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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.