Kum. Shweta Kesarinath Shivdikar vs State Of Maharashtra on 11 January, 2010

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                     
                      WRIT PETITION NO.               1207    OF 2007




                                                             
    Kum. Shweta Kesarinath Shivdikar                    )




                                                            
    Aged 22 years, Hut no.26, Near Hanuman              )
    Temple, Shivdi Koliwada, Mumbai 400 015.            ).. Petitioner

                Versus




                                             
    1.    State of Maharashtra                      )
          through its Secretary, Tribal Development )
                              
          Department, Mantralaya, Mumbai 400 032. )
                             
    2.    Scheduled Tribe Scrutiny Committee,           )
          through its Deputy Director & Member          )
          Secretary,Konkan Division, Thane.             )

    3.    Competent Authority and Director              )
           


          of Medial Education, having its office at     )
          St. George's Hospital Compound,               )
        



          C.S.T., Mumbai.                               )

    4.    G.S.Medical College through its               )





          Dean, Parel, Mumbai 400 012.                  )

    5.    The Deputy Collector, Mumbai                  )
          Old Custom House, S.B.S. Marg,                )
          fort, Mumbai.                                 ).. Respondents





    Mr. R.K.Mendadkar, Advocate, for the petitioner.
    Mr. Niranjan Pandit, AGP, for the respondents.




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                                          CORAM: F.I.REBELLO AND
                                                 J.H.BHATIA, JJ.

DATE : 11th January, 2010.

JUDGMENT: (PER J.H.BHATIA,J.)

1. The petitioner claims to be a member of Mahadeo Koli, which is a

Scheduled Tribe, and accordingly, she obtained the Tribe Certificate which was

referred to the Scheduled Tribe Certificate Scrutiny Committee. The Scrutiny

Committee, by the impugned order dated 22.2.2007, rejected her clam. By this

petition, she seeks to set aside the said order and direction to issue validation

certificate to her. It may be noted that earlier this petition was dismissed by this

Court by the order dated 14.8.2007. That order was challenged by the petitioner

in the Supreme Court in Civil Appeal No. 6146 of 2008. The Hon’ble Supreme

Court remanded the matter back to this Court to hear the parties, particularly in

view of the two conflicting entries in the Birth Certificate and the school record of

her grandfather.

2. Heard the learned Counsel for the parties. Perused the record. On

perusal of the record, we find that in the school record, her uncles Suryakant and

Chandrakant, aunts Shashikala and Hemlata and her father Kesarinath were

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shown to be Hindus. The School record does not show that they belong to

Mahadeo Koli Tribe. Krishnabai Shrawan Shivdikar, aunt of her father, was

shown as `Koli’. The school record shows that caste of her grandfather

Raghunath Shrawan was initially shown as “Koli” at the time of admission in

the Nursery School, but later on, at the time of admission in the Primary School,

his caste was shown as “Koli Mahadeo”. Thus, except one entry in respect of her

grandfather, all the records in respect of other relatives, reveal that they were

either Koli or Hindu. Koli is the other Backward Caste,but admittedly not a

Scheduled Tribe and it is not a part of “Koli Mahadeo” Tribe.

3. It may be noted that in the school record, the date of birth of her

grandfather Raghunath was shown as 2.10.1931. However, there is also a Birth

Certificate issued by the Public Health Department of Municipal Corporation of

Greater Mumbai, from the Births Register. It shows his date of birth to be

5.11.1931. Father’s name of child was shown as Shrawan Mangali and mother’s

name was Budibai. There is address as H-No.39, Sewree Koliwada, which is a

part of Mumbai. The occupation of the father was shown as fishing and the caste

was recorded as “Son Koli”.

4. It is contended on behalf of the petitioner that the said Birth

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Certificate is not in respect of her grandfather. In the school record, name of

father of her grandfather Raghunath is shown to be Shrawan Mangal Shivadikar,

resident of Shivadi Koliwada. The petitioner has not produced any other birth

certificate of her grandfather nor she has produced any document to show that

there was some other person by the same name “Raghunath Shrawan Shivdikar”,

who was born on 5.11.1931, while her grandfather was born on 2.10.1931. The

Birth Register is required to be maintained as per the statutory provisions of the

Births, Deaths and Marriages Registration Act, 1986. Section 20 makes a

provision as to who can give notice of birth of a child. Section 27 provides for

punishment of imprisonment for a term which may extend to three years, or with

fine, or with both, for wilfully giving false information about birth or death to be

inserted in such a register. Thus, under the threat of punishment against any false

information, one has to furnish the information about the birth or death of a person

under Section 20. Under Section 9 of the said Act, a copy of an entry given from

the birth or death register is admissible in evidence for the purpose of proving

birth or death of a person without calling the original record before the Court. The

entries are taken by the officer entrusted with the responsibility of maintaining the

Birth Register. When such an entry is taken by a public servant in the ordinary

course of discharging his official functions, it can be presumed under Section

114 of the Evidence Act that the entry was correctly taken. Many a times date of

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birth at the time of admission of a child in school is wrongly recorded, particularly

when parents are illiterate and birth certificate is not produced. Therefore, merely

because in the school register, the date of birth is shown as 2.10.1931, while in the

birth certificate it is 5.11.1931, it cannot be held that the entry in Birth Register

does not relate to her grandfather, particularly when all the other information

relates to her grandfather. As noted above, she has not produced any record to

show that there was any other person by same name nor she has produced any

birth certificate of her grandfather to establish that the certificate collected by the

Vigilance Cell of the Scrutiny Committee does not pertain to her grandfather.

Even the school record about the initial admission of her grandfather Raghunath

in the school shows that caste was recorded as “Koli” and not “Mahadeo Koli”.

Only at some later stage, when he was admitted in the Primary School, his caste

was recorded as “Mahadeo Koli” Therefore, much importance cannot be given to

the caste shown in his school record.

5. The birth certificate of her grandfather shows the occupation of her

great-grandfather as fishing and caste as “Son Koli”. Even her grandfather

Raghunath admitted in his statement that the occupation of his community is

fishing. This also provides corroboration to the entries in the Birth Certificate.

The Scrutiny Committee noted that the applicant has also failed in the affinity

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test to prove she belongs to Mahadeo Koli, a Scheduled Tribe. It is well-settled

that the characteristics and traits of a particular tribe are very important in

deciding the affinity of a person to the particular tribe. In Kumari Madhuri

Patil and Anr. vs. Addl. Commissioner, Tribal Development and Ors. (1994) 6

SCC 241, the Supreme Court observed as follows in para 5 :-

“5. ….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…”

6. In the present case, the Scrutiny Committee has considered the

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statements of father and grandfather of the petitioner which clearly go to show

that they have no knowledge about the traits or the peculiar customs and

traditions of Mahadeo Koli Tribe. After minutely considering the material on

recored, the Scrutiny Committee came to conclusion that the petitioner had failed

to prove her claim to Mahadeo Koli Tribe. Taking into consideration all the

material on record, it is impossible to find fault with the findings of the Scrutiny

Committee.

7.

It has also been submitted that as per the order of this Court in Writ

Petition No.2085 of 1986, decided on 17.6.1992 in respect of the petitioner’s aunt

Hemlata Shivadikar, validation certificate was granted, but that has not been

considered by the Scrutiny Committee. We may note that the said order was

passed before the Scrutiny Committee was constituted to scrutinize the caste/tribe

claims referred to it. After the Scrutiny Committee has been constituted, it is

necessary for the Scrutiny Committee to examine the cases carefully and if while

granting a certificate to any member of the family or a close relative earlier certain

material was not before the competent authority or was not considered, the

Scrutiny Committee can certainly look into all such material to scrutinize the

claim. In Raju Ramsingh Vasave vs. Mahesh Deorao Bhivapurkar & Ors.

2009(1) Mh.L.J. 1, in para 20, Their Lordships observed as follows :-

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“We do not mean to suggest that an opinion formed by the

Committee as regards the caste of the near relative of the applicant

would be wholly irrelevant, but, at the same time, it must be pointed
out that only because, by mistake or otherwise, a member of his
family had been declared to be belonging to a member of the

Scheduled Tribe, the same by itself would not be conclusive in nature
so as to bind another Committee while examining the case of other
members of the family at some details. If it is found that in granting

a certificate in favour of a member of a family, vital evidences had

been ignored, it would be open to the Committee to arrive at a
different finding.”

8. It is further submitted that the petitioner had secured admission

to Medical Course in 2003 against a reserved seat for the Scheduled Tribe

on the basis of a claim that she belonged to Mahadeo Koli a Scheduled
Tribe. It is contended that she has spent long time and also money on
pursuing the said Course of MBBS and it will become a waste if her degree

is not protected. The protection is sought on the basis of a direction given
by the Supreme Court in State of Maharashtra vs. Milind &Ors. 2001 (1)
Mh.L.J.(S.C.)1. However, we are unable to accede to this contention and

request. Again in Raju Ramsingh Vasave (supra), in para 21, Their
Lordships observed as follows :-

“21. We reiterate that to fulfill the constitutional norms, a

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person must belong to a tribe before he can stake his claim to be a
member of a notified Scheduled Tribe. When an advantage is obtained

by a person in violation of the constitutional scheme, a constitutional
fraud is committed.”

In Ganesh Rambhau Khalale vs. State of Maharashtra & Ors. 2009(2)

Mh.L.J.788, Full Bench of this Court it was held that the
observations/directions issued by the Supreme Court in para 36 of the
Judgment in the case of State vs. Milind is not the law declared by the

Supreme Court under Article 141 of the Constitution of India and that the
said observations/directions were issued in exercise of powers under Article

142 of the Constitution.

9. In Priyanka Omprakash Panwar vs. State of Maharashtra
& Ors.2008(1) Mh.L.J.715, a Division Bench of this Court considered the

provisions of Section 10(3) of the Maharashtra Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward

Classes and Special Backward Category (Regulations of Issuance and
Verification of Caste Certificate) Act, 2000 which contains a mandatory

consequence that notwithstanding anything contained in any Act for the time
being in force, a degree,diploma or educational qualification acquired by a
person after securing admissin to an educatinal institution on the basis of a

Caste Certificate which is subsequently proved to be false shall also stand
cancelled, on cancellation of the Caste Certificate by the Scrutiny
Committee. Having considered the said provisions, the Division Bench
refused to accede to the prayer for protection of the degree or educational
qualification in view of the specific legal provisions applicable in the State

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of Maharashtra. When the petitioner has secured admission to a Medical
Course on the basis of a caste claim which is found to be false, she cannot

be given protection against cancellation of such admission.

10. For the aforesaid reasons, the Petition stands dismissed. No

order as to costs.

                                             
    (J.H.BHATIA,J.)
                                ig                            (F.I.REBELLO,J.)
                              
            
         






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