Remanded

Kum. Sunita Basappa Koli v. State of Maharashtra, through Secretary, Tribal Development Dept and Ors.

Bombay HC5 May 2014WP/1356/2013

Case brief

AI extract

What is this about?

This single judge bench invoked Article 226 to quash an order by the Scrutiny Committee invalidating the petitioner's Scheduled Tribe certificate. The court found the committee's reliance on affinity tests and area restrictions erroneous post-1976 amendment and remitted the matter for de novo consideration.

What did the court decide?

Impugned order quashed; matter remitted to Scrutiny Committee for de novo consideration with liberty to adduce evidence.

Kum. Sunita Basappa Koli Vs State of… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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WRIT PETITION NO.1356 OF 2013

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Kum. Sunita Basappa Koli,	)
aged 34 years, residing at	)
Bhavani Peth, 55/22, Shabir Vasti,	)
Solapur, Dist. Solapur. V/s.	) : Petitioner
1. State of Maharashtra	)
through its Secretary,	)
Tribal Development Department,	)
Mantralaya, Mumbai—400 032.	)
2. Scheduled Tribe Certificate	)
Scrutiny Committee, Pune Division,	)
Pune, through its Member Secretary,	)
having its office at 28, Queen's Garden	)
Pune—411 001.	)
3. Pt. Vishnu Digambar Paluskar	)
Multipurpose Education Society's	)
Madhyamik Vidyalaya, Palus	)
through its Secretary, having	)
its office at Paranjpe Colony, Palus,	)
Dist. Sangli—416 310.	)
4. Education Officer (Secondary),	)
Zilla Parishad, Sangli, Dist. Sangli.	) : Respondents

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Mr.R.K.Mendadkar for the Petitioner.

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Ms M.S.Bane, `B' Panel Counsel for Respondent nos.1, 2 & 4.

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CORAM : ANOOP V. MOHTA &

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A.A. SAYED, JJ.

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Date of Reserving the ) : 18.02.2014. Judgment. ) Date of Pronouncing ) : 05.05.2014. the Judgment. )

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JUDGEMENT (Per A.A.Sayed, J.)

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Invoking Article 226 of the Constitution of India, the Petitioner by this Petition has impugned the order dated 21.12.2012 passed by the Scheduled Tribe Certificate Scrutiny Committee, Pune, invaliding the Caste Certificate dated 21.02.2004 issued to the Petitioner by the Deputy Collector & F.D.O., Solapur.

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The Petitioner claims to belong to Koli Mahadev, Scheduled Tribe. She was appointed as a Shikshan Sevak in Respondent no.3 college. By an adinterim order dated 15.02.2013 this Court had granted status quo in respect of Petitioner's employment. The Scrutiny Committee, in the impugned order, framed and answered four issues as extracted hereunder:

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“1. Whether the applicant is able to prove her tribe claim by way of documentary evidence? Partly

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1. Whether the applicant is able to prove her affinity towards Koli Mahadev, Scheduled Tribe? No

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1. Whether the applicant is able to prove her affinity

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towards the Area, where the people of the tribe claimed by the applicant were residing before the No Enactment of Removal of Area Restrictions, 1976?

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Whether the ratio of the validity certificate of the applicant's real brother can be applied in the instant No case?”

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Insofar as issue no.1 is concerned, viz., whether the Petitioner is able to prove her tribe claim by way of documentary evidence', it is noticed that before the Scrutiny Committee, amongst other documents, the Petitioner had produced the Caste Validity Certificate issued by the Scrutiny Committee validating the Caste Certificate in respect of her brother Sanjay Basappa Koli as belonging to Hindu Mahadev Koli Scheduled Tribe. The Petitioner had also produced the School Leaving Certificate of her father, Basappa Bhimanna Koli wherein his caste is mentioned as Hindu Mahadev Koli. The date of his admission is shown in the School Leaving Certificate as 1.6.1958. The Scrutiny Committee, however, has not given any reasons in the impugned order as to why the above mentioned documents' of the Petitioner's father and her brother Sanjay were rejected and/or not believed.

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Insofar as issue no.2, viz., whether the Petitioner is able to prove her affinity towards Koli Mahadev, Scheduled Tribe, reference would be

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necessary to a recent judgment of the Apex Court in the case of Anand v. Committee for Scrutiny and Verification of Tribe Claims & Ors. , (2012) 1 SCC 113, wherein it was held that the affinity test towards caste cannot be regarded as a litmus test in deciding the validity of Caste Certificate. In the present case, the Scrutiny Committee has given weightage to the affinity test without considering all other relevant facts and circumstances of the case.

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As regards issue no.3 which pertains to area restrictions, in paragraph 8

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of the impugned order, the Scrutiny Committee held as follows:

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“8. In the Scheduled Tribe Order it is mentioned that the Koli Mahadev, Scheduled Tribes were residents of following areas:-

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In Ahmednagar district:- Akola, Rahuri, Sangamner talukas.

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In Kolaba:- Karjat, Khalapur, Alibag, Mahad & Sudhagad talukas. 3. In Nashik district:Niphad, Sinnar, Chandor, Baglan, Igatpuri, Dindori and Kalwan talukas and Surgana and Peit Mahals. 4. In Poona district:Ambegaon, Junnar, Khed, Maval & Mulshi talukas and Velhe Mahal. 5. In Thana district:Thana, Murbad, Bhivandi, Bassein, Wada, Shahapur, Dahanu, Palghar, Jawhar & Mokhada talukas.

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From the records submitted by the applicants and obtained

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by the enquiry officer, it is clear that the ancestors of the applicant are residents of Solapur, District-Solapur. The District Solapur was never mentioned in the above said list. Hence, the applicant has clearly failed to prove her affinity towards the area of Koli Mahadev, Scheduled Tribe. Also it is not a case of the applicant that her forefathers have been migrated to Solapur district from any one of the above said village/talukas/areas. Hence, the Committee has come to the conclusive answer as negative for the issue No.3 above. ”

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The aforementioned area restrictions in respect of Koli Mahadev, Scheduled Tribe are found in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956 (for short the “1956 Order”). Prior to the 1956 Order, the Constitution (Scheduled Tribes) Order 1950 (for short the “1950 Order”) was in operation wherein there were no area restrictions. The area restrictions came into force only by the 1956 Order. By the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, the afore-mentioned area restrictions respecting five Districts have been removed and the position which prevailed in the 1950 Order pertaining to Koli Mahadev, Scheduled Tribe again came into being. By a judgment and order dated 26.02.2014 in Writ Petition No. 7343 of 2013 ( Madhuri Nitin Jadhav v. State of Maharashtra & Ors.) along with connected Petitions, a Division Bench of this Court relying upon several decisions of the Supreme Court including the decision of the Constitution Bench of the Apex Court in the case of State of Maharashtra v. Milind & Ors ., 2001 (1) Mh.L.J. 1, and

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a Bench of three learned Judges of the Apex Court in the case of Palghat Jilla Thandan Samudhaya Samrakshna Samithi & Anr . v. State of Kerala & Anr ., (1994)1 SCC 359, as also decisions of this Court, held that the Presidential Orders are to be read as it is and once the area restrictions are removed, the insistence of the Committee that the Applicant should prove that his/her forefathers belonged to the Districts mentioned in the 1956 Order after the removal of area restrictions is an erroneous approach. Though the Court was not dealing in the aforesaid decisions with Mahadev Koli, Scheduled Tribe, the principle of law that was laid down in the decisions would be clearly applicable in the present case also.

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Insofar as issue no.4 is concerned, viz., whether the ratio of the validity certificate of the Petitioner's real brother can be applied in the instant case, it is noticed that in the Affidavit-in-reply on behalf of the Scrutiny Committee filed in the present proceedings, it is averred that in the Vigilance Committee's report it is stated that information furnished by the Petitioner's brother, Sanjay Basappa Koli regarding the traits, characteristics and customs of the community is not associated with the traits, characteristics and customs of Koli Mahadev, Scheduled Tribe. It is however pertinent to note that the Petitioner's brother, Sanjay Basappa

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Koli, who was present for hearing on behalf of the Petitioner before the Scrutiny Committee has himself been issued the Caste Validity Certificate by the Scrutiny Committee. No doubt, that merely because the caste claim of the brother has been validated would not ip so facto mean that the Petitioner would also be required to be issued a Caste Validity Certificate as a matter of course. The Scrutiny Committee, however, has to furnish reasons as to why a departure has been made in the case of the Petitioner when her brother was issued the Caste Validity Certificate.

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A Division Bench of this Court in the case of Apoorva D/o. Vinay Nichale v. Divisional Caste Certificate Scrutiny Committee & Ors. , 2010 (6) Mh.L.J. 401, has held that merely a different view on the same facts would not entitle the Scrutiny Committee dealing with the subject caste claim to reject it and only if the 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 in respect of a blood relative and in that event the Scrutiny Committee in addition is requried to initiate proceedings for cancellation of the earlier order. In the present case, as indicated earlier, the Scrutiny Committee has not given any reasons as to why a departure has been made in the case of the Petitioner and the impugned order is silent on the aspect whether or not there has been a fraud or misrepresentation or even a mistake in the issuance of the Caste

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Validity Certificate to the brother of the Petitioner.

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For all the reasons stated above, the entire approach of the Scrutiny Committee, in our view, is erroneous and the impugned order cannot be sustained. In our opinion, the matter is required to be remitted back to the Scrutiny Committee for consideration afresh.

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In the circumstances, we pass the following order:

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ORDER

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a) Impugned order of the Scrutiny Committee dated 21 December 2012 is quashed and set aside.

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b) The matter is remitted back to the Scrutiny Committee for de novo consideration.

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c) Liberty is granted to the Petitioner to apply before the Scrutiny Committee for adducing additional evidence, if any, oral and/or documentary.

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d) The Petitioner to appear before the concerned Scrutiny Committee on 19 May 2014 with an authenticated copy of this judgment/order. The Committee to fix the date and schedule of hearing of the matter and shall endeavour to dispose of the matter as early as possible and preferably

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within four months from 19 May 2014.

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e) Pending the decision of the Scrutiny Committee, the adinterim order dated 15 February 2013 granting protection in respect of the Petitioner's employment shall continue to operate.

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f) In case the Scrutiny Committee passes an adverse order against the Petitioner, the same shall not be given effect to and/or acted upon for four weeks from the date of communication of the same to the Petitioner.

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g) The Petition is disposed of in the above terms.

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h) There shall be no order as to costs.

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i) Parties to act upon an authenticated copy of this judgment/order.

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( ANOOP V. MOHTA, J.)

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(A.A. SAYED, J.)

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Kum. Sunita Basappa Koli v. State of Maharashtra, through Secretary, Tribal Development Dept and Ors.

Case brief

What is this about?

What did the court decide?

Kum. Sunita Basappa Koli v. State of Maharashtra, through Secretary, Tribal Development Dept and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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