(PER: SMT. M.S. JAWALKAR, J.)
1. Rule. Rule made returnable forthwith.
2. Heard finally by the consent of learned counsel appearing for the parties at the stage of admission.
3. Being aggrieved by the impugned order dated 12/04/2022 passed by the respondent no. 1 – District Caste Scrutiny Committee, Akola, thereby rejecting the caste claim of the petitioner, the petitioner is constrained to prefer this petition.
4. The petitioner belongs to ‘Kachi’ caste, which is recognized as Other Backward Classes (OBC) at Serial No. 85 as per Government Resolution dated 01/06/2004. The Sub-Divisional Officer, Murtijapur issued the caste certificate on 02/08/2022 in favour of the petitioner.
5. The petitioner got admission in respondent no. 3 College in OBC category. She is pursuing her BDS course and presently, she is in 2nd year. Therefore, she preferred an application in prescribed form before the respondent no. 1 for verification of Caste Certificate along with documents. The petitioner filed caste validity certificates issued by the Scrutiny Committee in favour of her cousin sister - Ayesha and cousin brothers – Uvesh and Mohsin from paternal side. The petitioner also filed relevant documents including the documents as follows:
| Name | Relation | Document | Date of document | Caste |
| Hamid Memon | petitioner’s father | school leaving and college leaving certificates | Date of birth 14/07/1972Date of admission 06/10/1995 college leaving date March, 1996 | Muslim |
| Abdul Hamid Memon | petitioner’s grandfather | school transfer certificate | Date of birth 14/07/1972, date of admission 01/07/1977 to 30/04/1983 | Musalman |
| Wali Mohd. Kachchi | petitioner’s grandfather | birth certificate shown as birth of a child dated 27/10/1946 | Date of birth 27/10/1946 | Kachchi |
| Harun Wali Mohammad | petitioner’s grandfather | school leaving certificate | Date of birth 14/01/1946 date of admission 01/07/1955, date of leaving school 13/01/1958 | Kachchi |
| Wali Mohammad | petitioner’s great grandfather | school leaving certificate | Date of birth 26/08/1920, date of admission 09/09/1931 and date of leaving school 21/07/1933 | Kachchi |
| Gafar Abdul Karim | Cousin grandfather | School leaving certificate | Date of birth 01/07/1929, date of admission 04/03/1938 and date of leaving school 14/08/1939 | Kachchi |
6. The respondent no. 1 issued notice dated 12/10/2022. The Vigilance Cell report was also enclosed with the notice. The Vigilance Cell conducted inquiry and submitted its report though it is not required in view of Rule 16. The perusal of report would reveal that there is no contrary remark in documents submitted by the petitioner for verification of her caste claim.
7. The petitioner filed written submission dated 18/10/2022 and filed documents in support of her caste claim. The Scrutiny Committee rejected the caste claim of the petitioner on the ground that the cast ‘Kachi’ claimed by the petitioner is not included in the caste at Serial No. 85 in the OBC list. The caste ‘Kachi’ of the petitioner is different from caste ‘Kachi’ which is at Sr. No. 85. The caste ‘Kachi’ at Sr.No. 85 is a sub-caste of Kachi, Kushwaha, Shakya, Morya, Murai and Saini. The affinity test of the petitioner’s caste Kachi do not match with the caste of Kachi, Kushwaha, Shakya, Morya, Murai and Saini which are at Sr. No. 85. These findings are erroneous and contrary to law. The Scrutiny Committee ignored the caste validity certificates issued in favour of the petitioner’s cousin sister and brother. Even the documents prior to the cut of date were ignored by the Scrutiny Committee. Similar issue has also been considered by the Hon’ble Supreme Court in the case of State of Maharashtra and others V/s. Mana Adim Jamad Mandal reported in 2006(4) SCC 98, wherein it was held that, between one entry and another a comma is provided in each of the caste specified must be deemed to a separate caste and not a sub-caste.
8. The Scrutiny Committee failed to rely upon the caste validity certificate issued by the Scrutiny Committee in favour of the petitioner’s cousin sister and brother because the petitioner failed to establish relationship between them. This fact is neither mentioned in the notice nor in the Vigilance Cell report. Therefore, the petitioner filed an affidavit of Ayesha in whose favour a validity certificate was issued and an affidavit of Ayesha’s father stating therein that the petitioner is his relative from the paternal side.
9. The respondent ignored the judgment of Hon’ble Supreme Court in the case of Anand V/s. Committee for Scrutiny reported in 2011(6) Mh.L.J. 919 and another judgment of this Court in the case of Apoorva D/o. Vinay Nichale V/s. Divisional Caste Certificate Scrutiny reported in 2010 (6) Mh.L.J. 401, wherein it is held that, once a caste claim in blood relative is decided then Committee cannot refuse the same status to his/her blood relative who applies. The common judgment dated 16/07/2018 is passed in Writ Petition Nos. 1009/2017, 1010/2017 and 1073/2017 as well as the common judgment dated 11/09/2019 is passed in Writ Petition Nos. 6023/2019 and 6025/2019.
10. The Scrutiny Committee erred in holding that the traits, characteristics, customs, traditions, rituals, festivals, etc. of the caste ‘Kachi’ of the petitioner does not match with caste – Kachi, Kushwaha, Shakya, Morya, Murai and Saini which are at Sr. No. 85.
11. It is submitted that the petitioner is not having any other alternate and equally efficacious remedy available other than preferring the instant Writ Petition before this Court. The impugned order is illegal and the same needs to be quashed and set aside.
12. We have heard learned Counsel for petitioner as well as learned AGP for respondent No.1- District Caste Scrutiny Committee. Perused the record and proceedings of Scrutiny Committee- respondent No.1 with the assistance of learned AGP. The petitioner placed on record family tree at page No.34. The petitioner placed on record various documents of her relatives along with her application. In fact, there was no necessity to conduct any enquiry through vigilance cell, however, it was directed by the Scrutiny Committee. There was no contrary remark in documents submitted by the petitioner for verification of her caste claim in vigilance enquiry. It appears that the Scrutiny Committee rejected the caste claim on the ground that the caste ‘Kachi’ claimed by the petitioner is not included in the caste at Sr. No.85 in the Other Backward Category list. It is held by the Caste Scrutiny Committee that caste ‘ Kachi’ of the petitioner is different from caste ‘Kacchi’. The caste ‘Kachi’ at Sr. No.85 is a sub caste of Kachi, Kushwaha, Shakya, Morya, Murai and Saini. It is also held that the affinity test of the petitioner’s caste ‘Kachi’ does not match with the caste of Kachi, Kushwaha, Shakya, Morya, Murai and Saini, which are at Sr. No.85. There are caste validity certificate issued in favour of petitioner’s sister and brother. Those were not considered even the documents prior to the deemed date were ignored by the Scrutiny Committee. The validity certificates in favour of cousin were discarded on the ground that petitioner failed to establish relationship between them. It was not mentioned in the notice nor in the vigilance cell report. As such, affidavit of father of cousin of petitioner Ayesha stating therein the relationship with the petitioner needs to be considered. The oldest document in respect of Wali Mohd., great grandfather of petitioner is of the year 1920 wherein he has shown as ‘Kachchi’. There are other old documents pertaining to year 1946, 1955 in which grandfather of petitioner shown as ‘Kachi’ and extract of birth record of his son, namely Harun admitted in school on 01/07/1955 wherein he has shown as ‘Kachi’. The entries showing Muslim are of 1970 onward.
13. Learned Council for the petitioner also brought to our notice the Government Circular dated 12/12/2023, which is subsequent to passing of the order by the Caste Scrutiny Committee, wherein it is made clear vide Government letter dated 26/09/2008, a comprehensive list was published wherein at Sr. No.85, ‘Kachi’ (dPkh@dPph@dPNh) caste was included. However, vide letter dated 18/10/2012, it is further clarified that there were difficulties faced by people and students who belongs to ‘Kachi’ and ‘Kachchi’ to get caste certificate and caste validity certificate. Therefore, it was under consideration of the Government to issue guidelines for smooth issuance of caste certificate in favour of persons belonging to ‘Kachi/Kacchi/Kachchi’. Sr. No.85 accordingly amended. The authorities were directed to issue certificate of Other Backward Category to the person belonging to ‘Kachi/ Kacchi/Kachchi’.
14. In view of the Government instruction clarifying the position, it is no more open to the Committee to reject the claim of the petitioner. There is no dispute about the family tree, which is at Page No.37. There is already a certificate issued by the Scrutiny Committee in favour of Ayesha Faruk Memon. Fatima is cousin of Ayesha. The documents produced in support of claim reveals that there are as many as 12 documents wherein father, brother, cousin, grandfather, great grandfather, cousin grandfather, all are shown as ‘Kachi’. In some document, after 1970, it is written as ‘Muslim’. However, Muslim is the religion and not the caste.
15. It appears that Caste Scrutiny Committee without verifying the affidavit along with family tree concluded that relationship with Ayesha is not established. The contention that ‘Kacchi’ is not mentioned at Sr. No.85 is unjustful specifically does not survive in view of the said Government Circular dated 12/12/2023 clarifying the position. The Caste Scrutiny Committee in spite of the fact that the documents referring the caste on the paternal relatives of the petitioner as ‘Kachi’ cannot interpret it differently and came to the erroneous conclusion. ‘Kachi’ is already included in the list of Other Backward Category at Sr. No.85. It is directed to consider caste ‘Kachi, Kachchi and Kacchi’ as one and the same caste.
16. It is also a contention of the Caste Scrutiny Committee that the corrigendum dated 18/10/2012 is not based on Government Resolution. The instructions given by the State of Maharashtra was given to all competent authorities. As such, it is binding on Caste Scrutiny Committee also. The Caste Scrutiny Committee has not taken any steps to cancel the caste validity certificate issued in respect of cousin Ayesha. As such, we are of the considered opinion that petitioner has duly established on the basis of documents and validity certificate that she belongs to ‘Kachi’ Community which is at Sr. No.85. Accordingly, we pass the following order:
"ORDER
i) The Writ Petition is allowed.
ii) The order dated 12/04/2023 passed by the respondent No.1/District Caste Scrutiny Committee, Akola, in Case No. ED-2022/0654379 is hereby quashed and set aside.
iii) It is declared that the petitioner belongs to ‘Kachi’ Scheduled Tribe which is Sr. No.85 in the comprehensive list of the Other Backward Category.
iv) The District Caste Scrutiny Committee, Akola shall issue validity certificate to the petitioner within a period of four weeks from today."
17. Rule is made absolute in above terms. No costs.
