Nandesh S. Deshpande, J.

1. Heard. Rule. Rule made returnable forthwith. Heard finally by consent of parties.

2. The present petition questions order dated 30.11.2018, passed by the respondent No.1 – Scrutiny Committee, Nagpur whereby the certificate of validity bearing No.A1625655, dated 24.10.2017 and the caste certificate vide Reve. Case No.MRC- 81/80517/2011-2012, dated 03.11.2011 is confiscated.

3. The facts as emerging from the petition are as under :

The petitioner was born on 15.9.1997 and was brought up only by her mother. On 3.11.2011 the Deputy Collector, Nagpur issued a caste certificate in her favour certifying that she belongs to ‘Mahar’ Scheduled Caste. On 23.10.2015, the petitioner submitted her caste claim for validation before the respondent No.1 - Scrutiny Committee, Nagpur which returned the same on 17.9.2016. This constrained the petitioner to file Writ Petition No.4312/2017 which was disposed by this Court on 18.9.2017. This Court directed the petitioner to re-submit the caste claim along with necessary affidavit explaining the facts about her father and absence of certificate in the name of father. It was further directed that the said claim should be decided within one year. In pursuance to the directions of this Court the respondent No.1 on 24.10.2017 issued a validity certificate in favour of the petitioner.

4. As can be seen from the record of the petition, on 30.11.2017 the respondent No.1-Scrutiny Committee, Nagpur seized the said certificate for re-examining the issue and ultimately cancelled the same vide order dated 30.11.2018. Thereafter, on 16.12.2022 the respondent No.1-Scrutiny Committee, Nagpur informed the petitioner that the caste certificate and the validity certificate are cancelled and confiscated. This constrained the petitioner to challenge the said action of the respondent No.1- Scrutiny Committee on various grounds as mentioned in the petition.

5. We have heard Mr. Ananta Ramteke, learned counsel for the petitioner and Mrs. H.S. Dhande, learned Assistant Government Pleader for the respondents.

6. Learned counsel for the petitioner by taking us through the record of the matter submits that the only reason which has weighed with the Scrutiny Committee while confiscating the validity already issued to her is that the documents which were submitted in support of her claim, pertained to the maternal side and not of the paternal side. The counsel for the petitioner submits that the entire approach of the Committee is erroneous and contrary to the settled position of law. He further submits that there is no power vested in the Committee for review of its own orders and, therefore, the action of confiscation is de hors the provisions of law.

7. He places reliance on the judgment of this Court at the Principal Seat in Writ Petition No.5364/2023 (Rakesh Bhimashankar Umbarje and others Vs. State of Maharashtra and another) to submit that there is no power vested in the Committee to review the own order. He also places reliance on the judgment of the Hon’ble Apex Court, in the case of Rameshbhai Dabhai Naika Vs. State of Gujarat and others, reported in (2012) 3 SCC 400.

8. Per contra, the learned Assistant Government Pleader for the respondents, while refuting the averments and contentions canvassed by the learned counsel for the petitioner submits that the Scrutiny Committee has verified all the documents, from the maternal side and, therefore, was right in rejecting the claim of the petitioner. She submits that due to a news item published on 21.11.2017, the Committee inquired into the matter and found that by mistake in absence of any documentary evidence from the petitioner father’s side wrongly a certificate of validity was issued. In nut shell, it is submitted that the action of the respondent No.1- Scrutiny Committee is perfectly valid and justified and within the framework of the Act of 2000 and the Rules framed thereunder.

9. We have considered the contentions canvassed by the learned counsel for the respective parties.

10. The Maharashtra Scheduled Castes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012 are framed in exercise of the powers conferred by sub-section (1) of Section 18 of the Maharashtra Scheduled Caste, 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 which defines the procedure for issuance of caste certificate and validity certificates to the various categories mentioned in the said Rules. Rule 16 which is titled as ‘Information to be supplied by applicant’ spells out various documents which are supposed to be submitted by the applicant who submits his caste certificate for validation. Sub-clause (d) contemplates submission of extract of birth register relating to family members as per genealogy, i.e. great-grand father or grandfather or father or real uncle etc. Furthermore, explanation (3) to the said Rule 16 contemplates that if an applicant submits the application alongwith the caste validity certificate of his father in blood relation or real uncle or any other blood relative from paternal side and the same would be displayed on the website of ‘BARTI’ i.e. Dr. Babasaheb Ambedkar Research and Training Institute. Thus, it is clear that the Rule contemplates submission of documents from the paternal side i.e. father’s side and not maternal side.

11. However, as held by the Hon’ble Supreme Court in the judgment Rameshbhai Dabhai Naika referred supra and more particularly para 5 is reproduced as under :

                   “5. The High Court seems to have read the decisions in Valsamma Paul', Rai and Anjan Kumar as laying down the rule that in all cases and regardless of other considerations the offspring of an inter-caste marriage or a marriage between a tribal and a non-tribal would take his/her caste from the father. In the three decisions there are indeed observations (though by no means forming the ratio of the decisions) that may lend credence to such a view but the question is whether it can be said to flow from those decisions, as an inflexible rule of general application, that in every case of an inter-caste marriage or a marriage between a tribal and a non-tribal, the offspring must take his/her caste from the father. The clear answer, to our mind, is in the negative. A careful examination of the three cases together with some other decisions of this Court would clearly show that what was said in Valsamma in a certain context has been rather mechanically and inappropriately extended and applied to different other fact situations as the law laid down in Valsamma.” (underline is ours)

12. Furthermore, in the said judgment the Hon’ble Apex Court in para Nos. 54 and 55 recorded as under :

                   “54. In view of the analysis of the earlier decisions and the discussion made above, the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non- tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter- caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case.

                   55. In an inter-caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. f This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Caste/Scheduled Tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally. that he was always treated as a member of the community to which her mother belonged not only by that community but by the people outside the community as well.”

13. It is thus clear that the legal position which emerges that determination of caste of an offspring born between a tribal and non-tribal is essentially a question of fact. The Hon’ble Apex Court has categorically held that the presumption that the child has the caste of his father is not entirely conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Caste/Scheduled Tribe.

14. In the backdrop of these facts if we appreciate the documents filed by the petitioner in support of her caste claim, it is amply clear that the petitioner has proved that her mother belongs to a Scheduled Caste, namely, ‘Mahar’. For the convenience the relevant documents are re-produed in a tabular form as under :

                  

                  

15. It is thus amply clear that there was documentary evidence on record to show that the mother of the petitioner belongs to said ‘Mahar’ caste. The only reason for discarding the document as can be seen from the order of the Scrutiny Committee that no documents are filed on the paternal side and only documents are only from the maternal side. This finding, in the light of the dictum of the Supreme Court in Rameshbhai Dabhai Naika (supra) case is clearly erroneous. Thus, in our considered opinion there was documentary evidence on record adduced by the petitioner that her mother belongs to Scheduled Caste and, therefore, she was entitled to claim validity on the basis of those documents.

16. The next aspect which needs to be considered is regarding the confiscation of the validity certificate granted to her. A beneficial reference in this regard can be made to the judgment of Rakesh Bhimashankar Umbarje and others mentioned supra in which in para 33 and 34, the Co-ordinate Bench of this Court has after taking into consideration observed as under :

                   “33. It can be clearly noticed that it has been a consistent view in various decisions that the Caste Scrutiny Committee has no jurisdiction to review its own orders. There is no dispute whatsoever on this proposition and the Courts would be required to adhere to the mandate of what has been provided for in law i.e. sub- section (2) of Section 7 that the challenge to any decision taken under the Act by the Caste Scrutiny Committee can only be challenged before the High Court by invoking the provisions of Article 226 of the Constitution of India. Furthermore, it is a settled position in law that when substantive provisions are clear, such jurisdiction cannot be conferred by any subordinate legislation or by any executive fiat.

                   34. As the Caste Scrutiny Committee has no powers to review, there is no question of any suo motu powers to be exercised by the Caste Scrutiny Committee and in any exercise of such suo motu jurisdiction would be invalid, illegal and contrary to the provisions of the Act.”

17. It is thus clear that the Scrutiny Committee has no power to review and there is no question of any suo motu powers to be exercised by the Scrutiny Committee. Such exercise would, therefore, be illegal.

18. In that view of the matter, we are of the considered opinion that the order of the Scrutiny Committee in confiscating the certificate cannot withstand the scrutiny of law. We, therefore, pass the following order :

ORDER

(i) The Writ Petition is allowed.

(ii) The order dated 30.11.2018, passed by the respondent No.1 – Scrutiny Committee, Nagpur is quashed and set aside.

(iii) The validity certificate bearing No.A 1625655, dated 24.10.2017 and the caste certificate vide Reve. Case No.MRC- 81/80517/2011-2012, dated 03.11.2011 is restored.

(iv) It is further directed that the respondent No.1 Scrutiny Committee should handover the caste certificate and the validity certificate to the petitioner within a period of four weeks from today.

(v) Rule is made absolute.

(vi) The petition is disposed of in above terms.