ORAL JUDGMENT (Per Smt. Vasanti A. Naik, J.) Whether a person would be entitled to a caste validity certificate on the basis of the caste validity certificate granted to his blood relative though the overwhelming evidence on record may falsify the caste claim of the person is the issue involved in these petitions. Since the issue involved in both the petitions is identical and since the petitioners in the writ petitions are real brothers and their caste claims have been rejected by the Scrutiny Committee, the two petitions are heard together and are decided by this common judgment. Even otherwise, by an order dated 13/12/2010 in Writ Petition No.4634/2009, the said writ petition was directed to be decided with Writ Petition No.1809/1998.
At the request made on behalf of the petitioner in Civil Application No.664/2012, Writ Petition No.4634/2009 was directed to be heard on 09/04/2012. The counsel for the petitioners was heard at length on 12/04/2012 and 13/04/2012. Since the Court did not find favour with the submissions made on behalf of the petitioners, the counsel for the petitioners sought time till 16/04/2012 to take instructions in regard to withdrawal of the petitions. However, after the change in assignment on 16/04/2012, none appeared for the petitioners. The matter was adjourned to 17/04/2012 to grant an
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opportunity to the petitioners. However, none appeared for the petitioners on 17/04/2012 also. No adjournment was sought on behalf of the petitioners on 16/04/2012 and 17/04/2012. The matter was adjourned to 18/04/2012 as a last chance. Still none appeared on behalf of the petitioners on 18/04/2012. The impugned judgments and the relevant documents were perused by us with the assistance of the counsel for the respondents. The counsel for the respondents were heard. The original record was also perused. In the aforesaid backdrop we proceeded to decide the petitions.
It was the claim of both the petitioners that they belong to 'Halba Tribe' which is recognized as a Scheduled Tribe. The caste certificates of the petitioners were sent to the Caste Scrutiny Committee for verification. Along with the caste certificates, the petitioners had produced certain other documents including the judgment in Writ Petition No.166/1992 in the case of Hemangi Bhanarkar, the real sister of the petitioners, the judgment in Writ Petition No.3429/1993 in the case of Kalpita Bhanarkar, also the real sister of the petitioners and the judgment in Writ Petition No.10/1985 in the case of Vina Bhanarkar, the paternal aunt of the petitioners. Mainly by relying on the three judgments rendered by the High Court in the cases of the real sisters and the paternal aunt of the petitioners, the petitioners had sought the validation of their caste claims. Certain other documents like the caste
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certificates and the school and college leaving certificates of the recent times were also placed by the petitioners before the Scrutiny Committee. Though the college leaving certificate and certain other documents in the case of petitioners' father Narayan were placed on record, the primary school record of their father was not produced before the Scrutiny Committee. The Scrutiny Committee was not satisfied with the documents and information furnished by the petitioners and, therefore, conducted the home and school enquiry through the Police Vigilance Cell. The enquiry revealed that several documents of the years ranging from 1937 to 1956 and showing the entries 'Koshti' and 'Halba-Koshti'' in the caste column were concealed by the petitioners and were not produced before the Scrutiny Committee. The Vigilance Enquiry revealed that the entry in the extract of the primary school register of the father of the petitioners by name Narayan, was recorded as 'Koshti' on 26/06/1950. Secondly, the declaration by the paternal grandfather of the petitioners, dated 30/06/1937, that he was 'Koshti', was noticed. Thirdly, the primary school record of the two paternal uncles of the petitioners by name Krushna and Yamaji also showed the entry 'Koshti' in the caste column. The entry in the case of Krushna was recorded on 28/04/1944. Similarly, the primary school admission register in the case of the paternal aunts of the petitioners by name Mahindrabai and Sitabai recorded their caste as 'Halba-Koshti' in the caste columns. These
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entries were recorded in the year 1955. Lastly, the entry in the caste column of the cousin brother of the petitioners by name Sadashiv Gajanan Bhanarkar was 'Halba-Koshti'. The entry was made on 10/07/1956. Considering these documents showing the caste entries of the near blood relatives of the petitioners as 'Koshti' and 'Halba-Koshti' during the years ranging from 1937 and 1956, the petitioners were asked to show cause in regard to the documents concealed by the petitioners. The Police Vigilance Cell Report was served on the petitioners. The petitioners were given ample opportunity to explain the adverse entries in the case of their near relatives. The father of the petitioners, Narayan also appeared before the Scrutiny Committee to explain those entries. The petitioners and their father admitted the existence of such entries, but explained that the entries were recorded on the basis of the occupation carried on by them. The Scrutiny Committee, however, did not believe the case of the petitioners as 'Koshti' is an independent caste classified as an Other Backward Class whereas 'Halba' is a Scheduled Tribe and there was no question of wrongful recording of those seven entries. Narayan, the father of the petitioners, was also not able to explain as to how and when the subsequent change in the entries in regard to his caste from 'Koshti' to 'Halba' was effected. The petitioners also failed in the affinity test and the Committee invalidated the caste claim of the petitioners.
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We had called for the record of the Caste Scrutiny Committee in both these petitions and have perused the same in detail. On a perusal of the same, we have noticed that after the Vigilance Enquiry was conducted, the copies of the Vigilance Reports were furnished to each of the petitioners and they were given ample opportunity to explain the adverse entries, in the case of their father, their paternal uncles, their paternal aunts and their cousin brother. Though a ground has been raised in Writ Petition No.1809/1998 that the Vigilance Report was not furnished to the petitioner in that case and the petitioner was not granted an opportunity to refute the adverse documents, we find on a perusal of the record that this was not so as the petitioner has admitted the acceptance of the Vigilance Report. We find on a perusal of the record that in both the cases adequate opportunity was granted to the petitioners to explain the adverse entries.
In these cases, the petitioners have mainly relied on the three judgments of this Court for seeking the caste validity certificate in their favour. It would be necessary to refer to these judgments to find out as to whether it would be necessary to grant a caste validity certificate in favour of the petitioners on the basis of the same, in view of the law laid down by this Court in the judgment reported in 2010(6) Mh.L.J. 401 (Apoorva d/o Vinay Nichale -vs- Divisional Caste certificate Scrutiny Committee No.1 and others). It is the case of the petitioners that it
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would be necessary to grant a caste validity certificate in favour of a claimant when his near blood relative is granted a caste validity certificate. The petitioners have mainly relied on the judgment in Writ Petition No.10/1985 in the case of Vina Bhanarkar dated 9thof September, 1985 whereby it is declared that Vina Bhanarkar belongs to Halba Scheduled Tribe. The judgment is a short one and the same reads, as under -
"1) The petitioner had applied for admission to the Government Medical College for the first M.B.B.S., against a seat reserved for the Scheduled Tribe candidate. The Caste Certificate issued by the Executive Magistrate shows her as "Halba", school leaving certificate also shows her as "Halba" and the said certificate is invalidated by order passed before 8th March, 1985.
In view of our judgment in Writ Petition No.2944/1984 decided on 4/5/6th September, 1985 (Milind vs. State of Maharashtra and others), the impugned order is set aside. It is declared that the petitioner belongs to
"Halba" Scheduled Tribe. If otherwise qualified in merit list of reserved category, the petitioner be given admission.
2) Rule made absolute in the above term. No order as to costs."
Thus, a reading of the judgment in Writ Petition No.10/1985 clearly shows that the paternal aunt of the petitioners by name Vina Bhanarkar has been declared as Halba Scheduled Tribe on the basis of
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the judgment in the case of Milind vs. State of Maharashtra in Writ Petition No.2944/1984.
The judgment in the case of Milind Sharad Katware and others vs. State of Maharashtra and others dated 4/5/6thof September, 1985 has been reported in 1987 Mh.L.J. 572. It was observed by the Division Bench of this Court in the said judgment that Halba/Halbi Koshti is sub-division of tribe as per Entry 19 of the Constitution (Scheduled Tribes) Order, 1950 relating to State of Maharashtra. According to the learned counsel for the Scrutiny Committee, though the judgment in the writ petition filed by Vina Bhanarkar, was based on the judgment reported in 1987 Mh.L.J. 572, the said decision was overruled by the Hon'ble Supreme Court in the judgment reported in
2001(1) Mh.L.J. 1 (State of Maharashtra vs. Milind and others. The Hon'ble Supreme Court was pleased to set aside the judgment of this Court in the case of Milind vs. State of Maharashtra and it was held by the Hon'ble Supreme Court that Halba Koshti Caste is not a sub-tribe within the meaning of Entry 19 (Halba-Halbi) of the Constitution (Scheduled Tribes) Order, 1950 relating to State of Maharashtra. Though the judgment in the case of Milind vs. State of Maharashtra
was set aside by the Hon'ble Supreme Court, there was no occasion for this Court to reconsider the judgment in Writ Petition No.10/1985 in the case of Vina Bhanarkar, the paternal aunt of the petitioners. Since
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the judgment in the case of Vina Bhanarkar was based on the judgment in the case of Milind vs. State of Maharashtra and since the said judgment in Writ Petition No.2944/1984 was overruled by the Hon'ble Supreme Court, no fault can be found with the approach of the Scrutiny Committee in not granting a validity certificate in favour of the petitioners on the basis of the judgment in the case of Vina Bhanarkar in Writ Petition No.10/1985.
Similarly, the petitioners cannot secure the validity certificate on the basis of the judgment in the case of Hemangi Bhanarkar, the real sister of the petitioners in Writ Petition No.166/1992, as the petition of Hemangi Bhanarkar was allowed by the judgment dated 9thof September, 1992 on the basis of the judgment in the case of her paternal aunt Vina Bhanarkar in Writ Petition No.10/1985 which in turn was based on the judgment in the case of Milind vs. State of Maharashtra. It appears that the judgment in the case of Hemangi Bhanarkar in Writ Petition No.166/1992 is based on the judgment in the case of Milind vs. State of Maharashtra and the judgment in the writ petition filed by Vina Bhanarkar bearing Writ Petition No.10/1985. Similarly, Writ Petition No.3429/1993 filed by Kalpita Bhanarkar, the real sister of the petitioners, was also allowed by the judgment dated 25thof January, 1994 and the said judgment like the previous judgment was also based on the judgment in the case of Vina Bhanarkar
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in Writ Petition No.10/1985. Hence, it appears that the caste certificates of each of the near blood relatives of the petitioners came to be validated on the basis of the judgment in the case of Milind vs. State of Maharashtra dated 4/5/6thof September, 1985 in Writ Petition No.2944/1984, which was overruled by the Hon'ble Supreme Court by the judgment reported in 2001(1) Mh.L.J. 1 (State of Maharashtra vs. Milind and others). Thus, all the three judgments in the case of the near blood relatives of the petitioners are based on the judgment in the case of Milind vs. State of Maharashtra, which is overruled by the Hon'ble Supreme Court by the judgment reported in 2001(1) Mh.L.J. 1 (State of Maharashtra vs. Milind and others). Though the judgment in the case of Ms.Vina Bhanarkar, the paternal aunt of the petitioners, is not expressly overruled, it stands impliedly overruled in view of the judgment in the case of State of Maharashtra vs. Milind and others
reported in 2001(1) Mh.L.J. 1. It is in this background, that we are required to consider whether it would be necessary to validate the caste claim of the petitioners merely because the blood relatives have been granted a caste validity certificate. It is observed by this Court in the case of Apoorva d/o Vinay Nichale vs. Divisional Caste Certificate Scrutiny Committee No.1 and others reported in 2010(6) Mh.L.J. 401 that if the relationship by blood is established or not doubted, and one such relative has been
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confirmed as belonging to a particular caste, there is no reason why public time or money should be spent in the committee testing same evidence and making the same conclusion unless of course the Committee finds on the evidence that the validity of the certificate of such relation has been obtained by fraud. In the instant case, the primary school record of the father of the petitioners by name Narayan was concealed by the petitioners and on an enquiry by the Vigilance Cell, it was revealed that the entry in the case of their father was recorded as 'Koshti'. The entry was of the year 1950 and had great probative value. Though the subsequent caste entries were 'Halba', the oldest entry in the primary school record was indeed a weighty piece of evidence as compared to the others. Moreover, the father of the petitioners was not able to explain to the Committee as to when and in what manner the entry was changed from 'Koshti' to 'Halba'. Similarly, the petitioners had admitted about the existence of the adverse entries in the case of their paternal uncles, paternal aunts and cousin brother, but the petitioner in Writ Petition No.4634/2009 had explained those adverse entries by saying that the profession of their caste was recorded in those documents. It was the case of the petitioner in Writ Petition No.1809/1998 that those entries were recorded by the Headmaster. In fact, it was necessary for the petitioners to have produced those old documents ranging from the years 1937 to 1956 before the Scrutiny Committee. Since those entries could have adversely affected the case
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of the petitioners, those relevant documents were deliberately suppressed by the petitioners and on their production by the Vigilance Cell, the petitioners were not able to satisfactorily explain those entries. Apart from the aforesaid overwhelming documentary evidence, which was more weighty than the other documents of comparatively recent origin, the petitioners had also failed in the affinity test and were unable to prove their affinity towards Halba Scheduled Tribe. It is in this background, that the Scrutiny Committee did not rely on the judgments rendered by this Court in the case of Vina Bhanarkar, Kalpita Bhanarkar and Hemangi Bhanarkar, the paternal aunt and the real sisters of the petitioners as those judgments were rendered by this Court only on the basis of the judgment in the case of Milind vs. State of Maharashtra which was overruled by the Hon'ble Supreme Court by the judgment reported in 2001(1) Mh.L.J. 1 (State of Maharashtra vs. Milind and others). Moreover, the adverse documents revealed in the Vigilance Enquiry were not a part of the record in the cases of Vina, Kalpita and Hemangi Bhanarkar. The Scrutiny Committee rightly did not give much weightage to the judgments in the cases of the real sisters and the paternal aunt of the petitioners as though these judgments were not expressly overruled by the Hon'ble Supreme Court, they stood impliedly overruled in view of the fact that they were based on the judgment in the case of Milind vs. State of Maharashtra, which was overruled by the Hon'ble Supreme Court by the judgment reported
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in 2001(1) Mh.L.J. 1 (State of Maharashtra vs. Milind and others). By independently applying the mind to the material on record, the Scrutiny Committee was of the view that the old and adverse entries in the documents relating to the father, the paternal uncles, the paternal aunts and the paternal cousin brother of the petitioners out weighed the entries in the documents of recent origin. In the facts of the case, no fault can be found with the approach of the Scrutiny Committee in invalidating the caste claim of the petitioners. It would not be necessary in the cases like the present one to grant a caste validity certificate to a claimant when the Committee or the Court validating the caste claim of his near blood relatives has not considered the voluminous adverse documents which form a part of the record in the claimant's case. We hereby uphold the judgments passed by the Scrutiny Committee and dismiss the writ petitions.
Rule stands discharged.
JUDGE JUDGE
KHUNTE
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