Writ Petition No.3158 of 2008

3rd October, 2008

Petitioner Counsel: Shri. S. SOHONI
Respondent Counsel: Mrs. S. W. DESHPANDE,Mrs. BHARTI DANGRE

Cases Cited:
Deorao Umredkar Vs. State of Maharashtra, 2007(5) ALL MR 757=2008(1) Mh.L.J. 364 [Para 32]

JUDGMENT

A. H. JOSHI, J.:- Rule. Rule returnable forthwith and heard by consent of the parties.

2. The petitioner is challenging the order of Scrutiny Committee passed on 15-05-2006 invalidating the petitioner claims that he belongs to "Dhoba" Scheduled Tribe.

3. The petitioner was appointed as Machinist 'Semi Skilled' worker in Ordnance Factory Ambazari against the post reserved for Scheduled Tribe.

4. The employer forwarded the petitioner's caste certificate dated 2-7-1993 issued by the Executive Magistrate, Nagpur (Annexure-1) to the petition for verification to the Scrutiny Committee. The petitioner was required to furnish the information in the Form-E along with one annexure and an affidavit in support thereof which he has furnished to the Committee through the employer.

5. The Police of Vigilance Cell has enquired and has collected the information. The vigilance cell had recorded the statements of petitioner, and three relatives - uncle and cousins of the petitioner.

The petitioner was served with the report of the Vigilance Cell, it being adverse.

6. The petitioner has filed the reply-cum-objection to the report of Vigilance Cell. The petitioner has thereafter submitted the additional reply. He claimed an opportunity of cross-examining the Officers of Vigilance cell who had conducted the enquiry, and the Head Master who has issued the School report claiming that the opportunity of hearing was not granted to the petitioner, he prayed for adjournment lastly by application dated 18-1-2006. The petitioner did not furnish any additional evidence in support of his claim, and the Scrutiny Committee decided his case by its order dated 15-5-2006.

7. In the present petition, the petitioner has raised various challenges. The points which are urged in his oral submissions are summarized as follows :-

(a) No opportunity to cross-examine the head master of the school, Research Officer and Police Officer was given to the petitioner by Respondent no.2 Caste Scrutiny Committee.

(b) No material was supplied to the petitioner in spite of his demand, on the basis of which Respondent No.2 Committee has tested the answers given by the petitioner in the format supplied to him by the Vigilance Cell Officers.

(c) The Scrutiny Committee erred in believing the school record of Wasudeo Kinhekar and Namdeo Kinhekar, the persons who are not in relation of the petitioner while rejecting the caste claim of the petitioner.

(d) Respondent No.2 Committee heavily relied on the information in the questionnaire proforma provided by the Committee itself and also on affinity and social traits.

(e) That the information and the documents on the basis of which the Vigilance Cell has given the adverse report were not served on the petitioner.

8. Heard oral submissions of learned Advocate Mr. S. V. Sohoni for the petitioner and learned Advocate Mrs. S. W. Deshpande for Respondent No.2 Committee.

9. Perused the record.

10. It is seen that the petitioner had furnished the information in Form - E in which he gave crucial information about himself as follows :

"8.(a) Applicant's mother tongue : Marathi.

(b) Dialect

(c) God/Goddess : Dula Dev & Magen Maa.

(d) Five surnames of the applicant relatives/community. : Kstrisagar, Pipalkar, Bhosakar, Fale & Mahurkar - Katakar."

"14. Information of the educational institution where the applicant has studied.

Stages of Education	Name of the Educational Institution and address	Period of Education
(a) Primary education (give information right from 1st std.) (b) Secondary education (c) College education	ZP School Metpavara Tah. Katol, Distt.Nagpur Nabira College Katol	1985 1994-95
15. Information of the educational institutionwhere the applicant’s father has studied.
Stages of Education	Name of the Educational Institution and address	Period of Education
(a) Primary education (give information right from 1st std.) (b) Secondary education. (c) College education.	ZP School, Hingna, Nagpur. -do- -do-	1972 continuous.”

11. In the proforma annexed to the information in Form-E, the petitioner has given the details about his mother, uncle, grandmother etc. as follows :

Full Name (along-with Surname and Clan) and native place.

Local Address :

"Smt. Kaushalyabai B. Kinekar - mother's

Shri. Pundlik Bapurao Kelwadkar - Uncle

Late Narayan Kinekar - (Grandmother)

Smt. Bayabai Narayan Kinekar (Grand mother)."

[Quoted from page 5 of Proforma]

12. In support of the information in Form-E, he has furnished the affidavit on a stamp paper which is dated 6-4-2005, in which he gave his genealogical tree

Grand Father
Late - Narayanrao Kinekar, Village-Hingna Kasba, Distt.-Nagpur.
Father Late - Bhayaji Narayan Kinekar, Village-Hingna Kasba House No.; 1009, near Gram Panchayat, Tah.-Hingna, Distt.-Nagpur. Distt.-Nagpur.	Paternal uncle Shri. Shivaji Chintaman Kinekar, Aged: 84 Yrs., Village-Hingna Kasba, Tah.-Hingna,
Son (self) Shri. Nandkishore Bhayaji Kinekar Aged 27 Yrs., Otrs. No.8/36/6, Defence Estate Ordanance Factory Ambazari, Nagpur-21.	Shri. Rajendra Shivaji Kinekar, Aged: 33 Yrs., Village-Hingna Kasba Distt.-Nagpur.

The Father's name of my Grandfather Late Shri.Narayanrao Kinekar is not known. The documents related to age, caste and School are also not available.

This, Shivaji Chintaman Kinekar, has not any other Brother."

13. On the basis of the information, which is furnished by the petitioner along with the documents given by him, the Vigilance Cell has conducted the enquiry.

14. The Vigilance Cell has recorded the statements of petitioner Nandkishore Bhaiyyaji Kinekar and Kamlesh Domaji Kinekar-cousin. It is seen that Raju Kinekar has also signed the statement given by Kamlesh, and the Vigilance Cell collected School record of Namdeo and Wasudeo Kinekar in which their caste is shown to be "Varthi".

15. The petitioner has given very cryptic genealogical tree in the affidavit in support of Form-E as well in his statement given to Vigilance Cell. The petitioner has given petitioner's mother's maiden name as Kausalyabai d/o. Bapurao Kelwadkar, R/o. Metpanjra, Tah. Katol, District Nagpur. He has not given the name of the father of Narayan petitioner's great grandfather's name, name of petitioner's uncle's father i.e. brother of Narayan.

16. In the statement given by Kamlesh Domaji Kinekar and signed by Raju Kinekar the genealogical tree which goes up to two ancestors.

17. The record shows that the Vigilance Cell Report along with four enclosures was forwarded to the petitioner through his employer and the employer has placed on record its acknowledgment. The employer has forwarded thereon acknowledgment thereof signed by the petitioner on 15-4-2005.

18. The petitioner was thus, made known of the grounds on which the Vigilance Cell has given adverse report consisting of the Research Officer's opinion and the endorsement of Vigilance Cell accompanying by statements consisting of genealogical tree, extract of School Leaving Certificate.

19. It is seen that the Show cause notice served on the petitioner refers to the four documents relied upon by the Vigilance Cell.

20. The petitioner appeared before the Committee on 20-4-2005, and applied for 10 days time. The petitioner has thereafter filed his affidavit-in-reply and objection. In his reply, he has alleged that the caste of uncles of the petitioner showing 'Varthi' as their caste was a bogus document. He then urged that the report of Vigilance Cell was secured in violation of the guidelines laid down in Madhuri Patil's case. He says that the entry of caste 'Dhobi' mentioned in some documents is due to mistake. He urged that the report is not acceptable to him. The statements of elderly persons were not recorded, no villagers were questioned, and he would like to cross-examine the Research Officer, police officers and Head Master.

21. He claimed for personal hearing by applications dated 17-06-2005, 22-6-2005 and 12-9-2006. He then submitted further objection on 16-10-2006 and informed that :-

"At the same time, I have categorically denied the entry obtained by the Police Vigilance Cell as "Varthi" in respect of my relatives on the ground that the said entry/extract obtained is bogus and concocted document. For this purpose, I will require to file Affidavit of my relatives of whom the entry as "Varthi" has been obtained. In this circumstances, I may be granted 15 days time to file the said Affidavit."

22. It is seen that though he had applied for time and the order of Scrutiny Committee is dated 15-5-2006, he did not approach and apply to the Scrutiny Committee to produce the evidence which he wants to file.

23. Perusal of record reveals that in the documents furnished by the petitioner, his mother's caste noted in the School Register is 'Dhobi'.

24. In so far as the genealogical record is concerned, the genealogy given by the petitioner in his affidavit filed in support of Annexure-E Form-E is different from genealogy given by him in the statement given on 31st July, 2004.

25. In the genealogy given in affidavit, he admits Rajendra Shivaji Kinekar to be his uncle and Shivaji Kinekar - father of Rajendra to be paternal uncle of petitioner's father.

26. The fact of relation of Shivaji is clear from the genealogy given by Kamlesh Domaji Kinekar. It is seen that Vishwanath Janglu and Shivaji were sons of Chintaman. Chintaman and Timaji are real brothers. The petitioner's father Bhaiyyaji is the son of Narayan who is the son of Timaji. Namdeo and Wasudeo are sons of Lahanu who is also son of Timaji. Lahanu, Narayan and Baliram are real brothers.

27. In the statement given to the Vigilance Cell, the petitioner admits that Baliram and Narayan are brothers. He has skipped Lahanu.

28. It is thus, clear that Nandkishor-petitioner is the nephew of Namdeo & Wasudeo i.e. Namdeo and Wasudeo are his cousins of Bhaiyyaji, same is the case with Kamlesh who is the son of Domaji and Domaji is the son of Baliram. Petitioner's father and Kamlesh are, therefore, cousins.

29. Though the petitioner claims School record procured by Vigilance Cell of caste of Namdeo and Wasudeo to be "Bogus", the petitioner has failed to bring the evidence including any effort to summon them or produce their evidence by affidavit or otherwise. The petitioner did not venture nor has taken care to deny and dispute the genealogy given by Kamlesh.

30. The present is a case where adverse report of the Vigilance Cell was served on the petitioner, and the Petitioner sought multiple adjournments,and made allegation that the School record is bogus, but did not take care to produce any positive evidence to produce his own caste claim.

31. Petitioner's insistence on calling the officers of the Vigilance Cell and or Research Officer etc. for cross-examination is an effort in futility in as much as that the report of Vigilance Cell is the material collected by it, which is furnished before the Scrutiny Committee. The Scrutiny Committee decides after considering the report of Vigilance Cell and documents whether to accept the report or not. When Committee decides to call upon the candidate and affords him the opportunity to prove his caste/tribe claim, the candidate has to prove his claim.

32. In view of Section 8 of the Maharashtra Scheduled Castes and 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, the burden to prove the caste/tribe claim is always on the person who claims to be belonging to a particular tribe. This Court has while dealing with the Writ Petition No.2576/2007 decided on 9-6-2007, Deorao Umredkar Vs. State of Maharashtra reported in [2008(1) Mh.L.J. 364 : (2007(5) ALL MR 757)] has specifically dealt with these aspects and held against the proposition which the petitioner is arguing by detailed discussion in the Judgment.

33. Therefore, this Court finds that all that the petitioner has done is to challenge the report of the Vigilance Cell and he did not take any steps to prove his claim.

34. The order of invalidation of petitioner's tribe claim passed by the Committee is in the nature of an unavoidable fall out, as the petitioner has failed to avail of the opportunity in spite of the repeated adjournments sought by him.

35. In the result, this Court holds that the order of Scrutiny Committee does not suffer from any defect, error of law infirmity or error of jurisdiction. The challenge to the decision of the Scrutiny Committee has no basis and foundation.

36. No indulgence is called for. The petition has no merit and is dismissed.

Petition dismissed.