Dismissed

Vaishali Atmaram Suryawanshi v. the State of Mah and Ors.

Bombay HC19 Oct 2013WP/3128/2010

Case brief

AI extract

What is this about?

This judgment dismisses a writ petition challenging the invalidation of an applicant's Scheduled Tribe caste claim. The High Court held that the Scrutiny Committee validly applied the affinity test and did not commit perversity, as the petitioner failed to establish prejudice from the non-recording of her mother's statement and fully substantiated her claim under the relevant Act.

What did the court decide?

Rule discharged; writ petition dismissed with no costs.

Vaishali Atmaram Suryawanshi Vs the… — Constitutional and Fundamental Rights | Bombay HC (2013)

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Writ Petition No. 3128 of 2010

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Ku. Vaishali d/o. Atmaram Suryawanshi, Age : 27 years, Occupation : Education, R/o. Hirtma, 1-A, Auditor Colony, Pimprala, Taluka & District : Jalgaon. .. Petitioner.

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versus

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The State of Maharashtra, Through its Secretary, Tribal Development Department, Mantralaya, Mumbai - 32.

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The Committee for Scrutiny And Verification of Tribe Claims, Nandurbar Division, Nandurbar, District : Nandurbar.

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The Accident Claims Tribunal through its Registrar, Hazarimal Somani Marg, Mumbai - 400 001.

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.. Respondents.

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Mr. S.B. Talekar, Advocate, with Mr. M.S. Nilwant, Advocate, for the petitioner.

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Mr. S.K. Tambe, Assistant Government Pleader, for respondent no.1.

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Mr. P.S. Patil, Advocate, for respondent no.2.

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(2)

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CORAM : B.P. DHARMADHIKARI & RAVINDRA V. GHUGE, JJ.

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Date of reserving the judgment : 9th October 2013

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Date of pronouncing the judgment : 19th October 2013

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JUDGMENT (Per B.P. Dharmadhikari, J.) :

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Heard Adv. Mr. S.B. Talekar with Adv. Mr. M.S. Nilwant for the petitioner; learned AGP Mr. S.K. Tambe for respondent no.1, and Adv. Mr. P.S. Patil for respondent no.2.

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Rule. Rule made returnable forthwith. Heard finally by

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consent.

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As no order adverse to the interest of respondent no.3 is being passed, notice to respondent no.3 upon Rule is not necessary.

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By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner, student, has assailed the order of Scrutiny Committee dated 14th January 2010, invalidating her caste claim as belonging to "Tokre Koli", Scheduled Tribe. She needs that certificate for service purposes.

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Submission is, validities given to relatives have been ignored,

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(3)

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favourable report of Vigilance Cell has also not been appreciated and statement of mother of petitioner has not been recorded by Vigilance Cell authorities which has resulted in violation of Rule 12(5) of Maharashtra Scheduled Tribes (Regulation of Issuance & Verification of) Certificates Rules, 2003 (For short, "2003 Rules" ). It is not in dispute that the verification has been undertaken by respondent no.2 / Committee in accordance with provisions of Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes ( Vimukta Jatis ), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification Of) Caste Certificate Act, 2000 [Act No. XXIII of 2001] , (For short, "Act No. XXIII of 2001" ).

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Adv. Mr. Talekar with Adv. Mr. Nilwant has accordingly invited our attention to Vigilance Cell report, to certificate of validity given to one Swapnil Liladhar Raysing on 27-6-2006 and also to list of 37 documents submitted by the petitioner. He contends that the Scrutiny Committee has not appreciated these documents but has picked and chosen only some of the documents. Our attention has been invited to documents at Serial Nos.23 to 29 along with the documents filed at Exhibit A-14 to demonstrate that those documents have not been looked into at all. He has submitted that Division Bench of this Court, in the case of Ku. Heera d/o. Shalikram Mundharikar Vs. Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur & others [2010 ALL M.R.(Supp.) 468] , mandates recording of statement of mother also.

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Adv. Mr. Patil appearing for respondent no.2 / Committee has pointed out that though large number of documents have been filed, old

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(4)

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documents all relevant have been looked into and, therefore, non-mention of later documents at Serial Nos.23 to 29 in the list cannot be said to be its non-consideration. He contends that provisions of Section 8 of Act No. XXIII of 2001 cast obligation upon petitioner to substantiate her caste claim. He further points out that full opportunity has been given to the petitioner. Caste claim of real sister of petitioner was also invalidated by respondent no.2 / Committee and Writ Petition No. 5608 of 2008 filed by her has been dismissed by Division Bench of this court on 23rd September 2008.

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In the background of these arguments, we have considered the controversy.

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Perusal of Vigilance Cell report dated 19th December 2009 reveals that the Police Officer attached to that Cell has only recorded facts. He has not arrived at any conclusion. The said report has been then looked into by Research Officer who on 21-12-2009 after considering the same and applying anthropology test, found that affinity is not established. After receipt of this report on very same day, a show cause notice was given to the petitioner enclosing with it, the Vigilance Cell report. On 4-1-2010, petitioner has replied to it. At that time, she did not make any grievance about Vigilance Cell authorities not recording statement of her mother. She could have led evidence of her mother or any other elderly person to prove affinity. But that also has not been done. Section 8 of Act No. XXIII of 2001 is very clear. It casts obligation squarely upon her. In this situation, we find that the argument of not examining mother is clearly by way of afterthought and unsustainable. Petitioner has failed to point

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(5)

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out any prejudice caused to her because of such not recording of statement of her mother.

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The Division Bench judgment in the case of Ku. Heera d/o. Shalikram Mundharikar Vs. Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur & others (supra), interprets provisions of Rule 12(5) of 2003 Rules in the background of facts before it. It appears that there, nonexamination of mother may have resulted in some prejudice or then the Division Bench was not required to look into said aspect. It is not very clear, whether grievance about not recording of statement of mother by Vigilance Cell authorities was made by petitioner Kum. Heera therein at the earliest opportunity before Scrutiny Committee. We, therefore, find that the said judgment cannot come to the rescue of the present petitioner in the facts before us.

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We have perused the impugned order passed by the Scrutiny Committee. The Scrutiny Committee has noted several documents and has also considered documents which are relevant and then arrived at its findings. It has found that the statement of applicant's father made before it was sufficient to show that he belongs to "Koli" caste categorized as Special Backward Class. He also accepted that surname as "Suryawanshi Koli" shows his upper status in "Koli" community. The old documents looked into by Vigilance Cell authorities recording caste as "Hindu Suryawanshi Koli" dated 12-12-1938, 5-7-1948 and 1-6-1957 are also relied upon by the Scrutiny Committee in this background. It is clear that not only on the basis of these documents, but after applying affinity test, the Committee has recorded a finding that the petitioner could not

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(6)

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establish her caste claim as belonging to "Tokre Koli" community.

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In so far as validity given to relatives is concerned, while deciding Issue No.3, the Committee has found that at that time affinity test was not applied. It is important to note that when Committee grants validity certificate, it does not record reasons. In the present facts, the Committee has found that in school records of petitioner's father and her uncle, their caste has been recorded as "Suryawanshi Koli" and "Koli". These findings are not shown to be perverse at all.

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The caste claim of real sister of the petitioner, Bhavana Atmaram Suryawanshi, was invalidated by the Committee on 25-1-2008. This was questioned by Kum. Bhavana in Writ Petition No. 5608 of 2008 before this Court. The Division Bench has looked into the rival contentions and dismissed her petition on 23rd September 2008. Thus, order of the Scrutiny Committee against Kum. Bhavana has been maintained.

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Judgment of this Court dated 16th December 2009, in Writ Petition No. 7055 of 2009, only sends matter back to Scrutiny Committee and hence, the fact that said Writ Petition was allowed with costs of Rs. 25,000/-, by itself, is not decisive either way. The contention that the petitioner has attempted to point out situation in which entries prior to 1957 or 1950 were noted as "Koli" or "Suryawanshi Koli" or "Hindu Koli", is again not established and loses importance due to later documents and affinity test. When documents produced by the petitioner militate with her caste claim, it is not necessary to consider each and every

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document unless and until its independent status or lack of bearing on other documents is proved. Here, it is not in dispute that the petitioner got complete opportunity and could not plead or prove need of independent appreciation of such documents. Consideration of earlier or old documents by the Scrutiny Committee eclipses the later documents pressed into service by the petitioner.

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We, therefore, do not find any jurisdictional error or perversity in the approach of respondent no.2 / Committee. No case is made out warranting interference. Hence, petition is dismissed. Rule is discharged. No costs.

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( RAVINDRA V. GHUGE ) ( B.P. DHARMADHIKARI ) JUDGE JUDGE

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bgp/wp3128

Vaishali Atmaram Suryawanshi v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Vaishali Atmaram Suryawanshi v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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