Kumari
Madhuri Patil Vs. Addl. Commissioner [1994] INSC 445 (2 September 1994)
Ramaswamy,
K. Ramaswamy, K. Venkatachala N. (J)
CITATION:
1995 AIR 94 1994 SCC (6) 241 JT 1994 (5) 488 1994 SCALE (3)935
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by K. RAMASWAMY, J.- Leave granted.
2. The
appellants are Suchita and Madhuri, daughters of Laxman Pandurang Patil. Their
grandfather was Panduranga Patil. Laxman Patil was admitted in the school in
the year 1943. In his school admission register and his school and college
certificates his caste was shown as 'Hindu Koli'.
Suchita
had applied through her father, Laxman Patil to the Tahsildar, Andheri on 30-11-1989 for issuance of caste certificate as 'Mahadeo Koli'
a Scheduled Tribe. The Sub- Divisional Officer, Bombay Suburban District by his
proceeding dated 22-6-1989 refused to issue caste certificate sought for by Ms Suchita
and informed her that she was not a Scheduled Tribe 'Mahadeo Koli'. She filed
an appeal before the Additional Commissioner, Konkan Division, Bombay. As she had applied for admission
into the MBBS course and the time for her admission was running out, she filed
Writ Petition No. 3516 of 1990 in the High Court to direct the Additional
Commissioner to dispose of her appeal and to further direct to the Dean of
D.YC. Naik Medical College to permit her to appear for
interview and admit her in the college if she was found fit. It is not in
dispute that she filed a 247 copy of the judgment in Subhash Ganpatrao Kabade
v. State Of Maharashtra1, wherein 'Koli' was held to be 'Mahadeo
Koli', before the Additional Commissioner and also in the High Court. Because
of the directions of the High Court she was admitted in the MBBS course and she
is continuing her studies. The Additional Commissioner directed the Tahsildar
to issue the certificate and accordingly issued to Miss Suchita the certificate
as Scheduled Tribe. Miss Suchita applied to the Verification Committee for
confirmation of her status as Scheduled Tribe. Madhuri applied for the issuance
of Scheduled Tribe certificate before the Divisional Executive Magistrate,
Greater Bombay, enclosing the order passed by the High Court in Writ Petition
No. 3516 of 1990, dated 4-12-1990, in favour of her sister Suchita, which was
issued on 23-8-1990 declaring her status to be 'Mahadeo Koli' and then she got
the admission into BDS in the year 1992. Thereafter, she applied to the
Verification Committee for confirmation. The proceeding by the Verification
Committee was jointly conducted into the claims of the appellants, initiated on
8-12-1989, the father of the appellants was called upon to furnish in the
prescribed form the detailed information regarding his family background,
ancestry; and anthropology of 'Mahadeo Koli', Scheduled Tribe, to verify the veracity
of his claim of status as ST.
3. 'Mahadeo
Koli' was declared to be a Scheduled Tribe by Bombay Province as early as 1933 and the President
of India declared in 1950 under Article 342, in consultation with the
Government of Bombay (Maharashtra) and as amended from time to time. Laxman
submitted the particulars along with his school and college certificates,
junior college certificate and school certificates of the appellants, the
certificates of his sister and appellants' maternal aunt, Jyotsana Pandurang Patil
dated 3-3-1978 and maternal uncle Balakrishna Pandurang Naik dated 22-10-1954
and a statement by the Caste Association. The Committee in their order dated
26-6-1992 considered the entire evidence placed before them, the particulars
furnished by their father in the pro forma on their ancestry and other
anthropological particulars and after hearing their counsel, found that the
appellants are 'Koli' by caste which is recognised as Other Backward Class,
i.e., OBC in the State and that they are not 'Mahadeo Koli', the Scheduled
Tribe and their claim for that social status was accordingly declared
untenable. The certificates issued by the respective Executive Magistrates were
cancelled and confiscated. Their appeal provided under the Rules too was heard
by the Additional Commissioner in Caste Appeal No. 11 of 1992 who by an
elaborate order dated 30-4-1993 found that the certificate issued
in favour of Balakrishna Pandurang Naik, maternal uncle, was from a Magistrate,
Greater Bombay, who had no jurisdiction and was issued social status
certificate without proper scrutiny.
The
certificate issued to Jyotsana by the Judicial Magistrate was on the basis of
the school leaving certificate, ration card etc. and that, therefore, it does
not provide any probative value to their status as Scheduled 1 WP No. 438 of
1985 248 Tribe, the entries in school and college certificates of the
appellants are not conclusive.
4.It
is obvious that Judicial Magistrate has no jurisdiction to issue caste
certificate and it is a void certificate.
The
entries in the school certificate of the father of the appellants, Laxman Patil,
being pre-independence period, it bears "great probative value"
wherein he declared himself to be 'Hindu Koli' which is now recognised as a
backward class.
The
caste affirmation certificate issued by the Samaj "Caste Association"
consists of these very communities who seek to get the status as Scheduled
Tribes. It also does not, therefore, bear any probative value. School
certificates and college certificates in favour of the appellants are the
subject of enquiry, therefore,do notbear any value and independently their
status is to be considered.
5.The
Committee as well as the Additional Commissioner relied upon a reportof expert
committee which had gone into the sociology, anthropology and ethnology of the
Scheduled Tribes including 'Mahadeo Koli' which formed the basis for the pro
forma questionnaire prepared by the Government and as given to and answered by
the father of the appellants. On the basis of the information furnished by the
father of the appellants and the anthropological and ethnological findings in
that behalf, the Additional Commissioner, in our view rightly, held that an
argument of social mobility and modernisation often alluringly put forth to
obviate the need to pass the affinity test is only a convenient plea to get
over the crux of the question.
Despite
the cultural advancement, the genetic traits pass on from generation to
generation and no one could escape or forget or get them over. The tribal
customs are peculiar to each tribe or tribal communities and are still being
maintained and preserved. Their cultural advancement to some extent may have modernised
and progressed but they would not be oblivious to or ignorant of their customary
and cultural past to establish their affinity to the membership of a particular
tribe. The Mahadeo Koli, a Scheduled Tribe declared in the Presidential
Notification, 1950, itself is a tribe and is not a sub-caste. It is a hill
tribe, may be like 'Koya' in Andhra Pradesh. Kolis, a backward class, are
fishermen by caste and profession and reside mostly in Maharashtra coastal area. Kolis have different
sub-castes.
Mahadeo
Kolis reside in hill regions, agriculture, agricultural labour and gathering of
minor forest produce and sale thereof is their avocation. Therefore, the
cancellation of the social certificate issued by the Executive Magistrates
concerned by the Scrutiny Committee was legal.
6. The
appellants' Writ Petition No. 1849 of 1993 was dismissed by the Division Bench
by its order dated 17-8-1993 with brief reasons. Shri Ganesh,
the learned counsel for the appellants contended that in the affidavit filed by
the appellant's father before the Verification Committee he has explained the
circumstances in which he came to be described as Hindu Koli. Prior to 1950,
there was no necessity to describe sub-caste. For the first time in 1976 under
the Scheduled Castes Scheduled Tribes (Amendment) Act, 1976, Mahadeo Koli was
introduced as a Scheduled Tribe in the State of Maharashtra. The certificates issued to the maternal uncle Balakrishna Naik
249 as Mahadeo Koli in the year 1954 and entries in his service record and to
maternal aunt, Jyotsana in the year 1979 probabilise the omission to describe Laxman
Patil as Mahadeo Koli, though they, as a fact, belong to Scheduled Tribe. In
the school registers the appellants had enjoyed the status as Scheduled Tribe
which provides probative value. The Committee, the Additional Commissioner and
the High Court had not appreciated the evidence in proper perspective before
declining to confirm the social status of the appellants as Scheduled Tribes
and the High Court ought to have gone into these aspects as was done in Subhash
Ganpatrao Kabade casel. it is further contended that Suchita has completed her
final year course of study. Madhuri is in midway and that, therefore, justice
demands that their education should not be dislocated with the denial of the
social status as Scheduled Tribes. The sheet-anchor for the counsel's argument
is the judgment of the Division Bench of the Bombay High Court in Subhash Ganpatrao
Kabade case'. We find no force in the contentions.
7.
From the counter-affidavit filed by the State which has not been disputed by
filing any rejoinder and as is borne out from the public notification issued by
the President in the year 1950 in exercise of the power under Article 342 read
with Article 366(25) of the Constitution that Mahadeo Koli is declared as a
Scheduled Tribe. Article 366(25) defines Scheduled Tribes, as meaning such
tribes or tribal communities or parts of or groups within such tribes or tribal
communities as are declared under Article 342 to be Scheduled Tribes for the
purposes of the Constitution.
Article
342 gives power to the President to specify the tribe with respect to any State
or Union Territory, after consultation with the Governor where it is a State,
by public notification, specify the tribes or tribal communities or parts of or
groups within tribes or tribal communities which shall, for the purposes of the
Constitution, be deemed to be Scheduled Tribes in relation to that State or
Union Territory, as the case may be.
8. In Marri
Chandra Shekhar Rao v. Dean, Seth G.S. Medical College2, this Court declared
that subject to the law made by Parliament under sub-section (2) of Section
342, the tribes or tribal communities or parts of or groups within tribes or
tribal communities specified by the President by a public notification shall be
final for the purpose of the Constitution. They are the tribes in relation to
that State or Union Territory and that any tribe or tribes or tribal communities or parts
of or groups within such tribe or tribal communities, not specified therein in
relation to that State, shall not be Scheduled Tribes for the purpose of the
Constitution. The father of one Chandra Shekhar Rao who hailed from Tenali in Guntur
District of Andhra Pradesh is a Settibalija by caste which is recognised as a
backward class. His father obtained a certificate from the Tahsildar, Tenali that
he belonged to Scheduled Tribe and had got an appointment in a public
undertaking of Bombay.
On the
basis of social status certificate obtained by his father and entries in
service record of his father, he applied for admission into medical 2 (1990) 3
SCC 130: (1990) 14 ATC 671 250 college as Scheduled Tribe. When he was not
admitted, he filed the writ petition in this Court under Article 32 seeking a
declaration that Settibalija though was not declared to be Scheduled Tribe in Maharashtra
it was a Scheduled Tribe for the purpose of the Constitution and that he was
entitled to the admission into the medical college on the basis of his social
status as a Scheduled Tribe. This Court did not uphold the contention. This
Court held that the declaration by the President by a public notification in
relation to a State in consultation with the Governor of that State is
conclusive and court cannot give such a declaration. The same view was
reiterated by another Constitution Bench in Action Committee on issue of Caste
Certificate to SCs and STs in the State of Maharashtra v. Union of India3.
9. The
Preamble to the Constitution promises to secure to every citizen social and
economic justice, equality of status and of opportunity assuring the dignity of
the individual. The Scheduled Tribes are inhabitants of intractable terrain
regions of the country kept away from the mainstream of national life and with
their traditional moorings and customary beliefs and practices, they are
largely governed by their own customary code of conduct regulated from time to
time with their own rich cultural heritage, mode of worship and cultural ethos.
The Constitution guarantees to them, who are also Indian citizens, equality
before law and the equal protection of law. Though Articles 14 and 15(1)
prohibit discrimination among citizens on certain grounds, Article 15(4)
empowers the State to make special provisions for advancement of Scheduled
Castes and Scheduled Tribes. Article 16(1) requires equality of opportunity to
all citizens in matters of appointments to an office or a post under the Union or a State Government or public undertakings etc.
But Article 16(4) empowers the State to make provision for reservation of
appointments or posts in favour of classes of citizens not adequately represented
in the services under the State.
Article
46 enjoins the State by mandatory language employed therein, to promote with
special care the educational or economic interest of the Scheduled Tribes and
Scheduled Castes and to protect them from "social injustice" and
"all forms of exploitation". Article 51-A(h) enjoins every citizen to
develop scientific temper, humanism and the spirit of inquiry and reform. Again
Article 51-A(h) requires every citizen to strive towards excellence in all
spheres of individual and collective activity so that the nation constantly
rises to higher levels of endeavour and achievement. It is, therefore, a
fundamental duty of every citizen to develop scientific temper and humanism and
spirit of inquiry to reform himself in his onward thrust or strive to achieve
excellence in all spheres of individual and collective activity. Since 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 3 (1994) 5 SCC 244 251 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. It is common knowledge
that endeavour of States to fulfil constitutional mandate of upliftment of
Scheduled Castes and Scheduled Tribes by providing for reservation of seats in
educational institutions and for reservation of posts and appointments, are
sought to be denied to them by unscrupulous persons who come forward to obtain
the benefit of such reservations posing themselves as persons entitled to such
status while in fact disentitled to such status. The case in hand is a clear
instance of such pseudo-status.
Kolis
have been declared to be OBC in the State of Maharashtra being fishermen, in
that their avocation is fishing and they live mainly in the coastal region of Maharashtra.
Mahadeo Kolis are hill tribes and it is not a sub-caste. Even prior to
independence, the Maharashtra Government declared Mahadeo Koli to be criminal
tribe as early as 29-5-1933 in Serial No. 15 in List II thereof. In 1942
Resolution in Serial No. 15 in Schedule B of the Bombay resolution Mahadeo Koli
tribe was notified as a Scheduled Tribe. It was later amended as Serial No. 13.
In the Presidential Scheduled Castes/Scheduled Tribes Order, 1950, it was
reiterated. A slight modification was made in that behalf by the Presidential
Notification dated 29-10-1956. In the 1976 Amendment Act, there is no
substantial change except removing the area restriction. Thus Mahadeo Koli, a
Scheduled Tribe continued to be a Scheduled Tribe even after independence. The
Presidential Notification, 1950 also does recognise by public notification of
their status as Scheduled Tribes. The assumption of the Division Bench of the
Bombay High Court in Subhash Ganpatrao Kabade case', that Mahadeo Koli was recognised
for the first time in 1976 under Amendment Act, 1976, as Scheduled Tribe is not
relatable to reality and an erroneous assumption made without any attempt to
investigate the truth in that behalf.
Presidential
declaration, subject to amendment by Parliament being conclusive, no addition
to it or declaration of castes/tribes or sub-castes/parts of or groups of
tribes or tribal communities is permissible.
10.
The entries in the school register preceding the Constitution do furnish great
probative value to the declaration of the status of a caste. Hierarchical caste
stratification of Hindu social order has its reflection in all entries in the
public records. What would, therefore, depict the caste status of the people
inclusive of the school or college records, as the then census rules 252
insisted upon. Undoubtedly, Hindu social order is based on hierarchy and caste
was one of the predominant factors during pre-Constitution period.
Unfortunately instead of dissipating its incursion it is being needlessly
accentuated, perpetrated and stratification is given legitimacy for selfish
ends instead of being discouraged and put an end to by all measures, including
administrative and legislative. Be it as it may, people are identified by their
castes for one or the other is a reality. Therefore, it is no wonder that caste
is reflected in relevant entries in the public records or school or college
admission register at the relevant time and the certificates are issued on its
basis. The father of the appellants admittedly described himself in 1943 and
thereafter as a Hindu Koli. In other words his status was declared a Koli by
caste and Hindu by religion. Kolis are admittedly OBCs. His feigned ignorance
of the ancestry is too hard to believe. The averment in the affidavit that the
entries were mistakenly made as Hindu Koli is an obvious afterthought. The
anthropological moorings and ethnological kinshipaffirmity (sic) gets
genetically ingrained in the blood and no one would shake off from past, in
particular, when one is conscious of the need of preserving its relevance to
seek the status of Scheduled Tribe or Scheduled Caste recognised by the
Constitution for their upliftment in the society. The ingrained tribal traits
peculiar to each tribe and anthropological features all the more become
relevant when the social status is in acute controversy and needs a decision.
The correct projectives furnished in pro forma and the material would lend
credence and give an assurance to properly consider the claims of the social
status and the officer or authority concerned would get an opportunity to test
the claim for social status of particular caste or tribe or tribal community or
group or part of such caste, tribe or tribal community. It or he would reach a
satisfactory conclusion on the claimed social status. The father of the
appellant has failed to satisfy the crucial affinity test which is relevant and
germane one. On the other hand the entries in his school and college registers
as Hindu Koli positively belies the claim of his social status as Scheduled
Tribe.
11.It
is seen that admittedly the appellants reside in Muland area. In the first
instance Suchita rightly approached the Tahsildar having jurisdiction over the
area concerned who refused to give her social status certificate as Mahadeo Koli,
she filed an appeal and the High Court directed the Deputy Commissioner to
dispose of the appeal who in turn without deciding the facts, directed the Tahsildar
to issue the certificate. In the meanwhile she had, by orders of the court, got
admission into the college and pursued her study. The Caste Certificate
Scrutiny Committee, consists of the Secretary as Chairman and two members, and
a Research Officer-cum-Director who have intimate knowledge in the
identification of the specified tribes, considered the entire material. The
Committee has stated and as is seen that the appellant's father clearly
accepted that his caste is recorded in the college as well as secondary school
and college records as Hindu Koli only.
This
fact is strengthened by the candidate's father's school record (document at
Serial No. 1). In the new English School locality at Thane, the name of the
253 candidate's father appeared in the admission register at Serial No. 3733,
and the caste clearly shown there was as H. Koli. This school record,
comparatively, is not only oldest but it being the record pertaining to
candidate's father's admission to school prior to independence, it carries
greatest probative evidentiary value, The caste of the person, as stated
earlier, is determined on the basis of the caste of their parents, basically
for the reasons that the caste is acquired by birth. When the school record of
the candidate's father shows his caste as Koli, the documents which the
candidates have produced (documents quoted at Serial Nos. 3, 5 to 8, 11, 13 to
16) showing their caste as Mahadeo Koli cannot be relied upon. All these
documents furnished by the candidates are those manipulated and fabricated with
to knock of the seats in educational institutions defrauding the true Scheduled
Tribes to their detriment and deprivation. As the school record of the
candidate's father shows his caste as 'Koli', the caste certificates which have
been issued to the appellants and their relatives by the Executive Magistrate,
Greater Bombay (documents at Serial Nos. 9, 10, 12, 17 to 19) are without
proper enquiry and investigation, besides being without jurisdiction. Its reiteration
in service record would not carry any credibility or a ground to accept the
caste as Scheduled Tribe. The caste certificate issued by Samaj being
self-serving and subject to scrutiny, they cannot be held to be conclusive
proof to determine the caste claim.
The
finding recorded by the Committee is based on consideration of the entire
material together with sociological, anthropological and ethnological
perspectives which Mahadeo Kolis enjoy and of the OBC castes and sub- caste of
the Kolis. The 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 254 the benefits. In view of
the above, we cannot help holding that the reasoning of the High Court is
wholly perverse and untenable.
12. We
have seen that Scrutiny Committee proceedings although started on 8-12-1989
were prolonged till 26-6-1992.
We do
not have record to scan the reasons for the delay. It would appear that the
constitution of a Committee with large number of members and Secretary as
Chairman must have greatly contributed for the delay in deciding the claims for
the social status. A right of appeal provided thereafter compounded further
delay though the Additional Commissioner on the facts of this case has disposed
of the appeal very expeditiously. However, all of them are the contributory
factors for the delay.
13.
The admission wrongly gained or appointment wrongly obtained on the basis of
false social status certificate necessarily has the effect of depriving the
genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in
the Constitution of the benefits conferred on them by the Constitution. The
genuine candidates are also denied admission to educational institutions or
appointments to office or posts under a State for want of social status
certificate. The ineligible or spurious persons who falsely gained entry resort
to dilatory tactics and create hurdles in completion of the inquiries by the
Scrutiny Committee.
It is
true that the applications for admission to educational institutions are
generally made by a parent, since on that date many a time the student may be a
minor.
It is
the parent or the guardian who may play fraud claiming false status
certificate. It is, therefore, necessary that the certificates issued are scrutinised
at the earliest and with utmost expedition and promptitude. For that purpose,
it is necessary to streamline the procedure for the issuance of social status
certificates, their scrutiny and their approval, which may be the following:
1. The
application for grant of social status certificate shall be made to the Revenue
Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the
certificate shall be issued by such officer rather than at the Officer, Taluk
or Mandal level.
2. The
parent, guardian or the candidate, as the case may be, shall file an affidavit
duly sworn and attested by a competent gazetted officer or non-gazetted officer
with particulars of castes and sub-castes, tribe, tribal community, parts or
groups of tribes or tribal communities, the place from which he originally
hails from and other particulars as may be prescribed by the Directorate
concerned.
3.
Application for verification of the caste certificate by the Scrutiny Committee
shall be filed at least six months in advance before seeking admission into
educational institution or an appointment to a post.
4. All
the State Governments shall constitute a Committee of three officers, namely,
(1) an Additional or Joint Secretary or any officer higher in rank of the
Director of the department concerned, (11) the Director, Social Welfare/Tribal
Welfare/Backward Class Welfare, as the case may be, and (III) in the case of
Scheduled Castes another officer who has 255 intimate knowledge in the
verification and issuance of the social status certificates.
In the
case of the Scheduled Tribes, the Research Officer who has intimate knowledge
in identifying the tribes, tribal communities, parts of or groups of tribes or
tribal communities.
5.
Each Directorate should constitute a vigilance cell consisting of Senior Deputy
Superintendent of Police in over-all charge and such number of Police
Inspectors to investigate into the social status claims.
The
Inspector would go to the local place of residence and original place from
which the candidate hails and usually resides or in case of migration to the
town or city, the place from which he originally hailed from. The vigilance
officer should personally verify and collect all the facts of the social status
claimed by the candidate or the parent or guardian, as the case may be. He
should also examine the school records, birth registration, if any. He should
also examine the parent, guardian or the candidate in relation to their caste
etc. or such other persons who have knowledge of the social status of the
candidate and then submit a report to the Directorate together with all
particulars as envisaged in the pro forma, in particular, of the Scheduled
Tribes relating to their peculiar anthropological and ethnological traits,
deity, rituals, customs, mode of marriage, death ceremonies, method of burial
of dead bodies etc. by the castes or tribes or tribal communities concerned
etc.
6. The
Director concerned, on receipt of the report from the vigilance officer if he
found the claim for social status to be "not genuine" or 'doubtful'
or spurious or falsely or wrongly claimed, the Director concerned should issue
show-cause notice supplying a copy of the report of the vigilance officer to
the candidate by a registered post with acknowledgement due or through the head
of the educational institution concerned in which the candidate is studying or
employed. The notice should indicate that the representation or reply, if any,
would be made within two weeks from the date of the receipt of the notice and
in no case on request not more than 30 days from the date of the receipt of the
notice.
In
case, the candidate seeks for an opportunity of hearing and claims an inquiry
to be made in that behalf, the Director on receipt of such representation/reply
shall convene the committee and the Joint/Additional Secretary as Chairperson
who shall give reasonable opportunity to the candidate/parent/guardian to
adduce all evidence in support of their claim. A public notice by beat of drum
or any other convenient mode may be published in the village or locality and if
any person or association opposes such a claim, an opportunity to adduce
evidence may be given to him/it. After giving such opportunity either in person
or through counsel, the Committee may make such inquiry as it deems expedient
and consider the claims vis-a-vis the objections raised by the candidate or
opponent and pass an appropriate order with brief reasons in support thereof.
7. In
case the report is in favour of the candidate and found to be genuine and true,
no further action need be taken except where the report 256 or the particulars
given are procured or found to be false or fraudulently obtained and in the
latter event the same procedure as is envisaged in para 6 be followed.
8.
Notice contemplated in para 6 should be issued to the parents/guardian also in
case candidate is minor to appear before the Committee with all evidence in his
or their support of the claim for the social status certificates.
9. The
inquiry should be completed as expeditiously as possible preferably by
day-to-day proceedings within such period not exceeding two months. If after
inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious,
they should pass an order cancelling the certificate issued and confiscate the
same. It should communicate within one month from the date of the conclusion of
the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In
case of any delay in finalising the proceedings, and in the meanwhile the last
date for admission into an educational institution or appointment to an officer
post, is getting expired, the candidate be admitted by the Principal or such
other authority competent in that behalf or appointed on the basis of the
social status certificate already issued or an affidavit duly sworn by the
parent/guardian/candidate before the competent officer or non-official and such
admission or appointment should be only provisional, subject to the result of
the inquiry by the Scrutiny Committee.
11.
The order passed by the Committee shall be final and conclusive only subject to
the proceedings under Article 226 of the Constitution.
12. No
suit or other proceedings before any other authority should lie.
13.
The High Court would dispose of these cases as expeditiously as possible within
a period of three months. In case, as per its procedure, the writ
petition/miscellaneous petition/matter is disposed of by a Single Judge, then
no further appeal would lie against that order to the Division Bench but
subject to special leave under Article 136.
14. In
case, the certificate obtained or social status claimed is found to be false,
the parent/guardian/the candidate should be prosecuted for making false claim.
If the prosecution ends in a conviction and sentence of the accused, it could
be regarded as an offence involving moral turpitude, disqualification for
elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As
soon as the finding is recorded by the Scrutiny Committee holding that the
certificate obtained was false, on its cancellation and confiscation
simultaneously, it should be communicated to the educational institution
concerned or the appointing authority by registered post with acknowledgement
due with a request to cancel the admission or the appointment. The Principal
etc. of the educational institution responsible for making the admission or the
appointing 257 authority, should cancel the admission/appointment without any
further notice to the candidate and debar the candidate from further study or
continue in office in a post.
14.
Since this procedure could be fair and just and shorten the undue delay and
also prevent avoidable expenditure for the State on the education of the
candidate admitted/appointed on false social status or further continuance
therein, every State concerned should endeavour to give effect to it and see
that the constitutional objectives intended for the benefit and advancement of
the genuine Scheduled Castes/Scheduled Tribes or backward classes, as the case
may be are not defeated by unscrupulous persons.
15.
The question then is whether the approach adopted by the High Court in not
elaborately considering the case is vitiated by an error of law. High Court is
not a court of appeal to appreciate the evidence. The Committee which is
empowered to evaluate the evidence placed before it when records a finding of
fact, it ought to prevail unless found vitiated by judicial review of any High
Court subject to limitations of interference with findings of fact. The
Committee when considers all the material facts and records a finding, though
another view, as a court of appeal may be possible, it is not a ground to
reverse the findings. The court has to see whether the Committee considered all
the relevant material placed before it or has not applied its mind to relevant
facts which have led the Committee ultimately record the finding. Each case
must be considered in the backdrop of its own facts.
16.
Whether appellants are entitled to their further continuance in the studies is
the further question. Often the plea of equities or promissory estoppel would
be put forth for continuance and completion of further course of studies and
usually would be found favour with the courts.
The
courts have constitutional duty and responsibility, in exercise of the power of
its judicial review, to see that constitutional goals set down in the Preamble,
the Fundamental Rights and the Directive Principles of the Constitution, are
achieved. A party that seeks equity, must come with clean hands. He who comes
to the court with false claim, cannot plead equity nor the court would be
justified to exercise equity jurisdiction in his favour. There is no estoppel
as no promise of the social status is made by the State when a false plea was
put forth for the social status recognised and declared by the Presidential
Order under the Constitution as amended by the SC & ST (Amendment) Act,
1976, which is later found to be false. Therefore, the plea of promissory estoppel
or equity have no application. When it is found to be a case of fraud played by
the concerned, no sympathy and equitable considerations can come to his rescue.
Nor the plea of estoppel is germane to the beneficial constitutional
concessions and opportunities given to the genuine tribes or castes. Courts
would be circumspect and vary in considering such cases.
17. We
have seen that Miss Suchita rightly made an application before the competent
officer within whose jurisdiction her father lives in Muland and when he
refused to give the certificate, she filed an appeal; approached the High Court
and obtained direction and gained admission. It is not in 258 dispute that the
Additional Commissioner was delaying it; he did not decide as directed by the
High Court, instead directed the Tahsildar to issue the certificate. Thus she
secured a false social status certificate and orders of the court were used to
gain admission. The judicial process is made use of to secure admission. She
continued her studies thereafter pending scrutiny of her status certificate. No
doubt there was a delay on the part of the Scrutiny Committee in the disposal
of the claims and we do not find any record to scan the reasons for the delay.
Suffice to state that her parents have put her under a cloud as to her social
status. But as seen from the facts a course of conduct was adopted by her
parents to gain admission on the claim which is now found to be false. Parents'
misconduct visits the children also many a times. However, she has now
completed the course of study except to appear for the final year as contended
for her and nothing more is to be done in the situation for her to complete her
course of study. We direct the Principal to permit her to sit for the final
year examination, if she has completed the course of study as represented to us
but not with the social status as a Scheduled Tribe which was claimed
fraudulently and made her admission with the aid of the court's order and
continue her studies. The delay in disposal facilitated her continuance in
study of MBBS course.
18.
The delay in the process is inevitable but that factor should neither be
considered to be relevant nor be an aid to complete the course of study. But
for the fact that she has completed the entire course except to appear for the
final examination, we would have directed to debar her from prosecuting the
studies and appearing in the examination.
In
this factual situation no useful purpose would be served to debar her from
appearing for the examination of final year MBBS. Therefore, we uphold the
cancellation of the social status as Mahadeo Koli fraudulently obtained by Km Suchita
Laxman Patil, but she be allowed to appear for the final year examination of
MBBS course. She will not, however be entitled in future for any benefits on
the basis of the fraudulent social status as Mahadeo Koli. However, this
direction should not be treated and used as a precedent in future cases to give
any similar directions since the same defeats constitutional goals.
19. In
the case of Madhuri Laxman Patil, she did not approach the competent officer.
She appears to have wrongly gone to an officer who had no jurisdiction,
obviously she has shown the order issued by the High Court in favour of her
sister Suchita and secured the certificate and got the admission. Though she is
in midway of her study in BDS in the end of second year, she cannot continue
her studies with her social status as Mahadeo Koli, a Scheduled Tribe and the
concessions which she might have got on that account. If she was eligible for
obtaining admission as a general candidate she may continue her studies.
Therefore, we uphold the cancellation and confiscation of her and of Suchita of
social status as Mahadeo Koli ordered by Scrutiny Committee and affirmed by the
order of Appellate Authority and that of the High Court in that behalf. Subject
to the above modifications, the appeal is dismissed but without costs.
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