WRIT PETITION NO. 6023 OF 2019

11th September 2019

Petitioner Counsel: Shri Abdul Subhan
Respondent Counsel: Shri A. S. Fulzele
Act Name:

Cases Cited :
Para 6: Apoorva d/o Vinay Nichale Vs. Divisional Caste Certificate Scrutiny Committee No.1, Nagpur and ors., 2010 (6) Mh.L.J. 401
Para 8: Anand Vs. Committee for Scrutiny and Verification of Tribes Claims and others, AIR 2012 SC 314

JUDGEMENT

1. Rule made returnable forthwith.
Heard finally by consent of the learned counsel appearing for the parties.

2. The challenge in these petitions is to the order dated 30.07.2019 passed by the District Caste Scrutiny Committee, Nagpur, invalidating the claim of the petitioners for ‘Kachi – Other Backward Class Category’ at Sr. No. 85 in the list. The petitions claim the declaration that the certificates dated 18.06.2019 and 09.08.2017 produced by the petitioners and issued by the Sub Divisional Officer, Mouda, be declared as valid documents.

3. The claim of the petitioners was for ‘Kachi – Other Backward Class Category’ at Sr. No. 85 in the list, which is reproduced below.

Hindi Font
८५) कची, [कछी, कुशवाह, शाक्य,
मोय, मुराई, सैनी] [ कोइरी, कोईरी,
कोयरी, व कुशवाहा]

4. The petitioners are cousins and produced before the Committee essentially two documents of 1948 i.e. (i) Akhiv Patrika and (ii) Maintenance Khasra. In both these documents, the caste of the grand father of the petitioners is shown as ‘Kachchi”. The petitioners relied upon the caste validity certificate dated 18.11.2011 issued in the name of the father of one of the petitioners, validating his claim of ‘Kachi’ OBC category.

5. The documents were sent to the Police Vigilance Cell for enquiry. The genuineness of these documents is not disputed. However, the finding is recorded by the Committee that the petitioners belong to Muslim community and the caste shown in two documents of 1948 is “Kachchi” which is not included in the caste or sub-caste at Sr. No. 85 in the list. It is the further finding recorded by the Committee that the ancestors of the petitioners are from Gujrat and have settled ultimately in the State of Maharashtra since 1948. It is the further finding that caste “Kachchi” has no relation with the caste “Kachi” at Sr.No.85 in the list and both the castes are totally different so far as the social characteristics are concerned. The Committee further holds that the validity certificate issued to the father of one of the petitioners needs to be recalled, as the claim was not tested on the basis of the affinity test.

6. It is not possible for us to accept that the validity certificate issued to the father of one of the petitioners can be recalled on the ground that the claim was not tested on the basis of affinity test. The question as to whether the affinity test is required to be invoked in a particular case or not, has to be considered while deciding that case and it is open for the Committee to validate the claim even without invoking the affinity test. At any rate, it is discretionary and in the absence of affinity test being applied by the Committee, the father of one of the petitioners cannot be said to have practiced any fraud or has misrepresented the authority while obtaining or getting the caste validity certificate. The ground on which the caste validity certificate of the father of one of the petitioners is proposed to be reopened, do not satisfy the test laid down by this Court in Apoorva d/o Vinay Nichale vrs. Divisional Caste Certificate Scrutiny Committee No.1, Nagpur and ors, reported in 2010 (6) Mh.L.J. 401. The findings of the Committee, therefore, cannot be sustained rejecting the claim, though there exist the validity certificate in the name of the father of one of the petitioners.

7. Two documents of 1948 produced before the Committee and referred to in the order were considered by the Committee while issuing the caste validity certificate to the father of one of the petitioners. It therefore follows that the Committee considered the description of the caste as “Kachi” in these two documents having probative value and matches with the entry No.85 in the list of Other Backward Class Category. At any rate, it is a possible view and this also cannot be a ground to reopen the claim which is already concluded and has attained the finality.

8. So far as the affinity test is concerned, in the decision of the Apex Court in Anand vrs. Committee for Scrutiny and Verification of Tribes Claims and others, reported at AIR 2012 SC 314, it is clearly held that it can be used as corroborative piece of evidence. At any rate, once the Committee takes a view of granting validity in the name of the father of one of the petitioners, the matter stands concluded and no different view can be taken in the case of the petitioners holding that the petitioners have failed to satisfy the affinity test and therefore the claims need to be validated.

9. In view of above, the writ petitions are allowed. The order dated 30.07.2019 passed by the District Caste Scrutiny Committee, Nagpur, invalidating the claim of the petitioners for "Kachi - Other Backward Class" is hereby quashed and set aside. The claim of the petitioner for "Kachi - Other Backward Class Category" the entry at Sr. No. 85 in the List is held to be valid. The Committee is accordingly directed to issue the validity certificate in the name of the petitioners.

10. The parties to supply the steno copy of the operative portion of the order and the Committee shall act upon it.

11. At this stage, the learned AGP seeks stay of this judgment for a period of 15 days so as to enable the respondents to adopt further appropriate remedy available in law.

12. However, we are not inclined to stay this decision for the reason that if the stay is granted, the petitioner is likely to lose his admission in the course.

13. Needless to say that if the decision of this Court is reversed, the petitioner would incur the risk of facing the consequences of such invalidation.

14. Rule is made absolute in above terms. No order as to costs.