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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.