Kanchan D/O Sambhaji Kolgane Through Father And Guardian Sambhaji S/O Baburao Kolgane v. The State Of Maharashtra Through Secretary
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9023 OF 2019 Komal D/o Purbhaji Kolgane ..Petitioner Vs.
The State of Maharashtra through Secretary & Ors.
..Respondents WITH WRIT PETITION NO.9044 OF 2019 Kanchan D/o Sambhaji Kolgane ..Petitioner Vs.
The State of Maharashtra through Secretary & Ors.
..Respondents ----- Mr.Sunil Vibhute for Petitioner.
Mr.A.A. Kumbhakoni, Advocate General with Mr.P.P. Kakade, Government Pleader with Mr.Umesh Mankapure, Counsel 'A' Panel for State.
----- CORAM :
NITIN W. SAMBRE AND G.S. KULKARNI, JJ.
DATE :
20th AUGUST, 2019 P.C.:
With consent of the parties, heard finally and disposed of. 2.
By these Petitions under Article 226 of the Constitution of India, the Petitioners have assailed the order dated 30th July, 2019 passed by the Scheduled Tribe Caste Certificate Verification Committee, Aurangabad (Respondent No.2) in short "the Committee" whereby the Petitioners' claim for Tribe validation as belonging to 'Mannervarlu', Scheduled Tribe, has been rejected.
3.
The grievance of the Petitioners is, though Caste Validity Certificates granted on 10 July 2008 and 31 August 2007 by the Committee in favour of Sambha Baburao Kolgane, father of the petitioner-Kanchan (W.P. No.9044 of 2019) who is uncle of other petitioner-Komal (W.P. No.9023 of 2019) and also their cousin brother Radhesham Kolgane from paternal side were relied upon, the Committee has discarded the same on the ground that the same would not be conclusive proof and would not absolve the Petitioners from discharging the burden of the production of the relevant evidence. The Committee also took a view that the validity certificates have been granted to Sambha Baburao Kolgane and Radhesham Asaram Kolgane without taking into account the interpolations/adverse entries in the documents, on which reliance was placed at the time of issuance of those validity certificates by its holders. It is stated by the Respondents-State that appropriate show cause notices have already been issued to these caste validity certificate holders. 4.
According to the learned counsel appearing for Petitioners, the decision of the Committee runs contrary to the Division Bench judgment of this Court in the case of Apoorva Vinay Nichale v/s Divisional Caste Certificate Scrutiny Committee No.1 and others1, which was based 2010(6) Mh. L.J. 401
upon the Supreme Court judgment passed in the case of Raju Ramsing Vasave v/s Mahesh Deorao Bhivapurkar and others2. So also the in the case of Anand vs. Committee for Scrutiny and Verification of Tribe Claims and Others3.
5.
The Division Bench in the case of Apoorva Vinay Nichale (supra) in Paragraph Nos.7 and 9 observed thus :
"7. We thus come to the conclusion that when during the course of enquiry the candidate submits a caste validity certificate granted earlier certifying that a blood relation of the candidate belongs to the same caste as that claimed by the applicant, the committee may grant such certificate without calling for Vigilance Cell Report. However, if the committee finds that the earlier caste certificate is tainted by fraud or is granted without jurisdiction, the Committee may refuse to follow and may refuse to grant certificate to the applicant before it.
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 (2008) 9 SCC 54 (2012) 1 SCC 113
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 a 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 cast 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 in addition initiate proceedings for cancellation of the earlier order. In this 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 the caste validity certificate to the Petitioner."
6.
The learned Government Pleader submits that since some interpolation is noticed in the school record of Sambha Baburao Kolgane, father of the petitioner-Kanchan (W.P. No.9044 of 2019) who is uncle of other petitioner-Komal (W.P. No.9023 of 2019) and also their cousin brother Radhesham Asaram Kolgane from paternal side, the Committee has issued show cause notice to them. We find that the Committee has not recorded specific findings as regard possibility of some interpolation. Be that as it may, we have noticed that Sambha Baburao Kolgane, father of the petitioner-Kanchan (W.P. No.9044 of 2019) who is uncle of other petitioner-Komal (W.P. No.9023 of 2019)
and also their cousin brother Radhesham Asaram Kolgane from paternal side have already been granted caste validity certificates. Thus in our considered view, the reason assigned by the Committee for rejection of the Petitioner's claim cannot be sustained as it runs contrary to the view taken by the Division Bench of this Court in the case of Apoorva Vinay Nichale (supra).
7.
In the circumstances, in the light of the judgment in the case of law laid down in the cases of Apoorva Nichale, Anand vs. Committee and Raju Ramsing Vasave (supra), the Petitioners are entitled to be granted caste validity certificates forthwith. However, the issuance of the certificates shall be subject to the outcome of the show cause notices which have been issued against Sambha Baburao Kolgane, father of the petitioner-Kanchan (W.P. No.9044 of 2019) who is uncle of other petitioner-Komal (W.P. No.9023 of 2019) and also their cousin brother Radhesham Kolgane from paternal side by the Committee as the caste validity certificates issued are found to be based on interpolation/ adverse entries.
8.
In view of above, the Committee is directed to issue Tribe validity certificates to the Petitioners forthwith. As the Committee has already initiated proceeding for cancellation of validity issued to the blood relations of the Petitioners, in response to the Courts query, it is assured
by the Committee that the Committee will conclude those proceeding within a period of six months from the date of receipt of copy of this order. If the proceeding for cancellation of caste validity holders is answered against such certificate holders, it shall be open for the Respondent Committee to issue show cause notice to the Petitioners as to why the validity certificate granted to the petitioners should not be cancelled and it will be open for the Committee to take those proceeding to its logical end. Needless to say that the certificates issued to the Petitioners are subject to the outcome of the proceeding for cancellation of validity issued in favour of their blood relations. 9.
With the aforesaid observation, the Petitions are partly allowed to the extent indicated above.
[G.S. KULKARNI, J.] [NITIN W. SAMBRE, J.]