MR. AKHTAR KADAR JAMADAR vs. STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND ORS.

2021:BHC-AS:15012-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1401 OF 2018
Mr. Akhtar Kadar Jamadar
Aged 19 years, residing at Malbhag,
Near Post Office, Herle,
Tal. Hatkanangle, Dist. Kolhapur. … Petitioner
Vs.
1. State of Maharashtra
Through its Secretary,
Social Justice Department,
Mantralaya, Mumbai – 32.
2. District Caste Certificate Scrutiny
Committee, Kolhapur.
Through its Member Secretary,
having its office at Dr. Babasaheb Ambedkar
nd
Samajik Nyay Bhavan, 2 Floor, Kavla Naka,
Kolhapur.
3. Directorate of Technical Education
and Competent Authority,
Maharashtra State, 3, Mahapalika Marg,
Dhobi Talao, Mumbai-1.
4. The Principal,
Kolhapur Institute of Technology’s,
College of Engineering and Technology,
Kolhapur, having its office at 1-3, Gokul,
Shirgaon, Kolhapur, Dist. Kolhapur. … Respondents
-------
Mr.C.K. Bhangoji alongwith Ms. Suvarna S. Yadav, advocates for
Petitioner.
Ms. Sushma S. Bhende, Asst. GP for Respondents No.1 to 3-State.
-------
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CORAM : R.D. DHANUKA AND
ABHAY AHUJA, JJ.
RESERVED ON : 30TH SEPTEMBER, 2021.
PRONOUNCED ON : 21ST OCTOBER, 2021.

JUDGMENT : (PER ABHAY AHUJA, J.)
1. Rule. With consent of the counsel for the parties, rule made
returnable forthwith and heard finally.
2. By this petition, filed under Article 226 of the Constitution of
India, petitioner is challenging the legality and validity of the
th
judgment and order dated 14 December 2017 passed by the
District Caste Certificate Scrutiny Committee, Kolhapur viz.
Respondent No.2, rejecting/invalidating the caste claim of the
petitioner as Gavali, Nomadic Tribe (B).
3. Brief facts leading upto this petition are that, petitioner who
claims to belong to the Gavali community by birth applied to the
Sub-Divisional Officer, Ichalkaranji for grant of caste certificate and
th
was granted the same on 9 June 2010. Thereafter, petitioner
intending to seek higher education, made an application before the
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second respondent-committee for verification of his caste certificate
through his junior college alongwith the necessary documents,
evidence in support of his claim to the Gavali, N. T. (B). It is stated
that at the time of filing this petition, petitioner was pursuing bio-
technology degree course in a reserved category seat in N. T. (B) in
respondent no. 4-college viz. Kolhapur Institute of Technologys
College of Engineering and Technology, Kolhapur.
4. Respondent No.2-Committee handed over the case of
petitioner to the Vigilance Cell for conducting the caste certificate
and home inquiry after which the police inspector of Vigilance Cell
conducted inquiry and recorded statements of local persons at the
petitioner’s place of residence and submitted report to respondent
no. 2- Committee. The Committee issued a show cause notice to
petitioner based on the said vigilance cell report which was replied
to by the petitioner. Thereafter, without considering the vigilance
cell report, the affinity test, the evidence of agreements for milk
supply by petitioner’s cousin grandfather, the respondent no. 2-
committee rejected petitioner’s claim to Gavali, NT (B).
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5. It is the case of petitioner that petitioner belongs to Gavali
caste and that the family of the petitioner was engaged in the
traditional occupation of selling milk. It is submitted that reputed
local persons around petitioner’s place of residence testified
petitioner’s family carrying on the traditional occupation of selling
milk as well as the traits rituals, rites and traditions of petitioner’s
family resembling those of Gavali Nomadic tribe. Petitioner also
submitted documentary evidence, in the nature of agreement in
respect of petitioner’s cousin grand-father supplying milk to certain
hotels from the year 1958 was submitted to the caste scrutiny
committee.
6. Learned counsel for petitioner submits that all these vital
pieces of evidence have been rejected by the caste scrutiny
committee primarily on the ground that no reference to caste
entries was found in the documents except description as Muslim or
Musalmaan. Learned counsel for petitioner submits that it is settled
law as held by this Court in Writ Petition No. 10577 of 2013 that in
the case of Muslims, the affinity test is necessary as there is no
likelihood to be found in caste entries in their documents and
therefore, affinity to Gavali community as testified in the
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nd
statements recorded in the inquiry report dated 22 February 2017
submitted by the Vigilance Cell to the respondent no.2- committee
st th
as well as the agreements dated 21 September 1959 and 17 April
1958 was conclusive to show that the petitioner’s cousin
grandfather was selling milk to the hotels etc. and ought to have
been considered by the Scrutiny Committee. Learned counsel
further submits that as per law laid down by the Hon’ble Supreme
Court in the case of Madhuri Patil Vs. Additional Commissioner,
Tribal, ( 1994 SCC (6) 241), the respondent no.2- Committee ought
to have directed the vigilance officer to record statement of
petitioner or his family members with respect to the affinity
towards the Gavali community as is required when there are no
documents to show caste.
7. Learned counsel for petitioner draws attention of this Court to
nd
the vigilance cell report dated 22 February 2017 regarding home
inquiry in petitioner’s case at pages 43 and 44, relevant portions
whereof are quoted as under:-
“ mesnokjkps [kkyhy izek.ks ‘kkys; nk[kys gtj dsysys vkgsr-

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n{krk iFkdkus ojhy v- dz- 1 rs 3 e/khy ‘kkGsP;k nk[kY;kP;k tujy jftLVj
mrk&;kaph Nk;kafdr lR;izrh miyC/k d#u ?ksrys vkgsr- ‘kkGse/;s tkrhph uksan
mesnokjkus lknj dsysY;k ‘kkys; nk[kY;kizek.ks vkgs- ‘kkGsP;k jftLVj e/;s
[kkMk[kksM] ‘kkbZcny fdaok v{kjcny fnlqu ;sr ukgh-
3½ x`gpkSd’kh &
mesnokj gs eqGps jkg.kkj eq- iks- gsysZ rk- gkrd.kaxys ft- dksYgkiwj ;sFkhy vkgsr-
n{krk iFkdkus lnj xkokrhy [kkyhy jfgok’;kdMs mesnokjkaP;k dqVqackph tkr]
O;olk; o okLrO;kckcr rlsp R;kaP;k pkyh&fjrh] :<h&ijaijk o jksVh&csVh
O;ogkjkckcr pkSd’kh d#u R;kaps tckc uksanfoysys vkgsr-
1- ckcklkgsc jfgeku unkQ o; o”ksZ 60
2- xkSl dk’khe uk;doMh o; o”ksZ 64
ojhy lk{khnkj gs ueqn iR;koj R;kaP;k tUekiklqu jkgr vlqu mesnokjkl rlsp
mesnokjkP;k dqVqackrhy lnL;kauk lq/nk vksG[krkr- mesnokjkps vktksck xqykc
teknkj ;kapk o dqVqach;kapk ikjaikfjd O;olk; gk nq/k fodzh dj.;kpk vlY;kps
rs lkaxrkr- rlsp R;kaP;k loZ :<h ijaijk ;k eqLyhe /kekZ izek.ks ikj ikMY;k
tkrkr- rlsp R;kaps oSokfgd laca/k gs teknkj] eqYyk] uk;doMh] nslkbZ o
ckjxhj ;kapsr gksr vlY;kps o rs tkrhus xoGh vlysps R;kauh lkafxrysys vkgs-
4½ oa’kkoGhps izfrKki= &
mesnokjkP;k oMhykauh foghr ueqU;ke/;s oa’kkoGhps izfrKki= lknj dsys vkgs- lnj
izfrKki=ke/;s ueqn vlysys mesnokjkps ukrslaca/k gs brj iqjkO;ko#u Li”V gksr
vkgsr-
pkSd’khpk xks”kokjk
mesnokj ;kaP;k xoGh tkrhnkO;k izdj.kh dsysY;k pkSd’khpk xks”kokjk iq<hyizek.ks
&
1- xqykc dknj teknkj ;kaP;k ‘kkys; nk[kY;kojrh tkrhph uksan eqlyeku vkgs-
2- v[rj dknj teknkj ;kaP;k ‘kkys; nk[kY;kojrh tkrhph uksan eqlyeku vkgs-
3- teknkj dknj xqykc ;kaP;k ‘kkys; nk[kY;kojrh tkrhph uksan eqlyeku vkgs-
4- mesnokj ;kaps jkgrs xkoke/;s lk{ khnk jkadMhy x`g pkSd’khe/;s R;kauh
mesnokj ;kauk o R;kaps oMhy] vktksck ;kauk vksG[kr vlY;kps rlsp mesnokjkps
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vktksck ;kapk ijaijkxr O;olk; gk nq/k fodzh djr vlY;kps lkafxrys vkgs-
R;kaps oSokfgd laca/k gs teknkj] eqYyk] uk;doMh] nslkbZ o ckjxhj ;kapsr gksr
vlY;kps o rs tkrhus xoGh vlysps lkafxrysys vkgs-
,danjhr mijksDr ueqn dsysY;k mesnokj ;kaP;k xoGh tkrh nkO;kP;k iMrkG.kh
lanHkkZr pkSd’kh dj.;kr vkyh vlqu pkSd’khph dkxni=s vuqdzes voyksdukFkZ ;k
lkscr vxzsf”kr dj.;kr ;sr vkgsr- ”
8. Learned counsel submits that in the case of Muslim
Community, in the school records only “Musalmaan” is mentioned
and there is no reference to their caste or tribe. Referring to
paragraph 3 above, regarding Home Enquiry he submits that the
two persons referred to therein claimed to know the petitioner as
well as petitioner’s family members positively asserted that
petitioner’s grandfather’s and their family ancestral business was of
selling milk. Their traditions and rituals are followed as per Muslim
religion. Similarly, their marriage relations are with Jamadar,
Mulla, Nayakvadi, Desai and Bargir communities and therefore they
are belonging to Gavali tribe. Drawing attention to the conclusion
no.4, as quoted above, learned counsel reiterated that petitioner
therefore belongs to the Gavali Nomadic tribe.
9. Learned counsel submits that despite the clear findings by the
Vigilance Cell, in favour of petitioner’s claim to Gavali Nomadic
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th
Tribe, the respondent no.2 issued a show cause notice dated 5
April, 2017 to petitioner seeking explanation to the enquiry report,
which he submits was appropriately responded to by letter dated
th
25 April 2017. Learned counsel takes us through the said letter
and submits that the entire focus of the letter was on the absence of
documentary evidence and not on the successful affinity test.
10. Learned counsel at this stage tenders a communication dated
nd
22 July, 1996 from Additional Secretary, Social Welfare, Cultural
and Sports Department to Director, Social Welfare containing
directions highlighting the necessity and importance of home
enquiry etc. in the case of Muslim Community as there is no
description of caste in their documents and there is less likelihood
of finding caste description therein. In support learned counsel
takes us to various exhibits to the petition which only show
“Musalmaan” in the column for caste.
11. Learned counsel submits that the caste scrutiny committee
has simply rejected petitioner’s documents on the ground that only
Musalmaan is mentioned in the school admission records and other
documentary evidence and no where Gavali is mentioned or that
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the petitioner has not produced any caste validity certificate
previously granted to any blood relation showing Gavali tribe. With
respect to the cousin grandfather’s milk supply contracts, it is
submitted that the same has been rejected on the ground that the
same had not been registered and is not a public document but only
a private one.
12. The scrutiny committee has rejected the vigilance cell report
without even considering the basic principle of determining caste
validity in the case of Muslim community and only on the basis that
the vigilance cell report is based only on oral evidence.
13. Learned counsel for petitioner has taken us through the two
agreements entered into between petitioner’s cousin grandfather in
the years 1958-1959, exhibited from pages 31 to 39 of the petition.
14. In support his contentions, learned counsel has relied upon
the following decisions:-
i) Smt. Bismilla Mohammedsab Sayyed (Mujawar) @
Bismilla Alabaksh Shikkalgar Vs. Divisional Caste
Certificate Committee No. 1, Solapur through its Member
Secretary and others in Writ Petition No. 10577 of 2013
st
decided on 21 February 2014.
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ii) Shri Shahjahur Aminullah Momin Vs. State of
Maharashtra through its Secretary and Others in Writ
th
Petition No. 8687 of 2015 decided on 26 February 2019.
iii) Miss Swaliha B. Sanadi Vs. State of Maharashtra and
nd
others in Writ Petition No. 11414 of 2019 decided on 22
December 2020.
15. Per Contra, learned AGP, Ms Bhende, relies upon the order of
th
scrutiny committee dated 14 December 2017 and reiterates that
the school admission documents of petitioner as well as his relatives
refer to the caste as “Musalman” and not Gavali. Referring to the
vigilance cell report, she submits that the statements of the persons
named therein were only oral and therefore cannot be relied upon.
With respect to the agreements, learned AGP submits that the same
were not registered and therefore deserve to be rejected. Learned
AGP, therefore, urges this Court to dismiss the petition and uphold
the order of the scrutiny committee rejecting the petitioner’s claim
to the Gavali Nomadic Tribe.
16. We have heard Mr. Bhangoji, Learned Counsel, on behalf of
Petitioner and Ms. Bhende, Learned Assistant Government Pleader
for Respondents No. 1 to 3- State and with their able assistance, we
have perused the papers and proceedings in the matter.
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17. Let us first come to the decisions cited by learned counsel for
petitioners in support of his contentions. With respect to the
decision in the case of Smt. Bismilla Mohammedsab Sayyed
(Mujawar) (supra), this Court while considering the claim of
petitioner therein belonging to other backward classes (OBC) had
the occasion to examine the claim of petitioner, who was Mujawar
caste amongst Mohameddans, which is recognised as other
backward class. It was held therein that on the basis of
recommendation of the Mandal Commission certain castes in
Mohameddans were recognized as reserved caste and the
notification was issued by the State Government in this regard on
th
9 August 1995. This Court while holding that since in the case of
Mohameddans, there was no recognised castes or sub-castes as in
the case of Hindus, there was no likelihood of finding any entry of
the caste of a person of Mohameddan religion in the old records.
18. This Court, therefore, highlighted the necessity of recording of
statements of respected and responsible persons from the
concerned area under Rule 13 (1) of the Maharashtra Scheduled
Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes and Special Backward
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Category (Regulation of Issuance and Verification of) Caste
Certificate Rules, 2012 as well as the affinity test. This Court also
highlighted the importance of the vigilance cell and affinity test in
the case of Muslims in contradistinction to the entries in the
records as in the case of Hindus. Paragraphs 5 and 6 of the said
decision are usefully quoted as under:-
“5. It cannot be disputed that in case of the Mohameddans,
there were no recognised castes or sub castes and
therefore, as in the case of Hindus, there is no likelihood of
finding any entry of the caste of a person of Mohameddans
religion in old records.
6. In the present case, the petitioner is claiming to be
belonging to caste Mujawar. Our attention is invited to the
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 Rules, 2012 (hereinafter referred to as ‘the said
Rules’). Rule 12 provided for the constitution of Vigilance
Cell. Rule 13 deals with contents of the report upon
investigation made by the Vigilance Cell. Sub Rule (1) of
Rule 13 reads thus :
“ 13 Report of Vigilance Cell and Issues to be dealt
with-
(1) Vigilance Cell Officer(s) shall submit report
upon investigating into the Scheduled Caste,
Scheduled Caste converts to Buddhism, De-
notified Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes or Special Backward
Category claim referred to it-
(a) by visiting permanent place of
residence and conducting domestic
inquiry, or
(b) by recording statements of respected
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and responsible persons from concerned
area, including representatives of Local
Self Government, Police, Patil, etc; or (c)
by collecting information, as part of
recording statement, as regards to name,
age, educational qualification, occupation,
existing place of residence and
information regarding properties
(existing and disposed) of family
members of applicant or claimant; or
(d) by collecting information including the
sociological, anthropological and
ethnological (anthropological moorings
and ethological kinship), genetical traits
of the Scheduled Caste, Scheduled Caste
converts to Buddism, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other
Backward Classes or Special Backward
Category, if any,; or
(e) by personally visiting Office of the
Competent Authority or revenue or school
or other concerned offices.”
In the present case, the Vigilance Cell report is on
record. Clause (d) of sub Rule 1 of Rule 13 provides
that the Vigilance Cell should collect information
including sociological, anthropological,ethnological and
genetical traits of the relevant Caste. In the present
case, this exercise was necessary as we have already
observed earlier that there is no likelihood of any entry
of caste recorded in old record in the case of
Mohameddans. It was necessary for the Vigilance Cell
to make an enquiry in terms of clause (d). An enquiry
should have been made to ascertain the traditional
occupation of the Mujawars. We have perused the
Vigilance Cell report. We find that no such exercise has
been made. Perusal of the impugned order shows that
even the Caste Scrutiny Committee has not applied the
affinity test. Therefore, we find that the entire approach
of the Caste Scrutiny Committee is erroneous as in the
facts of the case, the Caste Scrutiny Committee should
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have directed the Vigilance Cell to do the exercise
under the provisions of Clause (d) of Sub Rule 1 of Rule
13 the said Rules. The Caste Scrutiny Committee ought
to have held the appropriate enquiry in the present
case. Earlier, the petitioner had obtained caste
certificate of the caste Shikalgar. A caste certificate is
not conclusive evidence of caste. It is not the case made
out that any adjudication was made on the basis of the
said certificate by the Caste Scrutiny Committee. In the
present case, the enquiry as contemplated by the Rules
has not been held. Only on the basis of the impugned
order, the petitioner, who was elected Councilor of
Municipal Corporation has been unseated. Now, the
th
notification dated 15 February 2014 issued by the first
respondent State Election Commission records that the
election will be held to fill in the vacancy caused by the
petitioner. The election programme is to start from
25th February 2014 and the election is scheduled to be
rd
held on 23 March 2014. If the petitioner succeeds
after the order of remand, the order unseating the
petitioner will not survive and therefore, to avoid any
complications, it will be necessary for the State Election
Commission to postpone the election for filling up the
vacancy caused by the petitioner.”
19. Coming to the decision of this Court in the case of Shahjahur
Aminullah Momin (supra), this court while considering the claim of
petitioner being member of Musim Momin community as OBC has
reiterated that as there is no practice of mentioning the caste/sub-
caste amongst the Muslims, the report of vigilance cell assumes
significance. Paragraphs 7 to 9 of the said decision are pertinent
and are quoted as under:-
“7] Evidently there are no pre-constitutional documents,
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which record the caste of the forefathers of the Petitioner
as “Muslim Momin”. However, this factor does not seem to
be decisive as even Respondent No.2 – Committee
expressly observed that there was no practice of
mentioning the caste/sub caste amongst the Muslims. The
fact that the school leaving certificates of the paternal
relations of the Petitioner simply record Muslim and do
not find mention of 'Momin', does not detract materially
from the Petitioner's claim. The Respondent No.2-
Committee was of the view that the claimant was required
to place material indicating the occupation, and the
Petitioner failed to do so.
8] In this context, the report of the Vigilance Cell assumes
significance. It is pertinent to note that the Vigilance Cell
report refers to the local inquiry made with the witnesses
and explicitly records that the grandfather and father of
the Petitioner were handloom weavers and their
traditional occupation was handloom weaving. It further
records that the persons who were in the know of the
things recognized the Petitioner and his ancestors as the
members of the Momin caste. The Vigilance Cell report
also refers to a certificate issued by the Momin Jamat
Trust to the effect that the Petitioner is a member of the
Momin community. Conversely, the vigilance inquiry did
not find any contra material.
9] In the backdrop of the aforesaid Vigilance Cell report, it
is necessary to note as to how the Respondent No.2 –
Committee dealt with the said report. In the impugned
order, the Respondent No.2 – Committee simply observed
that it does not agree with the report of the Vigilance Cell.
No reason was assigned by the Respondent No.2–
Committee to indicate as to why it found itself unable to
agree with the Vigilance Cell report. This factor is of
material significance for the reason that the Respondent
No.2 – Committee was alive to the position that the
insistence upon entries of the caste in the documents was
not expected as the Petitioner professed Muslim religion.
The report of the Vigilance Cell which lent requisite
support to the claim of the Petitioner could not have been
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thus brushed aside without assigning any justifiable
reason.”
20. Also the decision of this Court in the case of Miss Swaliha B.
Sanadi (supra), (where one of us R. D. Dhanuka, J. was a member)
assumes significance in the light of the present discussion as this
Court in this decision as well has highlighted the significance of
affinity test as amongst Muslims there is no practice of mentioning
caste in the records. Paragraphs no. 9 to 11 are relevant and are
quoted as under:-
“9. Mr. Sutar is right in relying on the judgment in the
matter of Jamadar Mehaboob Ghudubai (supra). He placed
reliance on paragraph 13 of the said judgment. The said
paragraph 13 is reproduced herein below.
“13. We also find that Vigilance Cell has not carried
out enquiry as required by clause (d) of Sub- Rule 1
of Rule 13 which provides that the Vigilance Cell
should include information including sociological,
anthropological, ethnological and genetical traits of
the relevant Caste. In the present case, this exercise
was necessary as there is no likelihood of any entry
of caste recorded in old record in case of
Mohameddans. It was necessary for the Vigilance
Cell to make an enquiry in terms of clause (d).
Perusal of the impugned order shows that the
Committee has not applied the affinity test. This
Court has already considered the provisions of Rule
13 of the said Rules in case of Smt.Bismilla
Mohammedsab Sayyed (Mujawar) @ Bismilla
Allabaksh Shikkalgar (supra). In this case also we
find that entire approach of the Caste Scrutiny
Committee is erroneous as in the facts of this case,
the Caste Scrutiny Committee should have directed
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the Vigilance Cell to do the exercise under the
provisions of clause (d) of Sub-Rule 1 of Rule 13 of
the said Rules. The Caste Scrutiny Committee ought
to have held appropriate enquiry in the present
case.”
10. As the Vigilance Cell Report is not in accordance with
the Rules and therefore, the impugned order suffers from
illegality and irregularity.
11. As far as the second contention that none of the
documents show that the petitioner belongs to caste
“Kasai”, it is well settled that in case of Muslims, there was
no practice of mentioning the castes in the record.”
21. What emerges from the above exposition is that:
(i) The committee should be alive to the position that insistence
upon entries of the caste in the documents is not be expected in a
case where the applicant professes Muslim religion,
(ii) As held in the decisions cited herein, this Court has repeatedly
highlighted the significance of affinity test as amongst Muslims
there is no practice of mentioning caste in the records except
mentioning the “Muslim”, “Musalman” or “Mohameddan” as can be
seen from the documents annexed to the petition,
(iii) particularly in the case of Muslims, under Rules 12 and 13 of
the said Rules, vigilance cell officer is to submit report by recording
statements of respected and responsible persons from the
concerned area as well as by collecting information including the
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sociological, anthropological and ethnological, genetical traits in
respect of the concerned caste/tribe, which in our view, the
vigilance officer has scrupulously and meticulously done as can be
seen from the submissions above,
(iv) as in the case of the Muslim community there is no
practice of mentioning the caste/sub-caste and evidently in this case
neither there are any pre-constitutional documents nor records
indicating the said caste therefore, the report of vigilance cell
assumes significance. The local inquiry made with the witnesses
regarding the traditional occupation would also come out in the
vigilance cell report. The same in our view been erroneously
rejected by the committee on the flimsy ground that the same was
based on oral statements. Where an inquiry is made pursuant to the
said Rules by the vigilance cell officer naming the persons who gave
the information, in our view rejection by the committee was
completely unwarranted. There is also no also allegation by the
committee as to the veracity of this information but simply on the
basis that the vigilance cell report is based on oral evidence, the
same has been rejected. This in our view is not acceptable.
(v) Further the rejection of the milk supply agreements entered
into by cousin grand-father of petitioner is also erroneous. A
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perusal of the said agreements indicates that these agreements are
on stamp papers and are entered into between one of C. B.
Mohammad Malbari and Yashin Kadar Jamadar of Kolhapur
(cousin grandfather of petitioner) and the other one is between H.
Manjunath Shivdev Shetty and Yashin Kadar Kamadar. Both the
agreements are for supply of milk. True that these documents are
not registered but we observe that the same are on stamp paper and
in any event agreements for selling/supply of movables are not
compulsory registrable documents under law. For the caste scrutiny
committee to raise such an objection for rejecting claim of petitioner
is completely misplaced in our view.
22. A perusal of the impugned order shows that the committee
has not applied the affinity test nor considered the vigilance cell
report. The caste scrutiny committee ought to have considered the
conclusions in the vigilance cell report. It has miserably failed in its
duty to do so.
23. We also agree with the submissions made on behalf of
nd
petitioner with respect to the communication dated 22 July 1996
from the Additional Secretary, Social Welfare to the Director, Social
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Welfare which contains directions highlighting the necessity and
importance of the home inquiry etc. in the case of Muslim
community as there is no description of caste in their documents
and there is a less likelihood of finding caste description therein,
which is clearly borne out from the various exhibits annexed to the
petition.
24. Having observed as above, it will also not be out of place to
refer to the decision of this Court in the case of Kum. Fehmi
Mushtak Mukadam (supra), where this Court, based on the report
of the vigilance cell was persuaded to uphold the claim of petitioner
belong to Gavali Nomadic Tribe-B, who professed Muslim religion.
Paragraph 7 of the said decision is usefully quoted as under:-
“7. In the present case, the report of vigilance cell shows
that the grand-father of the petitioner was in the business
of grazing the cattle and selling the milk. He had cattle
shed and maintaining 15-20 cows and buffaloes. Not only
this but upon examination of the witnesses and vigilance
cell further found that the relatives of the petitioner are
having surnames which are normally found in Gavali
Tribe. In that view of the matter, we are inclined to allow
the Petition”
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25. We are not impressed with the learned AGP’s arguments. The
learned AGP has not been able to distinguish the above referred
judgments.
26. We, therefore, have no doubt that respondent no. 2 scrutiny
committee having completely failed in its duty to apply settled basic
principles based on which caste validity claims in case of Muslims
are to be determined and having completely ignored the
overwhelming and uncontroverted findings of the vigilance cell as
well as the two agreements entered into by petitioner’s cousin
grandfather for supply of milk in the years 1958 and 1959. The
th
impugned judgment and order dated 14 December 2017 thus
deserves to be quashed and set aside. We hereby quash and set aside
th
the judgment and order dated 14 December 2017 passed by
respondent no. 2 viz. District Caste Certificate Scrutiny Committee,
Kolhapur.
27. We further direct the respondent no.2-committee to issue
caste validity certificate to petitioner as belonging to Gavali,
Nomadic Tribe (B), within a period of two weeks from today.
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28. Rule is made absolute in the above terms. Writ petition is
accordingly allowed. There shall however be no order as to costs.
29. Parties to act upon an authenticated copy of this order.
(ABHAY AHUJA, J.) (R.D. DHANUKA, J.)
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