Balu Sonaba Bhosale Vs. State of Maharashtra and ors. - Court Judgment

J.G. Chitre, J.

1. Heard. The petitioner is hereby assailing the correctness, propriety and legality of the order which has been passed by the Committee for Scrutiny and Verification of Tribe Claims, Pune, while making the scrutiny of the caste certificate produced by the petitioner Shri Balu Sonaba Bhosale. At the time of recruitment the petitioner has produced Caste Certificate showing that he belongs to tribe 'Kokani'- S. T. (Scheduled Tribe). The said Committee scrutinised the caste certificate given to the petitioner. The petitioner produced the following documents in support of his claim that he belongs to said Scheduled Tribe. Those documents can be enumerated as mentioned below.

1. Xerox copy of the Primary School Leaving certificate bearing Register No. 126101 dated 3-5-1974 issued by Head Master, Poona Corporation School No. 31, Poona.

2. Xerox Copy of the Primary School Leaving Certificate bearing No. 10894 dated 7-9-1979 issued by the Pune Corporation School No. 24. 3. Xerox copy of the Caste Certificate bearing No. Caste/SR/2100/79 dated 21-6-1979 issued by the Tahsildar and Executive Magistrate, Pune City.

2. He produced the following documents in respect of his relatives which can be enumerated as below.

1. Xerox copy of the School Leaving Certificate bearing No. 271 dated 17-9-1975 issued by the Superintendent, Shri Shivaji Maratha High School, Poona 2 in respect of 'Dattatrya Baban Kadam, Candidate's maternal cousin brother.'

2. Xerox copy of the caste Certificate bearing No. Caste/SR/ST/11/1982 dated 25-1-1982 issued by Tahsildar and Executive Magistrate, Poona City, Poona in respect of Dattatraya Baban Kadam, Candidate's maternal cousin brother.

3. After scrutiny, the Committee expressed its opinion which can be mentioned for the purpose of making the controversy clear.

1. Documents quoted at Sr. Nos. 1 to 4 are School leaving Certificates of candidate and his relatives wherein caste is recorded 'Kokani'. These documents do not carry the evidential value so far as the caste claim is concerned for the reason stated below.

(a) As per instructions from the Government of India, Ministry of Home Affairs, Letter No. 35/172-RU(SCT/V) dated 2-5-1975, it has been mentioned where a person claims to belong to Scheduled Caste/Scheduled Tribe by birth, it should be verified.

(I) that the person and his parents actually belong to the community claimed;

(II) that this community is included in the Presidential order specifying the Scheduled Caste/Scheduled Tribe in relation to the concerned State;

(III) that the person belong to that State and to the area within that State in respect of which the community has been scheduled.

4. The Committee opined that the documents quoted at Sr. Nos. 3 and 5 are the caste certificates pertaining to the candidate and his relatives issued by the Executive Magistrate, Poona City. These documents do not constitute the basic documentary evidence as such so far as the tribe claim is concerned, because the native place of the candidate is village 'Kajund', Taluka Chiplun, Dist. Ratnagiri. Since the candidate's family comes from the geographic area of Kokan, he is described as 'Kokani' in the School records.'Kokana or Kokani' is tribe notified as Scheduled tribe community only in the geographical area of Dhule, Nasik and Thane Districts. People from Kokana or Kokani tribe do not reside in the district of Ratnagiri, Sindhudurg and Raigad Districts. The Committee pointed out that at time of personal hearing the candidate's mother promised to produce the School leaving certificate of candidate's uncle Shri Atmaram Bhosale but the same was not produced till the date when the order under challenge was passed. The Committee pointed out that in view of the rule of natural justice, the candidate along with his father/elder person was called for personal hearing on 21-9-1988 and they were given full opportunity of establishing the tribe of the petitioner by way of traits, characteristics, customs etc. During the course of personal hearing the candidate has furnished the following information.

1. The original native place of his family has been reported as 'Kajund,' Tal. Chiplun, District Ratnagiri.

2. The relatives of the candidate's are belonging to Ratnagiri district and Pune City.

3. The mother tongue and dialect of his community is reported as Kokani.

4. They are unknown about the Dave, Padkai, Deo-barash, Wagh-Baras etc. These are the prevalent amongst them.

5. They have denied any kind of relations with the Kokani Scheduled Tribes.

5. On these things, the Committee concluded that it is evident that the petitioner had utterly failed to establish his social cultural affinity and ethnic linkage towards Kokani Scheduled Tribes and therefore, the Scrutiny Committee arrived at the conclusion that the candidate (present petitioner) does not belong to 'Kokani'. Hence, he was treated to be a candidate not belonging to Scheduled Tribes and he was not considered eligible for recruitment as candidate coming from Scheduled Tribes.

6. The learned counsel for the petitioner pointed out the provisions of the Scheduled Caste and Scheduled Tribes orders (Amendment) Act, 1956 in respect of his claim and submitted that by virtue of the said amendment the area restriction has been lifted. Unfortunately for the petitioner that is not so. Section 1 deals with short title, Section 2 deals with definitions, Section 3 deals with amendment of Scheduled Caste order mentioned in the said section, Section 4 deals with the amendment of Scheduled Tribes or previous orders, Section 5 deals with the determination of population of Scheduled Castes and Scheduled Tribes. It deals with redetermination of the population of Scheduled Castes and Scheduled Tribes made in Section 42 of the State Reorganisation Act, 1956 or in Section 15 of the Bihar and West Bengal (Transfer Territories) Act, 1956. It is provided by Sub-section (2) that the population figures so notified be taken to be the relevant population figures as ascertained at the last census and shall supersede any figures previously published. Sections 6 and 7 deal with Amendment of Orders of the former Delimitation Commission. Section 7 deal with power to make rules. It nowhere provides that the areas notified as Dhule, Nasik and Thane Districts in respect of 'Kokana' and 'Kokani' has been made wider.

7. The learned counsel for the petitioner placed reliance on the judgments of the Division Bench of this Court in following two cases :

1. Dipak Krishna Sable v. State of Maharashtra and Ors., Writ Petition No. 3709 of 1998. 2. Vishnu Rama Patil v. The State of Maharashtra and Ors. : Writ Petition No. 3671/1997.

8. In Dipak Krishana Sable's case the point which was considered by the Division Bench was the ground which was set up for invalidating the caste certificate was that the place of residence of the petitioner was outside the scheduled area and therefore, the Magistrate was not competent to issue caste certificate. The Division Court opined that the ground assigned cannot be justified in view of the provisions of Amending Act 108 of 1976 which removed the area restriction with effect from 27-7-1997. In view of the aforesaid Amending Act, all Tribes, whether residing in or outside the Scheduled Area are entitled for concession and privileges conferred on Scheduled Tribes. The Court did not consider the material, may be, there may not have been arguments on those points. Same is the case in respect of Vishnu Rama Patil's case. It has been held by the Supreme Court in the matter of Gayatri Laxmi Bapurao Nagpure v. State of Maharashtra and Ors., reported in 7996 3 SCC 686 that the burden of proof that the candidate belong to Scheduled Caste or Tribes lies on the candidate. The Supreme Court pointed out that the Scrutiny Committee has to be careful before granting or rejecting any claim for caste certificate. It pointed out that the documents which need to be considered are certificate issued by Executive Magistrate, School Certificate of the appellant or her relatives, and caste certificate issued to the candidate. In the same judgment Supreme Court pointed out that though in case of such tribes the burden heavily lies on the applicant who seeks such certificate to prove that he belongs to the same caste or tribe, but that does not mean that the authorities had no role to play in finding out the correctness or otherwise of the claim for issue of caste certificate. The authorities concerned must also play role in assisting the Committee to arrive at correct decision.

9. In the present case the Scrutiny Committee has considered every important facet of the matter. It examined the caste certificate of the candidate (present petitioner), the School Leaving certificate given by Primary School. Poona Corporation School No. 31, Primary School Leaving Certificate bearing No. 10894 given by Poona Corporation School No. 24, School Leaving Certificate bearing No. 271, dated 17-9-1975 given in favour of the petitioner's maternal cousin namely Dattatraya Baban Kadam, so also caste certificate given by Tahsildar -- Executive Magistrate, Pune City to Dattatray Baban Kadam candidate's maternal cousin. It is pertinent to note that though sufficient opportunity was given to the mother of the petitioner to produce school leaving certificate of petitioner's uncle, it was not produced till the order under challenge was passed. Not only that by following rule of natural justice the Committee gave interview to the petitioner and his father by calling them for interview on 21-9-1988 and they were given full opportunity to establish that petitioner belongs to Scheduled Tribe 'Kokana', Kokani'. The order shows that they were interrogated on its traits, characteristics, customs of said Scheduled Tribe but they failed to satisfy the said Committee. In fact they showed their ignorance about Goddess, worship in the said Scheduled Tribe and the important festivals celebrated by the said Caste.

10. Trend is growing amongst members of public to grab the opportunities of service or educational facilities granted and secured by Constitutional provisions to Scheduled Caste and Scheduled Tribes by following novel, modern and clever tactics and here is a good example of that. The person residing in Punjab is commonly known as 'Punjabi', a person residing in Gujarat is commonly known as 'Gujarathi', a person residing in Bengal is commonly known as 'Bengali' a person residing in Vidharbha is generally known as 'Vidharbhiya' a person residing in the local area of Malvan is commonly known as 'Malvani' like that the petitioner and his family were residing in village Kajund, Tal. Chiplun, District Ratnagiri, and therefore, must have been called 'Kokani'. That 'Kokani' is different from 'Kokana' or Kokani as contemplated by the Schedule embodied in constitution which recognises as Scheduled Tribes. The persons belonging to Scheduled Tribe 'Kokana or Kokani' generally and in majority reside in local areas of Dhule District, Nasik District and Thane District. It is a matter of experience that they worship Goddess Paadkai they celebrate festivals of 'Deobaras', 'Wagh-baras'. As the petitioner's family was not belonging to 'Kokana' or 'Kokani' they were not knowing anything about it and therefore, though sufficient opportunity was given to them, they failed to exhibit their knowledge about these things which are very common in Kokana or Kokani. The petitioner has taken advantage of the fact that his parents were residing in village Kajund, Tal. Chiplun, Dist. Ratnagiri and were called 'Kokani' like 'Malvani'. This style of misusing the certificate needs to be deprecated.

11. Apart from that the Scrutiny Committee has examined all relevant facets of the matter. Thereafter it has given the opportunity of hearing to the petitioner and his parents but all of them failed to establish that petitioner belong to Scheduled Tribe Known as Kokana or Kokani. It is pertinent to note that mother of the petitioner did not produce the caste certificate, school leaving certificate in respect of his uncle. That itself is eloquent. The Supreme Court has pointed out in Nagpure's case that the burden heavily lies on the candidate to prove that he belong to a particular Scheduled Caste or Scheduled Tribe. In this case the petitioner utterly failed to prove it. The Scrutiny Committee performed its duty in accordance with the provisions of law of judgment of Supreme Court in Nagpure's case. This Court does not find that the said order needs to be set aside. Thus petition stands dismissed with costs for giving alarm to like minded persons. Interim order stands vacated.