to the
petitioner and if at all he was not
in receipt of those documents, he
could have applied to the Committee
for obtaining the same and the
petitioner is lately making such a
false claim of not having an
opportunity, which cannot be
accepted.
To support his arguments, learned Adv. Mr.
Gangal relied on the judgment of this Court in Raju
Pundlikrao Burde Vs. Establishment Officer (III-B),
MSEB & another [2004 (3) Bom.C.R. 460]. Finally, he
prayed for dismissal of the Writ Petition with
heavy costs.
06. Mr. S.S. Sanyal, Mr. Vikas Kulsange and Mr.
Sunil Manohar, Senior Advocate with Mr. R.N. Badhe,
Adv., for interveners, opposed the petition and
claimed dismissal thereof while supporting the
stand taken by the respondents.
CONSIDERATION :
07. It would be necessary for us to first take
up the issue raised by learned Adv. Mr. V.A.
Gangal for the respondent no.1, who, relying on
the Supreme Court order dated 3rd March, 2014 in
Special Leave Petition Nos.3894-3895/2014 that was
filed against the Order dated 30th January, 2014 in
the present petition for challenging the said
order rejecting the Preliminary Objection raised
by Mr. Gangal before hearing of the petition on
merits, submitted that despite the said order
dated 30th January, 2014 made by the Division Bench
of this Court, to which one of us [A.S.
Chandurkar, J.] was a party, the respondent no.1
is entitled to re-argue the issue about
Preliminary Objection to the Writ Petition. It
would be also necessary for us, at this stage, to
decide in case of an eventuality of necessity to
make further remand to the Caste Scrutiny
Committee or to refrain from doing so. We have
already noted the submissions made by learned Sr.
Adv., Mr. M.G. Bhangde for the petitioner on this
aspect, that the order on the Preliminary
Objection made by this Court on 30th January, 2014
has put to rest the argument about the Preliminary
Objection sought to be again raised because the
Supreme Court has dismissed the Special Leave
Petition confirming the said order dated 30th
January, 2014 and the further observations in the
order of the Supreme Court would not enable this
Court or the counsel for the respondents to rake
up the Preliminary Issue over and again. We have
repeatedly perused the order on Preliminary Issue
made by this Court on 30th January, 2014. The order
demonstrates consideration of detailed submissions
made by counsel for the rival parties on the
Preliminary Objections and also indicate detailed
well thought reasons for not agreeing with the
Preliminary Objections raised by Mr. Gangal,
learned counsel for the respondent no.1, and
further as a sequel, rejecting the Preliminary
Objections. The order dated 3rd March, 2014 of the
Supreme Court reads thus:-
Permission to file SLP is
granted.
We are not inclined to interfere
at the interlocutory stage. The Special
Leave Petition is, accordingly,
dismissed.
We are sure that the High Court
will consider all the submissions made
before it by the concerned parties.
Having due and respectful regard to the
observations made by the Supreme Court while
dismissing the Special Leave Petition against the
said order dated 30th January, 2014, we are of the
view that we are not required to, nor we would be
justified in ignoring the said order dated 30th
January, 2014 on Preliminary Objection, since, in
our opinion, it would not be adhering to the
judicial discipline. Judicial discipline and
comity is the hallmark of this Institution. For
enhancing the majesty of the Court and for orderly
administration of justice, practicing discipline
would be essential which we do here and,
therefore, hold that the Preliminary Issue decided
under Order dated 30th January, 2014 cannot be
raked up again and again by the respondent no.1 in
the light of dismissal of Special Leave Petition
against the said order made by this Court, to
which one of us [A.S. Chandurkar, J.] is a party.
08. Having disposed of the aforesaid contention
raised by Mr. Gangal as above, we then find, and
as it appeared from the arguments raised by
counsel for both sides, that again the remand
order to the Committee should be made or not is
another concern for this Court, all the more so
because of the contentions raised by the
petitioner about the Committee not affording an
opportunity of being heard to the petitioner or
the Committee not giving an opportunity to the
petitioner to explain certain things or the stand
taken by the Committee that it was for the
petitioner to ask for certain documents or
inspection thereof and make submissions
thereafter. In the instant case, the litigation
commenced in the year 1990, and due to the
pendency of the case of Milind Katware for number
of years before the Apex Court, the lis remained
pending. Even after the decision of Milind
Katware s case by the Apex Court in the year 2000,
by now fourteen years have passed and the
litigation continues We do not want to say that
even second remand order cannot be made if the
circumstances so warrant. But then, if this Court
is satisfied that the evidence brought on record
and all the material and relevant aspects are
clinching, this Court would like to bear in mind
the principle namely interest republicae ut sit
finislitum it concerns the State that there
should be an end to lawsuits.
09. Though we have held that the Preliminary
Objections again raised before us by Mr. Gangal,
learned counsel for the respondent no.1, cannot be
re-opened, we feel in the light of different
colours given to the arguments made before us that
it would be appropriate to make some further
comments.
The admitted facts are that the petitioner
and his ancestors originally belong to Dhanki, Tq.
Umarkhed, District Yavatmal. While the
petitioner s father was at Khamgaon for service,
the petitioner had obtained a Caste Certificate
dated 27th January, 1989 from the Executive
Magistrate, Khamgaon, and it was submitted for
obtaining a Validity Certificate as per the then
existing Govt. Resolutions. Litigation about
Halba, Halba Koshti, Halbi commenced in the Nagpur
Bench of the Bombay High Court on 4th September,
1985 when the Division Bench of this Court
delivered the Judgment in the case of Milind
Katware, that Halba Koshti is the sub-caste of
Halba/Halbi and is a Scheduled Tribe. The State
of Maharashtra filed Special Leave Petition No.
16372 of 1985, in which on 14th July, 1986, Supreme
Court granted leave and made an interim order that
Halba Koshtis will be entitled to admission to
the seats reserved for Scheduled Tribes. On 8th
January, 1988, thereafter when Milind Katware s
case came up for hearing, it was referred to the
Constitution Bench. Since the certificates were
being forwarded in large number to the Tribal
Research & Training Institute, Pune, for
verification, and since the Supreme Court had made
another order as above, the State of Maharashtra
issued a Govt. Resolution asking the Department to
issue Provisional Validity Certificates of Halba -
Scheduled Tribe, subject to the Constitution Bench
decision of the Apex Court. Accordingly, the
petitioner was also given a Conditional Validity
Certificate dated 30th June, 1990.
On 28th November, 2000, the Constitution
Bench decided Milind Katware s case, and held that
it is not open to hold that any caste/tribe not
mentioned in the Presidential Order is subtribe/
caste of the tribe Halba Koshti cannot be
treated as a sub-tribe of Halba/Halbi within the
meaning of Entry No.19 of the Order of 1950. On
18th October, 2001, State of Maharashtra issued a
Govt. Resolution to act upon the Constitution
Bench Judgment of the Supreme Court and to cancel
the Conditional Validity Certificates. Pausing
here, it would be necessary to refer to the
judicial and legislative history. In the year
1994, the Supreme Court decided the case of
Madhuri Patil, and after making a detailed survey,
rendered a studious judgment holding that there
was no proper, legal and correct methodology for
finding out the genuine scheduled tribes and,
therefore, the Supreme Court laid down several
parameters in Madhuri Patil [1] and Madhuri Patil
[2] for finding out the genuine scheduled tribes
for issuing Caste Validity Certificates of
Scheduled Tribes. It also held that the
adjudication, as required by the said Judgment of
the Supreme Court in Madhuri Patil s case, would
be the prerequisite for holding whether a person
is scheduled tribe or not. The State of
Maharashtra thereafter started following the
parameters laid down by the Apex Court in the case
of Madhuri Patil and asked the Committees to
decide the matters accordingly. This went on and
went on in the absence of any crystallized
legislation, and finally the State Legislature
passed Maharashtra Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes and Special Backward Category
(Regulation of Issuance & Verification of) Caste
Certificates Act, 2000 (Act No. 23 of 2001) and also
framed the Maharashtra Scheduled Tribes (Regulation of
Issuance & Verification of) Certificates Rules, 2003.
The Act came into force with effect from 18th October,
2001, while the Rules came into force with effect from
4th June, 2003. Now, testing the submission made by
Mr. Gangal, learned Counsel for the respondent no.1 in
the above factual background, it is clear that the
Conditional Validity dated 30th June, 1990 issued to
the petitioner by the Tribal Research and Training
Institute, Pune, was a mere Conditional Validity
dependent on the fate of the lis pending in the Supreme
Court. Can the principles of Res Judicata or rule of
estoppel have any application when the Validity
Certificate dated 30th June, 1990 was not treated as
final by the respondents themselves, but was treated
as conditional dependent on the result of the lis?
Our firm answer is No.
It is well known that the doctrine of res
judicata is codified in Section 11 of Code of Civil
Procedure. Section 11 generally comes into play in
relation to civil suits. But apart from the codified
law, in the light of principles of good conscience and
equity and as a public policy, the doctrine has been
applied in various other kinds of proceedings and
situations by Courts in India and other countries.
However, the first principle for its application is the
rule of conclusiveness of judgment or a finality
attached to it. An order made conditional on the fate
of the decision which would be pronounced by the Apex
Court cannot be called a conclusive or final. That
apart, it has not at all been proved that the
petitioner was, in fact, or by any presumption, served
with the cancellation order dated 15th March, 2004 till
he came across it recently and then has challenged it
by amendment. Admittedly, order dated 15th March, 2004
was passed without any notice to the petitioner and
must be held to be illegal.
Next, the rule of estoppel is based on the
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maxim allegans contractor non est audiendus i.e., a
party is not to be heard to allege the contrary. A
person cannot approbate and reprobate. In the case at
hand, the Tribal Institute/Committee itself
represented that the validity given to him was not
final and conclusive, but was dependent on something.
Hence he cannot be held guilty of the said vice.
The terra firma of the submissions made by the
respondent no.1, thus, does not exist in law and,
therefore, the the construction of the argument
thereon and then raising of Preliminary Objections
repeatedly, that too by the State of Maharashtra and
its instrumentalities is certainly in contravention of
the said principle, namely interest republicae ut sit
finislitum - it concerns the State that there should
be an end to lawsuits.
There is one more reason for rejecting the
submissions made by the Committee before us. The reason
is that the original place or native place of the
petitioner and his ancestors is not Khamgaon where from
the Certificate dated 27th January, 1989 was obtained,
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against which Conditional Validity Certificate dated
30th June, 1990 was issued by the Tribal Research &
Training Institute, Pune. On the contrary, it is an
admitted fact that the original place of residence of
the petitioner and his ancestors is Dhanki, Tq.
Umarkhed, Distt. Yavatmal. Therefore, a Certificate
issued by Executive Magistrate, Khamgaon, or the
Conditional Validity Certificate based on the said
Certificate, both do not have any significance or a
place in law. This is fortified by the provisions of
the Act and the Rules which clearly show that a person,
who claims a Caste Certificate for claiming the status
as a Scheduled Tribe must produce the Certificate from
the place of origin of himself and his ancestors and a
Certificate issued from some other place than the place
to which he originally belongs [unless specified
otherwise] is not a Certificate which can be examined
for issuance of Validity Certificate under the Act and
the Rules. Section 4 of the Maharashtra Scheduled
Castes, Scheduled Tribes, De-notified Tribes (Vimukta
Jatis), Nomadic Tribes, Other Backward Classes and
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Special Backward Category (Regulation of Issuance &
Verification of) Caste Certificates Act, 2000, reads as
follows:-
4. (1) The Competent Authority may,
on an application made to it under section
3, after satisfying itself about the
genuineness of the claim and following the
procedure as prescribed, issue a Caste
Certificate within such time limit and in
such form as may be prescribed or reject
the application for reasons to be recorded
in writing.
(2) A Caste Certificate issued by
any person, officer or authority other
than the Competent Authority shall be
invalid. The Caste Certificate issued by
the Competent Authority shall be valid
only subject to the verification and grant
of validity certificate by the Scrutiny
Committee.
Section 2 (b) of the said Act reads thus:-
2. In this Act, unless the context
otherwise requires,-
(a) ....
(b) Competent Authority means a officer
or authority authorised by the Government,
by notification in the Official Gazette,
to issue a Caste Certificate, for such
area or for such purposes as may be
specified in the said notification and
shall include all the Competent
Authorities already designated by the
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Government before the coming into force of
this Act, having jurisdiction over the
area or place to which the applicant
originally belongs, unless specified
otherwise;
The relevant Rules, namely Rules 3 (2) (c), 4
(1) (2), 12 (3) (4) and (5) of the Maharashtra
Scheduled Tribes (Regulation of Issuance & Verification
of) Certificates Rules, 2003, read thus:-
3. Procedure for obtaining Scheduled
tribe certificate from the Competent
Authority.
(2) The applicant shall file with
the application an affidavit in
Form A-1 duly sworn before the
authorised Officer or a Court,
mentioning,-
(a) ....
(b) ....
(c) the place from which he
originally hails:
4. Procedure to be followed by
Competent Authority for grant of
Certificate or rejection of
application for Scheduled Tribe
Certificate.
(1) The Competent Authority shall
have jurisdiction to issue
Scheduled Tribes Certificate in
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respect of an applicant who
himself or whose father/grand
father was ordinarily residing
within the territorial
jurisdiction of that Competent
Authority on the date of
notification of the
Presidential Order scheduling
that particular Tribe.
(2) In case the applicant or his
father/grand father was not
ordinary resident of any place
within the jurisdiction of that
Competent Authority, temporary
residence of applicant for the
purposes of service,
employment, education or
confinement in jail etc.,
within the territorial
jurisdiction of the Competent
Authority shall not confer
jurisdiction on that Competent
Authority to issue Scheduled
Tribe Certificate.
12. Procedure to be followed by Scrutiny
Committee.
(1) ...
(2) ...
(3) 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.
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(4) The Vigilance Officer shall
personally verify and collect
all the facts about the social
status claimed by the applicant
or his parents or the guardian,
as the case may be.
(5) The Vigilance Cell shall also
examine the parents or guardian
or the applicant for the
purpose of verification of
their Tribe, of the applicant.
The reason for insistence for a Caste Certificate of
the place of origin of the candidate or his father,
grand-father is that the claim for the status of
Backward Class can best be verified with reference to
documents and other evidences from such a place to
which he originally belongs. To repeat, the Certificate
dated 27th January, 1989 issued by the Executive
Magistrate, Khamgaon, and the conditional validity
dated 30th June, 1990 both become wholly irrelevant and
on the contrary, the Certificate obtained by the
petitioner for whatever reason on 2nd January, 2002
from the Sub-Divisional Officer,Pusad, within whose
jurisdiction the place to which the petitioner
originally belongs, namely village Dhanki, Tq.
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Umarkhed, Distt. Yavatmal falls, is the only relevant
certificate for examination of validity thereof. For
all these reasons, therefore, the various submissions
made by Mr. Gangal about the alleged conduct of the
petitioner in obtaining two certificates and deceiving
the Govt., or playing fraud on the Govt., or on the
Constitution or for suppression of facts must be
rejected which we do.
10. Having, thus, dealt with the aforesaid
preliminary matters, we now propose to examine the
validity of the impugned order made by the Caste
Scrutiny Committee. Before entering into the arena on
merits, we must carefully refer to the Judgment of the
Supreme Court in the present case which asked the
Committee, after making remand, to decide the case of
the petitioner again with reference to the specific
observations made by the Apex Court in its Judgment.
Upon reading of the Judgment dated 8th November, 2011
of the Apex Court by which the Committee was asked to
examine the matter, we had asked Mr. V.A. Gangal,
learned counsel for the respondent no.1 as to whether
the Committee could or even this Court can travel
beyond the findings recorded by the Apex Court on the
facts and material available on record of the case in
the absence of any specific liberty given by the Apex
Court to the Committee to go ahead on recording the
findings without being influenced by, or ignoring, any
findings on facts and material on record, Mr. Gangal,
learned counsel for the respondent no.1, fairly stated
that no such liberty was sought by the respondent no.1
before the Apex Court, nor the same was granted. It is
in this background now we advert to the decision of the
Supreme Court. The Supreme Court referred to the fact
in para 7 of its judgment that the petitioner was
claiming his status as Halbi Scheduled Tribe. In
para 8 then Supreme Court quoted the observations of
the High Court against which it was hearing the appeal,
and in para 9, it was stated that the High Court had
held that unless ethnic linkage with Scheduled Tribe
was established, the caste claim could not be accepted
merely on the strength of documentary evidence. The
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Supreme Court then examined the validity of the
proposition made by the High Court as aforesaid and in
para 17, referred to the observations in the cases of
Madhuri Patil vs. Commr. Tribal Development [ (1994) 6
SCC 241] and Director of Tribal Welfare, Govt. of A.P.
vs. Laveti Giri [(1995) 4 SCC 32], and in para 18, it
referred to the Maharashtra Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward
Category (Regulation of Issuance & Verification of)
Caste Certificates Act, 2000. In para 19 thereafter,
the Apex Court referred to Rules 11 (2), 12, and 12
(3), and thereafter in para 22, the Apex Court held
that it is manifest from the afore extracted paragraphs
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. Thereafter, the Supreme Court laid broad
parameters to be kept in view while dealing with the
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caste claim in the said paragraph 22. Now, in so far
as the case of the petitioner is concerned, the Apex
Court examined the documents which were on record and
recorded the following findings:-
24. Having examined the present case
on the touchstone of the aforesaid broad
parameters, we are of the opinion that the
claim of the appellant has not been
examined properly. We feel that the
documentary evidence produced by the
appellant in support of his claim had been
lightly brushed aside by the Vigilance
Officer as also by the Caste Scrutiny
Committee. Insofar as the High Court is
concerned, it has rejected the claim
solely on the basis of the affinity test.
It is pertinent to note that some of these
documents date back to the pre-
Independence era, issued to the
appellant s grandfather and thus, hold
great probative value as there can be no
reason for suppression of facts to claim a
non-existent benefit to the Halbi
Scheduled Tribe at that point of time.
25. From the documents produced by the
appellant, it appears that his near
paternal relatives had been regarded as
belonging to the Halbi Scheduled Tribe.
The Vigilance Officer s report does not
indicate that the documents produced by
the appellant in support of his claim are
false. It merely refers to the comments
made by the headmaster with reference to
the school records of the appellant s
father s maternal brother and his aunt,
which had been alleged to be tampered
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with, to change the entry from Koshti
Halba to Halba and nothing more. Neither
the headmaster was examined, nor any
further enquiry was conducted to verify
the veracity of the headmaster s
statement. It is of some importance to
note at this juncture that in similar
cases, involving the appellant s first
cousin and his paternal uncle, the High
Court, while observing non-application of
mind by the Caste Scrutiny Committee, had
decided a similar claim in their favour.
26. We are convinced that the
documentary evidence produced by the
appellant was not examined and appreciated
in its proper perspective and the High
Court laid undue stress on the affinity
test. Thus, the decision of the Caste
Scrutiny Committee to cancel and
confiscate the caste certificate as well
as the decision of the High Court,
affirming the said decision is untenable.
We are, therefore, of the opinion that the
claim of the appellant deserves to be reexamined
by the Caste Scrutiny Committee.
For the view we have taken on facts in
hand, we deem it unnecessary to refer to
the decisions cited at the Bar.
27. Resultantly, the appeal is
allowed; the decisions of the Caste
Scrutiny Committee and the High Court are
set aside and the case is remitted back to
the Caste Scrutiny Committee for fresh
consideration in accordance with the
relevant Rules and the aforesaid broad
guidelines. ...
11. After the remand order was made by the Apex
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Court as aforesaid, a fresh Vigilance Cell report was
called. But then the fresh Vigilance Report also did
not indicate that documents showing entry Halbi right
from 1899 produced by the petitioner in support of his
claim were false. The Vigilance Cell or the Committee
did not examine the Headmaster, nor did conduct any
further enquiry as observed in paragraph 25. Finally,
in paras 26 and 27, the Apex Court asked the Committee
to re-examine the petitioner s case for fresh
consideration. We have a serious doubt as to whether
the Committee could have endeavoured to overreach any
of the findings recorded by the Apex Court above in the
absence of liberty in the very same judgment to do so.
Assuming that there was any such liberty due to the
Apex Court saying that the matter should be reexamined,
we have carefully considered the reasons
given by the Scrutiny Committee under the impugned
order for consideration of the documentary evidence of
pre-independence period and we must express in clear
terms that the Scrutiny Committee has unnecessarily
rejected the voluminous documentary evidence which is
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of pre-independence era and which has not been found to
be be tampered or otherwise polluted even remotely.
The documentary evidence, that was seen by the Apex
Court, as mentioned in paragraph 25 of the Judgment and
the documentary evidence we have before us and seen by
us with the assistance of the learned counsel for the
parties is from the paternal side of the petitioner
right from the years 1899 and 1916, i.e., birth
extracts of sons born on 28th November, 1916, 5th
February, 1920 and in the year 1924 to Gangaram Katole,
Tq. Mahagaon, Distt. Yavatmal. These documents clearly
show the entry as Halbi and the Vigilance Cell has
not found the same to be tampered or doubtful. Not
only that there are other documents which were also
seen by the Apex Court and which we have carefully seen
immediately after 1950. The reason given by the
Committee for rejecting these old documents showing the
caste Halbi must be rejected outright. These are
eight documents pertaining to the pre-Independence
period, namely 4th November, 1924, 8th April, 1929, 20th
February, 1932, 21st June, 1933, 15th June, 1948, 7th
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October, 1948, 2nd July, 1949, 2nd July, 1949 and one
birth extract of sons born on 28th November, 1916 and
5th February, 1920 and above all, entry of August, 1899
in relation of Gangaram Halbi, with all entries showing
caste as Halbi. Can these documents not alleged to be
incorrect by the Vigilance Cell or even the Committee
be ignored? We say No. The reason given is they are
the residents of village Dhanki, while the area where
Halbis/Halbas were present does not mention village
Dhanki. It is stated in the impugned order that the
area of residence of Halba/Halbi Scheduled Tribe was
confined to Lohara, Yavatmal, Godani, Talegaon Bari,
Dhamani, Patsangra, Hatbapipri etc. Village Dhanki
also falls in Umarkhed Taluka of Yavatmal district.
The reason [Para 12 (b) and (c)] given in the order
that members of sub-caste Halba Koshti of Halbi caste
were residing earlier at Dhanki, Phulsawangi and,
therefore, the petitioner must be belonging to Halba
Koshti is baseless, wholly irrational and without any
material on record. At Sr. No. 523 on pages 557 (126)
and 556 (127), at Sr. No. 523, name of Gangadhar Satwa
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with caste Halbi and father s occupation is mentioned
as Weaver in the year 1899 and the entry on page 557
(126) is that he had undertaken the job as labour due
to drought. Similar is the case with Dhondu Laxman at
Sr. No. 530 with caste Halbi, but occupation Wesver.
But at Sr. No. 532, Narayan Fakira is Halbi , but
occupation is Patilki , i.e., Village Head having
lands. Looking to these entries for the year 1899 and
nearby years, we are afraid the finding that Weaving
is a taboo [prohibited by social system] among Halbas
Scheduled Tribe cannot be for sure correct. This is
supported by R.V. Russell in the Tribes and Castes of
the Central Provinces of India, Vol.III, Page-II, page
187, in the following extracted portion:-
.........The name Halba might be derived
from hal, a plough, and be a variant for
harwaha, the common term for a farmservant
in the norther Districts. This derivation
they give themselves in one of their
stories, saying that their first ancestor
was created from a sod of earth on the
plough of Balaram or Haldahra, the brother
of Krishna; and it has also the support of
Sir G. Grierson. The caste includes no
doubt a number of Gonds, Rawats (herdsmen)
and others, and it may be partly
occupational, consisting of persons
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employed as farm servants by the Hindu
settlers. The farmservant in Chhattisgarh
has a very definite position, his
engagement being permanent and his wages
consisting always in a fourth share of the
produce, which is divided among them when
several are employed. The caste have a
peculiar dialect of their own, which Dr.
Grierson describes as follows:
Linguistic evidence also points to the
fact that the Halbas are an aboriginal
tribe, who have adopted Hinduism and an
Aryan language. Their dialect is a curious
mixture of Uriya, Chhatisgarhi and
Marathi, the proportions varying according
to the locality. In Bhandara it is nearly
all Marathi, but in Bastar it is much more
mixed and has some forms which look like
Telugu. If the home of the Halbas was in
the debateable land between Chhatisgarh
and the Uriya country to the east and
south of the Mahanadi, their dialect
might, as Mr. Hira Lal points out, have
originated here. They themselves give the
ruined but once important city of Sihawa
on the banks of the Mahanadi in this tract
as that of their first settlement; and
Uriya is spoken to the east of Sihawa and
Marathi to the west, while Chhattisgarhi
is the language of the locality itself and
of the country extending north and south.
Subsequently the Halbas served as soldiers
in the armies of the Ratnapur kings and
their position no doubt considerably
improved, so that in Bastar they became an
important landholding caste. Some of
these soldiers may have migrated west and
taken service under the Gond Kings of
Chanda, and their descendants may now be
represented by the Bhandara zamindars,
who, however, if this theory be correct,
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have entirely forgotten their origin.
Others took up weaving and have become
amalgamated with the Koshti caste in
Bhandara and Berar.
There are additional documents dated 4th
November, 1924, 8th April, 1929, 20th February, 1932,
21st June, 1933, 15th June, 1948, sale-deed dated 7th
October, 1948, sale-deed dated 2nd July, 1949 and
another sale-deed dated 2nd July, 1949 all showing the
caste as Halbi.
12. After removal of the area restriction and
keeping in mind the fact about migration of the people
in large number, in our opinion, such a reason for
rejecting the caste claim as Scheduled Tribe in the
wake of very strong documentary evidence in the form of
pre-constitution documents dating back to the years
1899, 1916 showing the caste as Halbi would be
preposterous. By making references to report of J.V.
Ferreira Expert Committee Report and so on and so
forth, the Committee has made general observations and,
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therefore, we find that the reasons for rejecting the
important documentary evidence, which was also
considered by the Apex Court is perverse. Thus, the
documentary evidence pertaining to the pre-independence
period is so overwhelming that the Committee could not
have rejected the same in the manner that has been
done. We do not approve of the approach of the
Committee.
13. Having, thus, disposed of the issue about the
firm, sound and solid documentary evidence in favour of
the petitioner, we proceed to examine the reasons and
answers to the other issues about affinity test etc.,
recorded by the Committee in order to reject the caste
claim of the petitioner. At the outset, we find that
the Committee relied on the alleged statement of the
petitioner dated 22nd December, 1989, and also relied
on the comparative analysis for allegedly providing
different information and different statements from
20th October, 1989 till 26th November, 2012. We have
carefully perused the comparative analysis shown by the
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Committee in the impugned order. It is stated by the
Committee in the first place that the earlier statement
dated 22nd November, 1989 referred by the Committee is
of the petitioner. That is factually wrong, since that
statement is of his father and on left side, signatures
of the petitioner and one more person are seen. The
fact, however, remains that the statement is of his
father and not of the petitioner. The further statement
in the impugned order that petitioner s father s
statement and grand-father s statement were recorded
during the course of hearing is also wrong, because
petitioner s father and grand-father s statement were
never recorded during hearing by the committee either
after remand from the Apex Court or before it. Thus,
at one place the Committee says that the statement of
the petitioner was recorded on 22nd November, 1989,
while it is stated that during the course of hearing,
his father s and grand-father s statements were
recorded. In fact, the father and grand-father were
never examined by the Committee as stated. Perusal of
the record shows that there is a statement of the
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father of the petitioner recorded on 22nd November,
1989, i.e., prior to remand in the initial stages and
the said statement does not show any serious deviation
from the affinities of the tribe Halba as stated in the
reasons part of the order. The Committee has, thus,
made a total confusion as to evidence for rejecting the
claim on the affinity test. It clearly appears from
the record that after remand, the Vigilance Cell
collected documents, recorded statements of petitioner
on 21st December, 2011, Revati Bakde on 18th February,
2012, joint statement of petitioner and his father
Nilkanth on 26th November, 2012, Vatsalabai Parate and
Arun Katde on 5th December, 2012. But all these
statements appeared to be of no significance to the
Committee on the affinity test. The Committee has given
general reasons by reading something about the
statement dated 22nd November, 1989 which is also
wrongly ascribed to the petitioner. This clearly shows
that the Committee did not seriously and carefully
apply its mind as to whose statement it was, i.e., the
one dated 22nd November, 1989 and by recording that it
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was of the petitioner, it made a factual error. We,
thus, find that the Committee has given undue and
unnecessary importance to the wrong facts to conclude
that the affinity test was not proved by the
petitioner. It is true that the burden of proof would
be on the petitioner. Even assuming that the father of
the petitioner in his statement dated 22nd November,
1989 expressed one or the other discrepant or nonexisting
traits, the question is while deciding the
claim in the wake of overwhelming, undoubted,
infallible pre-independence documentary evidence right
from 1899, 1916 showing the caste as Halbi , upon
keeping in mind the concept of preponderance of
probabilities and preference to the documentary
evidence as compared to oral evidence, should the caste
claim be rejected outright? We do not think so. The
duty of the Committee would be to have all types of
evidences in juxtaposition and take a prudent, unbiased
view to come to a conclusion. In the instant case, as
observed by the Apex Court and by us as well,
petitioner produced overwhelming documentary evidence
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on record from his paternal side to prove that he
belongs to Halbi Scheduled Tribe.
14. It is now interesting to consider the
enthusiasm of the Vigilance Cell and the Committee.
The Vigilance Cell and the Committee picked up a thread
from the statement of the petitioner that the
petitioner s family members or the petitioner himself
did not have any inter-caste marriage. With this
preface, the Vigilance Cell as well as the Committee
went out to find out the documentary evidence in
respect of the grand-mother, mother and the wife of the
petitioner and a 2011 booklet of Kosti Samaj about
which petitioner was not confronted. Having collected
those documents, the Vigilance Cell as well as the
Committee found that those documents indicated the
caste of the wife of the petitioner and the other
maternal side relatives of the petitioner as Koshti.
On this background, the Committee went ahead and held
that these documents clearly outweigh the claim of the
petitioner that he belongs to Halbi Scheduled Tribe
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and that is, in fact, the justification which has been
also given in the Affidavit-in-Reply by the respondent
no.1.
15. It is a trite law that in a patriarchal
society, caste is determined by the caste of the
father. Obviously, therefore, the enquiry into the
candidate s caste can best be made by examining the
father or others from the paternal side, such as uncles
etc. This view was taken by the Division Bench of this
Court in Heera Shalikram Mundharikar Vs. Scheduled
Tribe Caste Certificate Scrutiny Committee & others
[2010 (6) Mh.L.J. 274] with the following
observations:-
4. ..................................
.........According to the learned Counsel
for the petitioner, there was no reason
why the Vigilance Cell and the Caste
Scrutiny Committee overlooked examining
her father. The learned Counsel also
relied on sub-rule (5) of Rule 12 of the
Maharashtra Scheduled Tribes (Regulation
of Issuance and Verification of)
Certificate Rules, 2003 which reads as
follows:-
(5) The Vigilance Cell shall
also examine the parents or
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guardian or the applicant for
the purpose of verification of
their Tribe, of the applicant.
We find that the order of the Scrutiny
Committee is vitiated due to noncompliance
of sub-rule (5) of Rule 12.
The Rule requires the Vigilance Cell to
examine the parents or guardians of the
applicant. The word Parents implies both
the father and the mother. The need for
examining the father as well as the mother
cannot be undermined in a case of this
nature. It is well-known that in a
patriarchal society, caste is determined
by the caste of the father. An enquiry
into the candidate s caste can be best
made by examining the father or others on
the paternal side, such as uncles. We do
not see how it is possible to produce a
correct result in scrutiny without
examining the father or such other
relatives on the paternal side as are
available. We accordingly hold that subrule
(5) of Rule 12 which requires the
Vigilance Cell to submit a report only
after examining both the parents is
mandatory. We, therefore, hold that the
Vigilance Cell has acted contrary to the
Rules in holding the enquiry and
submitting the report. ...
We respectfully follow the said view. In fact, Mr.
Gangal, learned counsel for the respondent-Committee
fairly stated that in India, the caste is determined on
the basis of the caste of the father. But then the
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explanation tendered by Mr. Gangal on the above aspect
is that the Vigilance Cell as well as the Committee
went to find out the documents from the maternal side
of the petitioner, because he stated that no intercaste
marriage was performed by him or any of his relatives
and that was the only reason for undertaking the
exercise. We are astonished at the way the Vigilance
Cell and the Caste Scrutiny Committee conducted itself
when determination of caste on the basis of the
documents of the maternal relatives, i.e., mother,
grand-mother or the wife of the petitioner. A three-
Judge Bench of the Supreme Court in Shobha Hymavathi
Dev Vs. Setti Gangadhara Swamy & others [(2005) 2 SCC
244] relied upon the Division Bench Judgment in the
case of Valsamma Paul (Mrs.) Vs. Cochin University &
others [(1996) 3 SCC 545] rendered by the Supreme
Court while dealing with the claim for backward class
when made upon marriage/intercaste marriage, in which
it observed thus:-
30. It would thus be seen that the
institution of marriage is one of the
sound social institutions to bring harmony
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and integration in social fabric. The
Shastric law among Hindus has undergone
sea change, in the rigidity of Shastric
prescriptions. In relation to intestate
succession of property, marriage, adoption
and maintenance amongst Hindus, they are
brought under statutory operation
appropriately underpinning the rigid
Shastric prohibitions, restrictions to
operate in harmony with the Universal
Declaration of Human Rights and
Constitutional Rights. The right to
divorce which is unknown to Hindu law is
made feasible and an irretrievable
breakdown of the marriage is made a ground
so as to enable the couple to seek divorce
by mutual consent. The Hindu Marriage
Act, 1956 and Special Marriage Act, 1954
made the marriage between persons
belonging to different castes and
religions as valid marriage. Even local
amendments in Section 7-A to the Hindu
Marriage Act, 1956 like in Tamil Nadu,
removed the rigidity of celebrating the
marriages in accordance with Shastric
prescription like Kanyadan and Saptapadhi
being not mandatory, recognized social
marriage as valid. Right to maintenance
from the divorced husband is provided
under the Hindu Adoption and Maintenance
Act, 1956 and Section 125 of the Code of
Criminal Procedure, 1973 so long as she
remains unmarried. Under Hindu Minority
and Maintenance Act, she is entitled to
maintenance from father-in-law. Similar
gender equality is available to other
citizens consistent with human rights and
under Article 15 (3) of the Constitution.
The march of law lays emphasis on the
rights of the individual for equality.
The form of marriages is relegated to back
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door as unessential. These are matters of
belief and practice and not core content.
Trying Tali is a must and without it
marriage is not complete in South India
among all Hindus and in some parts among
Harijan Christians, while exchange of
rings would do in North India.
Ritualistic celebration of marriage would
be considered by some as valid, while most
people in other sections think that factum
of marriage is enough. When in Tamil Nadu
such marriage is statutorily valid, would
it become invalid in other parts of the
country? The answer would, obviously and
emphatically be, NO . Inter-caste
marriages and adoption are two important
social institutions through which
secularism would find its fruitful and
solid base for an egalitarian social order
under the Constitution. Therefore, due
recognition should be accorded for social
mobility and integration and accordingly
its recognition must be upheld as valid
law.
31. It is well-settled law from
Bhoobum Moyee Debia v. Ram Kishore Acharj
Chowdhry that judiciary recognized a
century and a half ago that a husband and
wife are one under Hindu law, and so long
as the wife survives, she is half of the
husband. She is Sapinda of her husband
as held in Lulloobhoy Bappoobhoy Cassidass
Moolchand v. Cassibai. It would,
therefore, be clear that be it either
under the Canon law or the Hindu law, on
marriage the wife becomes an integral part
of husband s marital home entitled to
equal status of husband as a member of the
family. Therefore, the lady, on marriage,
becomes a member of the family and thereby
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she becomes a member of the caste to which
she moved. The caste rigidity breaks down
and would stand no impediment to her
becoming a member of the family to which
the husband belongs and she gets herself
transplanted.
32. The immediate question arises :
Whether recognition of the community is a
pre-condition? Though it was consistently
held that recognition is a circumstance to
be taken into consideration, marriage,
being personal right of the spouses they
are entitled to live, after marriage,
openly to the knowledge all the members of
the community or locality in which they
live and by such living they acquire
married status. In the light of the
constitutional philosophy of social
integrity and national unity, right to
equality assured by the human rights and
the Constitution of India, on marriage of
a man and a woman, they become members of
the family and are entitled to the social
status as married couple recognition per
se is not a pre-condition but entitled to
be considered, when evidence is available.
It is common knowledge that with education
or advance of economic status, young men
and women marry against the wishes of
parents and in many a case consent or
recognition would scarcely be given by
either or both the parties or parents of
both spouses. Recognition by family or
community is not a pre-condition for
married status.
Thereafter, in a concurring judgment
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separately written by S.B. Sinha, J. in the case of
Punit Rai Vs. Dinesh Chaudhary [(2003) 8 SCC 204],
paras 26 to 36 and para 41 said thus:-
26. Caste has been defined in Collins
English Dictionary as any of the four
major hereditary classes, namely, the
Brahman, Kshatriya, Vaisya and Sudra into
which Hindu societiy is divided .
27. The caste system in India is
ingrained in the Indian mind. A person,
in the absence of any statutory law, would
inherit his caste from his father and not
his mother even in a case of intercaste
marriage.
28. In The Caste System in India
Myth and Reality by Dr. Rajendra Pandey,
the different attributes of the caste as
unit mentioned by various writers has been
stated thus :
1. Basic (pivotal) attribute :
Endogamy.
2. Sufficiently relevant
attributes:
(i) Membership by birth.
(ii) Common occupation.
(iii)Caste Council.
3. Peripheral attributes:
(i) Name.
(ii) Diacritical signs.
Following the same pattern of
attribute hierarchy, the attributes that
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characterize caste as system have been
drawn up and set in as follows:
1. Basic attribute : Plurality of
interacting endogamous groups.
2. Sufficiently relevant attribute :
Hierarchy.
3. Peripheral attribute : Traditional
division of labour.
Besides these, Ghurye among others,
has also mentioned segmental division of
society, hierarchy, restriction on feeding
and social intercourse, and civil and
religious disabilities and privileges of
the different sections as characteristics
of the caste. Above them all, Nagendra
has made mention of the principle of
individual freedom as one of the
attributes of the caste, which seems to
have been omitted by most of the authors.
In summary, then, hierarchy,
restricted commensality and connubiality,
hereditary occupation and a clear-cut
differentiation of functions, ritual
observance, and the principle of
individual freedom are characteristics of
the caste system till today.
29. In Caste in Modern India and other
Essays by M.N. Srinivas at p.3, it is
stated :
A sociologist would define
caste as a hereditary,
endogamous, usually localized
group, having a traditional
association with an occupation,
and a particular position in the
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local hierarchy of castes.
Relations between castes are
governed, among other things by
the concepts of pollution and
purity, and generally, maximum
commensality occurs within the
caste.
30. In Caste and the Law in India by
Justice S.B. Wad at p.30 under the heading
Sociological Implications , it is
stated :
Traditionally, a person
belongs to a caste in which he
is born. The caste of the
parents determines his caste but
in case of reconversion a person
has the liberty to renounce his
casteless status and voluntarily
accept his original caste. His
caste status at birth is not
immutable. Change of religion
does not necessarily mean loss
of caste. If the original caste
does not positively disapprove,
the acceptance of the caste can
be presumed. Such acceptance can
also be presumed if he is
elected by a majority to a
reserved seat. Although it
appears that some dent is made
in the classical concept of
caste, it may be noticed that
the principle that caste is
created by birth is not
dethroned. There is also a
judicial recognition of caste
autonomy including the right to
outcaste a person.
31. If he is considered to be a
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member of the Scheduled Caste, he has
to be accepted by the community. (See
C.M. Arumugam v. S. Rajgopal and
Principal, Guyntur Medical College v.
Y. Mohan Rao).
32. A Christian by birth when
converted to Hinduism and married a
member of the Scheduled Caste was held
to be belonging to her husband s caste
on the evidence that she had not only
been accepted but also welcomed by the
important members, including the
President and Vice-President of the
community. (See Kailash Sonkar v. Maya
Devi).
33. In the instant case there is
nothing on record to show that the
respondent has ever been treated to be
a member of the Scheduled Caste. In
fact evidence suggests that he has not
been so treated. He as well as his
brothers and other members of his
family are married to persons belonging
to his own caste i.e. Kurmi .
34. There was no attempt on the part
of the respondent herein to bring on
record any material to the effect that
he was treated as a member of the
Pasi community. Furthermore, no
evidence has been brought on record to
show that the family of the respondent
had adopted and had been practising the
customary traits and tenets of the
Pasi community.
35. The question as to whether a
person belongs to a particular caste or
not has to be determined by the
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statutory authorities specified
therefor.
36. In B. Basavalingappa v. D.
Munichinnappa a Constitution Bench of
this Court considered the scope of
Articles 341 (1) and (2) [which is in
pari materia with Articles 342 (1) and
(2)], and held it is not open to any
person to lead evidence to establish
that the caste to which he belongs to
is the same as and/or part of another
caste, which is included in the
Constitution (Scheduled Castes) Order.
It was observed : (AIR p. 1271, para 6)
6.It may be accepted that it
is not open to make any
modification in the Order by
producing evidence to show
(for example) that though
caste A alone is mentioned in
the Order, caste B is also a
part of caste A and,
therefore, must be deemed to
be included in caste A. It
may also be accepted that
wherever one caste has another
name it has been mentioned in
brackets after it in the order
: [See Aray (Mala), Dakkal
(Dokkalwar) etc.] Therefore,
generally speaking it would
not be open to any person to
lead evidence to establish
that caste B (in the example
quoted above) is part of caste
A notified in the order.
41. Determination of caste of a
person is governed by the customary
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laws. A person under the customary
Hindu law would be inheriting his caste
from his father. In this case, it is
not denied or disputed that the
respondent s father belonged to a
Kurmi caste. He was, therefore, not
a member of the Scheduled Caste. The
caste of the father, therefore, will be
the determinative factor in absence of
any law. ...
It is, thus, clear that in the customary Hindu
law, a person, in the absence of any statutory law,
would inherit his caste from father and not from his
mother, even in case of intercaste marriage. We are
fortified by the aforesaid Judgments of the Apex Court
that the documents from the maternal relatives, i.e.,
mother, grand-mother or the wife of the petitioner,
were not determinative of the caste status of the
petitioner.
The documents from the side of the father of
the petitioner right from 1899, 1916 consistently
indicated the caste as Halbi which is Scheduled
Tribe. There is not a single document from the
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paternal side of the petitioner contradicting the said
documentary evidence, or indicating any mixture of
caste Halba or Koshti, or as the case may be. The
Vigilance Cell as well as the Committee, thus, went
tangent by resorting to the collection of documentary
evidence from the side of the wife or the maternal side
of the petitioner, resulting into a futile exercise not
acceptable in law, since what is relevant is the caste
derived by a son from his father and ancestors from the
paternal side. The Act of 2000 and the Rules framed
thereunder also amplify the aforesaid legal position
and we must respect and applaud the wisdom of the
Legislature in enacting so. The following Rules
clearly indicate the position that what is relevant is
the paternal side and not the maternal side:-
2. Definitions .
(f) Relative means a blood
relative from paternal
side of the applicant;
3. Procedure for obtaining Scheduled
tribe certificate from the Competent
Authority.
(3) The applicant shall furnish the
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attested copies of the following
documents with his application for
obtaining the Scheduled Tribe
Certificate and shall produce the
originals thereof, on demand, by the
Competent Authority:-
(a) (i) Extract of the Birth
Register in respect of
applicant, his father or
elderly relatives from
paternal side;
(ii) extract of the Primary
School Admission Register
of the applicant, his
father or grand father, if
available; and
(iii)Primary School leave
certificate of the
applicant and his father;
Perusal of the above clearly shows the scheme of the
act and the Rules that what is relevant is the
documentary evidence from the paternal relatives or
paternal side. We, therefore, do not approve of the
Vigilance Cell as well as the Committee in collecting
documents from the maternal side or the documents from
the side of the wife, merely because a statement was
made that there are no intercaste marriages in the
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family. The Committee is under an obligation and has a
duty to act according to law and follow the rule of
law. It cannot divest itself from its original
function of finding out the caste as ordained by law.
However, in the instant case, it went tangent and
collected irrelevant evidence somehow to repel the case
of the petitioner or the documentary evidence
establishing the case of the petitioner from paternal
side.
In para 15 (d) of the impugned order, the
Committee has stated that petitioner relied on Caste
Certificates and Validity Certificates of relations,
and that they show the caste as Koshti . The document
at Sr. No. (v) of 18th August, 1899 [Gangaram] was
relied by the petitioner about which we have already
made the discussion, but the documents (i) to (iv) or
the persons named against them are not the relatives of
the petitioner, nor he filed those documents. This is
clear from the following portion at page 15 of the
petition, and those averments are not denied in para 34
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at page 556 which is the Affidavit-in-Reply of
Respondent No.1 :-
20. ..................................
........Further, the respondent no.1
Committee has referred to certain caste
certificates/validity certificates
alleging that they are the relatives of
the petitioner and are Koshti by caste and
their traditional occupation is
Vinkari/weaving. In this behalf, the
petitioner submits that firstly, the
documents mentioned at Sr. No. (i), (ii) &
(iv) are not supplied to the petitioner.
Moreover, those persons are not related to
the petitioner. As regards the document
at Sr. No. (iii) though copy of this
document is supplied to the petitioner,
the name of the said gentleman does not
appear in family tree disclosed by
petitioner and his father. As regards the
document at Sr. No. (v) which is the
document written in modilipi, the caste of
great grandfather of the petitioner has
been clearly recorded as Halbi and,
therefore, merely because his occupation
is recorded as Vinkari , it is wholly
erroneous on the part of the respondent
no.1 Committee to hold that the
petitioner does not belong to Halbi
Scheduled Tribe. ....
It clearly appears that the Committee went by
the same surname Katole in these documents, without
asking the petitioner to confront or contradict those
persons or supplying related documents to him. Common
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surnames cannot be determinative in such matters.
16. The next question is about the blood relatives
having been issued Caste Validity Certificates and the
legal position thereabout. Rajeshwar is the real
brother of the father of the petitioner. The Committee
has issued a Caste Validity Certificate to the daughter
of Rajeshwar, namely Rupali Rajeshwar Katole as Halba
vide Sr. No. 098637 dated 27th June, 2008. The
Certificate is produced at Annexure-16-G with the
petition. It is not in dispute that no appeal has been
filed by the Committee or the State against the
decision dated 18th February, 2008 in Writ Petition No.
2053 of 2007 till this date; but the Validity
Certificate was issued. In view of the fact that in
the case of Rupali, the Judgment was rendered on 18th
February, 2008 and yet it has not been put to challenge
and on the contrary the Validity Certificate was issued
in her favour, we should have no difficulty in holding
that the said decision has become final and conclusive.
Rupali, who is the blood relative of the petitioner,
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has been recognized as Scheduled Tribe by the Committee
itself. The submission by Mr. Gangal that Rupali s
decision made by this Court was based on a special
concession given by the Govt. Pleader in the case of
Ramchandra Katole, other brother of the father of the
petitioner, does not appeal to us. The reason is that
in the said Judgment, this Court, after referring to
the concession given by the learned Govt. Pleader in
respect of Ramchandra, made the following observations
in the said judgment of Rupali:-
It is apparent from the above long
order that has been passed by Scrutiny
Committee, the documents at serial nos.
14, 18 to 21 and the High Court orders
which were passed on concession of the
respondent and their active stand that
they wish to withdraw the order cancelling
the certificate issued in favour of the
petitioner and/or uncle of the petitioner,
this apparently shows non-application of
mind. Once the authorities choose to
withdraw their orders without any
qualification or condition, they must bear
the consequences arising from such
withdrawal of the concession. The State
or the Committee is not expected to act in
a arbitrary manner and keep on taking
inconsistent stands, one after the other.
Fairness in State action is expected and
every State action should be free of
arbitrariness or discrimination. They have
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opted to create an anomalous situation,
inasmuch as the father of the petitioner
even as on today as per the orders of the
Courts is a person belonging to Halba
tribe while the daughter would lose that
character despite being that she is still
unmarried and lives with her family.
This Court criticized the inconsistent stand or
creation of anomalous situation between the blood
relatives and the Committee having acceded to the said
position till date, we do not find any merit in the
submission made by the learned counsel for the
respondent no.1.
17. In so far as the case of Vikram Ramchandra
Katole, the other cousin of the petitioner, is
concerned, we find that in Writ Petition No. 4016 of
2010, by order dated 4th March, 2011, the Judgment of
this Court followed the decision in the case of
Apoorva Vinay Nichale Vs. Divisional Caste Certificate
Scrutiny Committee No.1 & others [2010(6) Mh.L.J. 401]
and held that the blood relatives cannot be given
different treatment when one of them got the Caste
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Validity Certificate unless case of want of
jurisdiction or playing of fraud is established. At
this stage, we would like to quote the following
observations from the decision in the case of Apoorva:-
5. The Division Bench of this Court in
Mahesh Pralhadrao Lad vs. State of
Maharashtra, 2009 (2) Mh.L.J. 90 has
observed that in the absence of any power
under the Rules conferred on the
Government to issue a Govt. Resolution,
the Govt. Resolution cannot be said to be
binding on the committee nor the committee
in exercise of its jurisdiction is bound
to follow the same. The Division Bench
further observed that the Government
Resolution may be considered in the
context of Rule 12 of the Rules and if the
committee while exercising jurisdiction is
satisfied that the caste validity
certificate issued to a blood relative is
genuine then instead of calling the
Vigilance Cell Report it may proceed to
issue the caste validity certificate. We
are in respectful agreement with the view
taken by the Division Bench. We would
further add that the committee would be
entitled to refuse to follow the caste
validity certificate granted to a blood
relative if it appears to the committee
that the earlier caste certificate has
been scrutinized by a Committee without
jurisdiction or the validity order is
obtained by committing fraud on the
Committee.
9. In the present case, we find that the
committee has disbelieved the petitioner s
case that she belongs to Kanjar Bhat after
calling the school leaving certificate of
petitioner s father and noticing that the
original caste written on it was Thakur
and that was subsequently changed to
Kanjar Bhat. The Committee observed that
the caste has been changed without
complying with the procedure prescribed by
section 48 (e) and 132 (3) of Mumbai
Primary Education Act. In fact, the caste
has been changed on the basis of the
affidavit. From the findings of the
committee it appears that the committee
has observed that the change of caste has
been done illegally. Obviously, the
committee which decided the caste claim of
the petitioner s sister did not hold the
same view, otherwise it would have refused
to grant validity. In the circumstances,
we are of the view that the committee
which has expressed a doubt about the
validity of caste claim of the petitioner
and has described it as a mistake in its
order, ought not to have arrived at a
different conclusion. The matters
pertaining to validity of caste have a
great impact on the candidate as well as
on the future generations in many matters
varying from marriage to education and
enjoyment, and therefore where committee
has given a finding about the validity of
the caste of a candidate another committee
ought not to refuse the same status to a
blood relative who applies. A merely
different view on the same facts would not
entitle the committee dealing with the
subsequent caste claim to reject it.
There is, however, no doubt as observed by
us earlier that if a committee is of the
view that the earlier certificate is
obtained by fraud it would not be bound to
follow the earlier caste validity
certificate and is entitled to refuse the
caste claim and also addition initiate
proceedings for cancellation of the
earlier order. In this view view of the
matter, we are of the view that the
petition must succeed. Rule is made
absolute in above terms. The Caste
Scrutiny Committee is directed to furnish
caste validity certificate to the
petitioner.
The Committee accordingly issued Validity Certificate
to Vikram as well. The counsel for the respondent no.1
at the bar did not advance any case on behalf of
respondent-Committee about fraud or the jurisdictional
error of the then Committee in the matter of grant of
validity to Rupali and Vikram who are the blood
relatives of the petitioner. Therefore, in the light of
the view taken by this Court as above in the case of
Apoorva, we have no hesitation in holding that the
petitioner cannot be differently treated or no
different yardstick can be applied otherwise than in
the cases of Rupali and Vikram, apart from the fact
that independently as discussed by us above, the
petitioner proved on the basis of voluminous
documentary evidence on record that he is Halbi
Scheduled Tribe. We, therefore, hold that the decision
of the Committee not to apply the blood relationship
principle about issuance of Validity Certificate in the
instant case for the reasons given by us above is
wholly illegal. The submission that the Certificates
were obtained on the strength of concession given by
the Govt. Pleader in the case of Ramchandra Katole must
be, in the light of the above discussion, held to be
unacceptable by virtue of the own conduct of the
Committee. The consequences of declaring a blood
relative as Scheduled Tribe and another blood relative
as non-Scheduled Tribe are far serious and as held in
the case of Apoorva, such a course cannot be and should
not be adopted by the Committee unless there are well
recognized reasons like fraud, misrepresentation, lack
of jurisdiction, against the public policy and so on
and so forth. But on those aspects, no material has
been shown to us, nor it is even the case of the
respondents. To sum up, we declare that the petitioner
belongs to Halbi which is a Scheduled Tribe.
18. In view of the detailed discussion made by us
above, we are of the view that the other submissions or
other various decision cited before us by the counsel
for the parties need not be referred to.
19. The upshot of the above discussion that we
must make the following order:-
O R D E R
[i] Writ Petition No. 2512 of 2013 is allowed.
[ii] Rule is made absolute in terms of Prayer
Clause [1] of the petition so also amended
prayer clause in prayer clause [1].
[iii] The respondent no.1-Committee shall issue
Validity Certificate to the petitioner,
within a period of three months from
today.
20. In the circumstances of the case, no order
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