of Maharashtra & Ors Vs. Ravi Prakash Babulalsing Parmar & Anr  Insc
719 (31 October 2006)
Sinha & Dalveer Bhandari
W I T
H CIVIL APPEAL NOS. 5146, 5458 & 5459 OF 2005 S.B. SINHA , J :
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.
may, however, notice the factual matrix of the matter from Civil Appeal No. 789
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
preferred thereagainst before the Additional Commissioner, Tribal Development, Nagpur, was also dismissed.
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.
learned Judges of the Division Bench of the High Court delivered separate
judgments. Kharche, J. held :
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." Kochar, J., however, in his separate but
concurring judgment opined :
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.
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 Gond Mana etc. etc. in
any case, all these castes/tribes belong to a class of Haves Not and they try
to get some benefit for their livelihood" 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 :
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.
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.
The claimant must establish his right by producing proper documentary evidence.
The claimant must physically enter in witness box and swear on oath."
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 (Regulation of issuance and verification
of) Caste Certificate Act, 2000, it was directed :
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.
Committees should comprise of the Judicial Officers of the District Judges
cadre and not less.
have a large number of retired Judicial Officers who can be assigned this duty.
All the Scrutiny Committees should be brought under the control and supervision
and within the purview of Art. 235 of the Constitution of India.
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.
however, with respect to the learned judges, record our disapproval to the
observations made and directions issued in this behalf.
Caste Scrutiny Committee is a quasi-judicial body. It has been set up for a
specific purpose. It serves a social and constitutional purposes.
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.
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
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
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.
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.
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.
with respect, do not agree with the conclusion of the High Court 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
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
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 :
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" 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 :
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 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,
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" 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.
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.
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.
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 :
These judgments leave no doubt that the Scheduled Castes Order has to be
applied as it stands and 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.
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 :
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" The said order was modified by
another order dated 24.11. 1987, the operative portion whereof read is as under
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 :
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 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
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 :
The Scheduled Tribes Order must be read as 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
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 :
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
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.
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 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.
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].
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.
serious attempt has been made before us to argue on the merit of the matter.
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.
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.
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.
APPEAL NO.5459 of 2005 :
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.