Full Judgment Text
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CASE NO.:
Appeal (civil) 789 of 2005
PETITIONER:
State of Maharashtra & Ors.
RESPONDENT:
Ravi Prakash Babulalsing Parmar & Anr.
DATE OF JUDGMENT: 31/10/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
W I T H
CIVIL APPEAL NOS. 5146, 5458 & 5459 OF 2005
S.B. SINHA , J :
The jurisdiction of the Caste Scrutiny Committee and/or extent
thereof falls for our consideration in these appeals which arise out of
judgments and orders dated 28.07.2003, 04.10.2004 and 24.11.2004 passed
by the Bombay High Court in Writ Petition Nos. 2745 of 1988, 3153 of
1996 and 3737 of 2001 respectively.
We may, however, notice the factual matrix of the matter from Civil
Appeal No. 789 of 2005.
Respondent is said to be a member of the Scheduled Tribe being
belonging to Thakur community as envisaged under Entry 44 of the list of
the Scheduled Tribes pertaining to the State of Maharashtra issued in terms
of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act,
1976. A certificate showing that he belongs to the aforementioned tribe
community was issued to him. Respondent obtained appointments and/or
admissions in various institutions pursuant to or in furtherance of such
certificate. However, the Scrutiny Committee constituted in terms of the
decision of this Court in Kumari Madhuri Patil and Another v. Addl.
Commissioner, Tribal Development and Others [(1994) 6 SCC 241], opined
that he did not belong to the said community and in fact belongs to
Kshatriya Thakur caste, whereupon his Scheduled Tribe certificate was
cancelled.
Appeal preferred thereagainst before the Additional Commissioner,
Tribal Development, Nagpur, was also dismissed.
Aggrieved by and dissatisfied with the said orders passed by the
Appellate Authority as also the Caste Scrutiny Committee, writ petitions
were filed before the Bombay High Court. Interim stay of the operation of
the said orders having been granted, Respondent continued to remain in his
service.
The learned Judges of the Division Bench of the High Court delivered
separate judgments. Kharche, J. held :
"\005We, therefore, hold that the Caste Scrutiny
Committee as well as the Commissioner were not
justified and, as a matter of law, had no competence to go
into the question by holding an enquiry that the petitioner
belongs to caste "Thakur" of Kshatriya category\005."
Kochar, J., however, in his separate but concurring judgment opined :
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"21. However, what are the parameters of such an
enquiry is a crucial question before us. It cannot partake
or cannot be a civil trial of a Civil Suit in a Civil Court of
law. It has, however, to comply with the principles of
law of Evidence and the natural justice in the matter of
hearing and decision. The enquiry must accord greater
emphasis and credence to the documentary evidence
rather than oral evidence. If there is preponderance of
documentary evidence, such as Caste Certificate, School
Leaving Certificate of the pre-Presidential Orders, they
must be accepted without any further probe or scrutiny.
The document of the post-Presidential Orders, however,
cannot be discarded only on the ground that it is of the
post-Presidential period. That would be absurd and
ridiculous. The Committee cannot proceed on the
presumption that all such documents are fabricated and
created for the purpose of getting reservation benefits. In
such matters, there cannot be any other evidence to
establish the caste claim. There is no blood group or
DNA test to show any one’s caste which is claimed. We
cannot presume that all the parents and all the wards
speak lie for all the time to earn the benefits out of their
caste. No doubt, some might create a false record to
snatch such benefits but cannot lead us to inform
universally for all the times that every document is a
fabricated and bogus document. Ordinarily and
predominantly no high caste person would claim to
belong to a caste of reserved category. There is no
instance heard of that a Brahmin or a Jain or Kshatriya
has recorded falsely that he belonged to an S.C./S.T.
class top get the benefits of those categories. Such
litigation, however, is amongst those whose caste/tribes
have close similarity inter se e.g. Halba and Halba
Koshti, Thakur-Ka-Ma etc. Koli and Mahadev Koli,
Mana \026 Gond Mana etc. etc. in any case, all these
castes/tribes belong to a class of Haves \026 Not and they try
to get some benefit for their livelihood\005"
The learned Judge furthermore commented upon the so-called
malfunctioning of the Scrutiny Committee and directed that it must get
itself satisfied only on the basis of documentary evidence and no oral
evidence would be admissible therefor, concluding :
"(i) No enquiry is permissible as to the entries in
respect of the castes/tribes in the Schedules of the
Presidential Orders. We have to take them as they
are, as mandated in the Milind Katware’s case,
without adding or substracting anything from the
entires.
(ii) The claimant has to prove his claim to belong to a
particular caste/tribe to be able to get the benefits
of the reservation policy.
(iii) The claimant must establish his right by producing
proper documentary evidence.
(iv) The claimant must physically enter in witness box
and swear on oath."
Referring to the object and purport of the Maharashtra Scheduled
Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward Category
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(Regulation of issuance and verification of) Caste Certificate Act, 2000, it
was directed :
(a) Considering the importance of the subject matter
involving most valuable right of either
employment or education which is wholly
dependent upon the Caste/Tribe Certificates, this
job of Caste/Tribe Scrutiny should be assigned to
trained Judicial Officers and not to bureaucrats
who are not at all legally trained to decide and
appreciate the evidence in correct perspective.
Such Committees should comprise of the Judicial
Officers of the District Judges cadre and not less.
We have a large number of retired Judicial
Officers who can be assigned this duty.
(b) All the Scrutiny Committees should be brought
under the control and supervision and within the
purview of Art. 235 of the Constitution of India.
Their recruitments and appointments should be
under the High Court like any other judicial posts."
It is not clear as to whether Kharche, J. agreed with the
aforementioned directions of Kochar, J. or not.
We, however, with respect to the learned judges, record our
disapproval to the observations made and directions issued in this behalf.
The Caste Scrutiny Committee is a quasi-judicial body. It has been
set up for a specific purpose. It serves a social and constitutional purposes.
It is constituted to prevent fraud on Constitution. It may not be bound by the
provisions of Indian Evidence Act, but it would not be correct for the
superior courts to issue directions as to how it should appreciate evidence.
Evidence to be adduced in a matter before a quasi-judicial body cannot be
restricted to admission of documentary evidence only. It may of necessity
have to take oral evidence.
Moreover the nature of evidence to be adduced would vary from case
to case. The rights of a party to adduce evidence cannot be curtailed. It is
one thing to say how a quasi-judicial body should appreciate evidence
adduced before it in law but it is another thing to say that it must not allow
adduction of oral evidence at all.
It was furthermore not proper to suggest that all such bodies should be
brought within the purview of Article 235 of the Constitution of India or
only judicial officers should be appointed.
As judges, we should exercise restraint before making such
observations which would have a far reaching effect. Such directions could
not have been, in our opinion, issued in a matter where the State had not
been called upon to make its comments. No empirical study as regards
functioning of the Caste Scrutiny Committees was carried out. Such
sweeping remarks without there being adequate materials on records were,
thus, unwarranted. They are to a great extent contrary to and inconsistent
with the directions issued by this Court in Madhuri Patil (supra). We
would advert to this aspect of the matter a little later.
The short question which arises for consideration is as to whether the
Caste Scrutiny Committee could go into the validity or otherwise of the
certificate granted by the authorities. The High Court relied upon a decision
of this Court in Palghat Jilla Thandan Samudhaya Samrakshna Samithi and
Another v. State of Kerala and Another [(1994) 1 SCC 359] and some other
decisions of this Court.
We, with respect, do not agree with the conclusion of the High Court
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that no enquiry was permissible at all, once it is found that the person
concerned in whose favour a certificate had been granted to be notified as a
Scheduled Tribe.
The question in regard to the purport and object for which such
Committees are constituted came up for consideration before this Court in a
large number of cases.
In Kumari Madhuri Patil (supra), this Court directed constitution of
such Caste Scrutiny Committees with a view to streamline the procedure for
issuance of social status certificates, their scrutiny and approval. This Court
observed :
"\005Since the Scheduled Tribes are a nomadic class of
citizens whose habitat being generally hilly regions or
forests, results in their staying away from the mainstream
of the national life. Therefore, the State is enjoined under
our Constitution to provide facilities and opportunities
for development of their scientific temper, educational
advancement and economic improvement so that they
may achieve excellence, equality of status and live with
dignity. Reservation in admission to educational
institutions and employment are major State policies to
accord to the tribes, social and economic justice apart
from other economic measures. Hence, the tribes, by
reason of State’s policy of reservation, have been given
the exclusive right to admission into educational
institutions or exclusive right to employment to an office
or post under the State etc. to the earmarked quota. For
availment of such exclusive rights by citizens belonging
to tribes, the President by a notification specified the
Scheduled Tribes or tribal communities or parts of or
groups of tribes or tribal communities so as to entitle
them to avail of such exclusive rights. The Union of India
and the State Governments have prescribed the procedure
and have entrusted duty and responsibility to Revenue
Officers of gazetted cadre to issue social status
certificate, after due verification\005"
The Court held that Mahadeo Kolis are not Kolis. It entered into the
merit of the matter including the certificates issued by the school authorities
as also the findings of the Committee and the Appellate Authority. It was
stated :
"\005The Additional Commissioner as well, has minutely
gone into all the material details and found that when a
section of the society have started asserting themselves as
tribes and try to earn the concession and facilities
reserved for the Scheduled Tribes, the tricks are common
and that, therefore, must be judged on legal and
ethnological basis. Spurious tribes have become a threat
to the genuine tribals and the present case is a typical
example of reservation of benefits given to the genuine
claimants being snatched away by spurious tribes. On
consideration of the evidence, as stated earlier, both the
Committee and the appellate authority found as a fact
that the appellants are not tribe ’Mahadeo Koli’ entitled
to the constitutional benefits. In Subhash Ganpatrao
Kabade case, the approach of the Division Bench of the
High Court appears to be legalistic in the traditional
mould totally oblivious of the anthropological and
ethnological perspectives and recorded their findings
with unwarranted strictures on the approach rightly
adopted by the Scrutiny Committee and the Additional
Commissioner to be ’(funny)’ "obviously incorrect" and
"queer reasoning". Admittedly the petitioner therein, in
days preceding the Constitution, described himself in the
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service book as well as school leaving certificate as a
Hindu Koli. The High Court also found that they were
backward class but proceeded on the erroneous footing
that Mahadeo Koli was introduced for the first time
through 1976 Amendment Act and that, therefore, they
were the genuine Scheduled Tribes entitled to the
benefits. In view of the above, we cannot help holding
that the reasoning of the High Court is wholly perverse
and untenable."
In State of Maharashtra v. Milind & Ors. [(2001) 1 SCC 4] it was held
that Halba-Koshti having not been mentioned in the Scheduled Tribes
Order, were not treated to be part of Halba, stating :
"\005No doubt, it is true, the stand of the appellant as to the
controversy relating to "Halba-Koshti" has been varying
from time to time but in the view we have taken on
Question 1, the circulars/ resolutions/instructions issued
by the State Government from time to time, some times
contrary to the instructions issued by the Central
Government, are of no consequence. They could be
simply ignored as the State Government had neither the
authority nor the competency to amend or alter the
Scheduled Tribes Order. It appears taking note of false
and frivolous claims being made by persons not entitled
to claim such status, the Government of India addressed
letters and issued instructions between the period from
21-4-1969 to 1982 to impress that there should be strict
inquiry before issuance of caste certificates to persons
claiming Scheduled Caste/Scheduled Tribe status; strict
scrutiny into the caste of the parent should be effected as
a checkpoint\005"
The said decision, therefore, is an authority for the proposition that
only because a claim is made by a person that he belongs to a member of a
tribe notified to be Scheduled Tribe in terms of the provisions of the
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, no
immunity in absolute terms can be claimed.
The makers of the Constitution laid emphasis on equality amongst
citizens. Constitution of India provides for protective discrimination and
reservation so as to enable the disadvantaged group to come on the same
platform as that of the forward community. If and when a person takes an
undue advantage of the said beneficent provision of the Constitution by
obtaining the benefits of reservation and other benefits provided under the
Presidential Order although he is not entitled thereto, he not only plays a
fraud on the society but in effect and substance plays a fraud on the
Constitution. When, therefore, a certificate is granted to a person who is not
otherwise entitled thereto, it is entirely incorrect to contend that the State
shall be helpless spectator in the matter.
We, with respect, fail to appreciate the approach of the High Court as
it proceeded on the premise that once the surname of Respondent tallied
with the name of the tribe, which finds mention in one or the other entries of
the schedule appended to the 1976 Order, the same must be treated to be
sacrosanct and no enquiry in relation to the correctness of the said certificate
can be gone into by any Committee. The observations and directions of the
High Court, in our considered opinion, were not only contrary to the
judgments of the Court but also fall short of the ground realities.
Mr. Arvind Savant, the learned Senior Counsel, would place strong
reliance on a decision of this Court in Palghat Jilla Thandan Samudhaya
Samrakshna Samithi (supra) and in particular paragraphs 18 and 19 thereof,
which read as under :
"18. These judgments leave no doubt that the
Scheduled Castes Order has to be applied as it stands and
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no enquiry can be held or evidence let in to determine
whether or not some particular community falls within it
or outside it. No action to modify the plain effect of the
Scheduled Castes Order, except as contemplated by
Article 341, is valid.
19. The Thandan community in the instant case
having been listed in the Scheduled Castes Order as it
now stands, it is not open to the State Government or,
indeed, to this Court to embark upon an enquiry to
determine whether a section of Ezhavas/Thiyyas which
was called Thandan in the Malabar area of the State was
excluded from the benefits of the Scheduled Castes
Order."
The said decision must be read in the light of factual matrix obtaining
therein. Indisputably, Thandans are members Scheduled Tribe. An entry
made under the Constitution (Scheduled Castes) Order, 1950 made in terms
of Article 341 of the Constitution of India, as applicable to the State of
Kerala, specified Thandans as Scheduled Tribe as Item No. 61 thereof. The
State sought to modify the said order by issuing an order in the year 1984
stating :
"\005On October 15, 1984 the Government of Kerala
issued an order which stated that, having reconsidered the
matter in all its aspects, the 1979 order was cancelled and
"Thandans throughout Kerala would be treated as
members of Scheduled Caste as existing in the list of
Scheduled Castes of this State as per Scheduled Castes
and Scheduled Tribes Orders (Amendment) Act, 1976
and Community Certificate issued accordingly\005"
The said order was modified by another order dated 24.11. 1987, the
operative portion whereof read is as under :
"Government have again considered the matter in all
its aspects and in partial modification of the Government
order read above as second paper Government now order
that persons belonging to the Thandan Caste throughout
Kerala would be treated as members of Scheduled Caste
as existing in the list of Scheduled Castes of this State as
per the Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1976. While issuing such caste
certificate the Revenue authorities should clarify after
proper verification that the person concerned belongs to
Thandan caste and not Ezhava/Thiyya."
The question which arose for consideration before this Court was as to
whether the persons named or called Thandans in Malabar area were
intended to be covered by the 1976 Order. The findings of this Court, which
we have noticed hereinbefore, must be judged on the touchstone of the
factual matrix obtaining therein. It was held :
"21. The enquiry that was ordered by the High Court
in the order under appeal to "find out whether there was a
community called Thandan distinct from Ezhavas in
Palghat District in areas other than in the erstwhile
Chittur Taluk and also in any other place in erstwhile
Malabar District" has proceeded to a conclusion on the
basis of an interim order passed by this Court on January
16, 1989. It is not for the State Government or for this
Court to enquire into the correctness of what is stated in
the report that has been made thereon or to utilise the
report to, in effect, modify the Scheduled Castes Order. It
is open to the State Government, if it so deems proper, to
forward the report to the appropriate authority to consider
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whether the Scheduled Castes Order needs amendment
by appropriate legislation. Until the Scheduled Castes
Order is amended, it must be obeyed as it reads and the
State Government must treat Thandans throughout
Kerala as members of the Scheduled Castes and issue
community certificates accordingly."
This Court therein was not dealing with a case where a certificate had
been granted wrongly to him although he was not entitled thereto.
The question yet again came up for consideration before a
Constitution Bench of this Court in Milind (supra), wherein in no uncertain
terms it was held that the as President had the benefit of consulting the
States through the Governors of the States, no further enquiry as regards the
correctness of the entries in the order was permissible in law. The Court
further held :
"2. The Scheduled Tribes Order must be read as it is.
It is not even permissible to say that a tribe, sub-tribe,
part of or group of any tribe or tribal community is
synonymous to the one mentioned in the Scheduled
Tribes Order if they are not so specifically mentioned in
it."
Reliance has also been placed on State of Maharashtra & Others v.
Mana Adim Jamat Mandal (2006) 4 SCC 98]. The question which arose for
consideration therein was as to whether the decision rendered by this Court
in Dadaji alias Dina v. Sukhdeobabu and Others [(1980) 1 SCC 621] was
overruled by a Constitution Bench of this Court in Milind (supra). It was
held to be so. The said decision has no application whatsoever.
Reliance has also been placed in Gayatrilaxmi Bapurao Nagpure v.
State of Maharashtra and Others [(1996) 3 SCC 685] wherein this Court
referring to Madhuri Patil (supra) on the fact situation obtaining therein
opined :
"17. Applying the above test to the facts of the present
case, we are satisfied that the Committee failed to
consider all the relevant materials placed before it and
did not apply its mind to an important document "Sl. No.
9" which led the Committee ultimately to record a
finding against the appellant. By a wrongful denial of the
caste certificate to the genuine candidate, he/she will be
deprived of the privileges conferred upon him/her by the
Constitution. Therefore greater care must be taken before
granting or rejecting any claim for caste certificate.
18. The High Court without appreciating the probative
value of the documents placed before it has dismissed the
writ petition filed by the appellant by simply accepting
the conclusions reached by the second respondent
Committee. Undoubtedly, in cases of this type, the
burden heavily lies on the applicant who seeks such a
certificate. That does not mean that the authorities have
no role to play in finding out the correctness or otherwise
of the claim for issue of a caste certificate. We are of the
view that the authorities concerned must also play a role
in assisting the Committee to arrive at a correct decision.
In this case, except the documents produced by the
appellant, nothing has been produced by the authorities
concerned to arrive at a different conclusion."
The said decision, therefore, is also an authority for the proposition
that the Committee can go into the question as to whether a caste certificate
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has rightly been issued or not. The authorities concerned were also found to
have some role to play in finding out the correctness or otherwise of the
claim for issue of a caste certificate.
We may notice that in Bank of India and Another v. Avinash D.
Mandivikar and Others [(2005) 7 SCC 690], a two-Judge Bench of this
Court opined that the employee concerned having played fraud for obtaining
an appointment, should not be allowed to get the benefit thereof. [See also
Ram Saran v. I.G. of Police, CRPF & Ors. [2006 (2) SCALE 131],
Employees State Insurance Corporation v. Distilleries & Chemical Mazdoor
Union and Others [2006 (7) SCALE 171] and Sandeep Subhash Parate v.
State of Maharashtra & Ors. [2006 (8) SCALE 503].
While there are decisions and decisions in regard to the ultimate relief
granted in each case, we see no authority laying down a law that under no
circumstances an enquiry would be impermissible in law.
A serious attempt has been made before us to argue on the merit of
the matter.
The learned Senior Counsel made endeavours that we should go into
the merit of the matter and set aside the order of the Caste Scrutiny
Committee, as has been done by the High Court. We decline to do so. The
High Court although allowed the writ petitions filed by Respondent herein,
did not analyze the evidences relied upon by the Committee at all. It, as
noticed hereinbefore, proceeded principally on the basis that no enquiry was
permissible.
We, therefore, are of the opinion that merit of the matter should be
considered afresh by the High Court. We would, however, request the High
Court to consider the desirability of disposing the matters as expeditiously as
possible and preferably within a period of two months from the date of
receipt of a copy of this order. We must observe that we have not gone into
the merit of the matter and, thus, all contentions of the parties including the
question of back-wages, shall remain open. The appeals are allowed.
While the matter was pending judgment, we received letters from
Respondents urging us not to remit the matter back to the High Court. These
letters were issued presumably having regard to the observations made by us
during hearing that the High Court had not gone into the merit of the
matters. We deprecate the practice of writing letters to the judges when the
matters were pending judgment. At one point of time, we thought to initiate
the proceedings against Respondents under the Contempt of Courts Act,
1971; but we refrain ourselves from doing so. We are, however, of the
opinion that Respondents should bear and pay the costs of Appellants which
is quantified at Rs.25,000/- (Rupees twenty five only) in each case. We
direct accordingly.
CIVIL APPEAL NO.5459 of 2005 :
Mr. Arvind V. Savant, the learned Senior Counsel, states that as the
entire matter is being remitted to the High Court, he would not press this
appeal, leaving the contentions raised therein open. The appeal is dismissed.
No costs.