Smt. Sangita Sahebrao Bhalerao vs The State Of Maharashtra
2013 Latest Caselaw 333 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                      
               CIVIL APPELLATE JURISDICTION
              WRIT PETITION NO. 6744 OF 2011




                                              
    Smt. Sangita Sahebrao Bhalerao        )
    Age 23 years, Adult, Occ: Service     )
    R/at: 28A/204, New MHADA              )
    Colony, New Dindoshi, New Malad,      )




                                             
    Shivshai Prakalp,Malad (E)-400097     ) .... Petitioner.

                   V/s




                                  
    1. The State of Maharashtra            )
    through its Secretary to the Tribal
                          ig               )
    Development Department,                )
    Mantralaya, Mumbai - 400 032           )
                                           )
                        
    2. Scheduled Tribe Certificate         )
    Scrutiny Committee, Konkan             )
    Region, Thane.                         )
                                           )
       


    3. Brihan Mumbai Electric Supply &)
    Transport Undertaking, through         )
    



    Senior Personal Assistant having )
    its Office at BEST Bhavan, BEST )
    Marg, Colaba, Mumbai - 400001          )





                                           )
    4. The Additional District Dy.         )
    Collector, M.S.D., Andheri, having )
    its office at Tahsildar Borivali,      )
    Opposite Haridas Nagar,                )





    Shimpoli Road, Borivali (West),        )
    Mumbai 400 092                         ) ..... Respondents.
    ----
    Mr. R.S. Apte, Senior Counsel with Mr. Ramesh Dubey Patil
    i/b M/s. Jay & Co. for the Petitioner.
    Mr. V.P. Malvankar, AGP for Respondent Nos. 1, 2 and 4.
    Mr. R.L. Singh i/b M.V. Kini & Co. for Respondent No.3.
    ----




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              CORAM:      V. M. KANADE &
                          M.S. SONAK, JJ.

DATE: 12th December, 2013

ORAL JUDGMENT (Per V.M. Kanade, J.)

1. Heard the learned Senior Counsel appearing on behalf

of the Petitioner and the learned Counsels appearing on

behalf of the Respondents.

2. Rule. Rule is made returnable forthwith. Respondents waive service. By consent of the parties, Petition is taken up for final hearing.

3. Petitioner is aggrieved by the judgment and order passed by Respondent No.2. - Caste Scrutiny Committee which had invalidated the caste claim of the Petitioner by its

order dated 06/07/2011.

4. Brief facts which are relevant for the purpose of

deciding this Petition are as under:-

5. Petitioner claims that she belongs to Thakur Caste which is the Scheduled Caste shown at Serial No.44 under the List of Scheduled Tribes as notified by the State of

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Maharashtra. Petitioner's father had filed an application for

obtaining Caste Certificate for his children. However his application was rejected by the Sub-Divisional Officer,

Yavatmal by order dated 18/09/2000 on the ground that the Petitioner's father was then residing at Mumbai and,

therefore, he did not have jurisdiction to decide the said application.

6. Thereafter, Petitioner filed Writ Petition in this Court

vide Writ Petition No.5599 of 2000. This Court granted liberty to the Petitioner to make an application to the

Competent Authority in Mumbai. Accordingly, an application was preferred to the District Deputy Collector, Mumbai Suburban District i.e. Respondent No.4 herein. The said

application was also dismissed and the order was confirmed

by Respondent No.2. Again, a second Writ Petition was filed vide Writ Petition No.4384 of 2002 in this Court. This Court again directed Respondent No.4 to consider the application

expeditiously. Thereafter, Respondent No.4 allowed the application and issued Caste Certificate in favour of the Petitioner on 16/11/2002.

7. In the meantime, Respondent No.3 had initiated recruitment drive to clear the backlog of Scheduled Tribe Category for the post of Supervisors. Petitioner received a call from the Employment Exchange and, thereafter, she

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preferred an application and she was held to be eligible to

appear for the test for the post of Supervisor. Petitioner appeared for the said written test and she was informed that

she had passed the said test and, thereafter, she was called for an interview. On 04/11/2010, she was informed that she

had also passed the said via voce test which was held on 20/10/2010.

8. Respondent No.3, thereafter, asked the Petitioner to submit Caste Authority.

Validity Certificate from the She thereafter preferred an application on Competent

19/11/2010 to Respondent No.2. Alongwith the said application, she also submitted all the relevant documents. Vigilance Officer also submitted positive report in favour of

the Petitioner. Her application was, however, dismissed. The

decision of the Caste Scrutiny Committee was communicated to Respondent No.3 and, thereafter, Petitioner was informed that her name had been removed from the waiting list of

Supervisor.

9. Mr. Apte, the learned Senior Counsel appearing on

behalf of the Petitioner submitted that the Caste Scrutiny Committee had invalidated the claim of the Petitioner only on the ground that the Petitioner had not established her affinity to the Thakur Scheduled Caste and ignored the documentary evidence which was produced on record. Secondly, it was

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contended that the Caste Scrutiny Committee had observed

that Family of the Petitioner was a permanent resident of Satefal, Taluka Ner, District Yavatmal and, as such, the

Petitioner's family did not come from the Districts which were earmarked for the said Thakur Scheduled Tribe. It was

observed that in view of the area restriction, Petitioner did not come from the said 25 Tahsils of five Districts viz. Ahmedbanagr, Kolaba, Nashik, Pune and Thane of State of

Maharashtra. Reliance was placed by the Caste Scrutiny

Committee on the judgment of this Court in Writ Petition No.7813 of 2009 (2010 (I) ALL MR 642] in Dattu s/o Namdev

Thakur v/s State of Maharashtra. It was submitted that the Apex in Palghar Jilla Thandan Samudhaya Samraskshna Samithi & Anr vs. State of Kerala & Anr 1. had held that area

restriction was no longer applicable and merely because

Petitioner's family had migrated from Yavatmal that by itself could not invalidate the claim of the Petitioner belonging to Thakur Scheduled Tribe.

10. The learned Senior Counsel appearing on behalf of the Petitioner also relied on the recent judgment of the Apex

Court in Anand vs. Committee for Scrutiny and Verification of Tribe Claims & Ors2. Lastly, it was contended that though the Petitioner had given correct answers to establish the affinity, the Committee in its impugned order had merely observed

1 (1994) 1 SCC 359 2 (2012) 1 SCC 113

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that information furnished by the Petitioner was not

consistent with the Thakur Scheduled Tribe Community. It was contended that the said observation was also incorrect

and that, in fact, correct information was given by the Petitioner regarding her Thakur Scheduled Tribe. It was,

therefore, submitted that even on the question of affinity, finding which was given by the Committee was incorrect.

11. On the other hand, the learned Counsel appearing on

behalf of the State submitted that the Full Bench of this Court in Shilpa Vishnu Thakur and others vs. State of Maharahstra 1

had clearly observed that affinity test was one of the important criteria which had to be taken into consideration by the Committee for the purpose of deciding whether the

applicant belonged to that particular Scheduled Tribe or

Caste. It was submitted that the Scrutiny Committee, therefore, had relied on the said judgment and held that the Petitioner had not fulfilled the said criteria and had failed to

establish her affinity to the said Thakur Caste. It was, therefore, submitted that no case was made out for interfering with the impugned order passed by the

Committee.

12. After having heard both the Counsels at length, in our view, there is much substance in the submissions made by the learned Senior Counsel appearing on behalf of the 1 Full Bench Judgment dated 07/05/2009 in WP 5028 of 2006

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Petitioner. It is an admitted position that Vigilance Cell

Report is in favour of the Petitioner. The said Report was submitted after statements of various persons were

recorded. The said Report has not been properly considered by the Committee. Secondly, the Committee has ignored the

decision of the Supreme Court in Palghar Jilla Thandan Samudhaya Samraskshna Samithi & Anr vs. State of Kerala & Anr1. The Apex Court in the said case has clearly held that

the area restriction having been removed, it was not open for

the Committee to have rejected the Petitioner's caste claim on that basis. Thirdly, the Committee has also held that the

Petitioner had not established her affinity test to the said Caste. Petitioner had given following answers in her statement recorded on 28/3/2011 which are found in para

3(a) of the impugned order, which reads as under:-

"3(a) The statement of the applicant recorded on 28/03/2011 wherein she has

stated that :-

(1) Our Community dialect and mother tounge is Marathi. Also our dialect is 'Varhadi'.

(2) The surnames in our community are Wankhede, Ingale, Bisale, Suryawanshi and Thakur etc.

(3) Our Kuldaivat is Kanhoba situated at Tiwari Amla, Tahsil-Darva. We also worship 1 (1994) 1 SCC 359

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Marimay

(4) I am unaware of traditional dance of our community.

            (5)    I am unaware of Jat Panchayat.

            (6)  I do not know about the Head of the




                                                  
            Panchayat.

            (7) There is no dowry system in our
            community."




                                      
                          

The Committee has observed that the Research Officer has stated that the information given by the applicant regarding

the traits, characteristics, customs and traditions are not associated with the traits, characteristics, customs and traditions of Thakur, Scheduled Tribe.

13. The learned Senior Counsel appearing on behalf of the Petitioner has submitted that the observation of the Committee that the answers which were given by the

Petitioner did not establish her affinity is also incorrect. He submitted that the correct information was given by the Petitioner and in spite of that the Committee wrongly held

that affinity test was not established.

14. Apart from that, Petitioner has established by documentary evidence that the caste of her ancestral was shown as Thakur in the school record and, therefore, the

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Committee had clearly erred in rejecting her claim only on

the ground that affinity test was not established. The Apex Court in Anand (supra) has observed in para 22 as under:-

"22. It is manifest from the afore-extracted

paragraph that the genuineness of a caste claim has to be considered not only on a thorough examination of the documents submitted in

support of the claim but also on the affinity test,

ethnological

which would include the anthropological and traits etc., of the applicant.

However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim.

Nevertheless, we feel that the following broad

parameters could be kept in view while dealing with a caste claim:

(i) While dealing with documentary evidence,

greater reliance may be placed on pre- Independence documents because they furnish a higher degree of probative value to

the declaration of status of a caste, as compared to post-Independence documents. In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult,

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but that ipso facto does not call for the

rejection of his claim. In fact the mere fact that he is the first generation ever to attend

school, some benefit of doubt in favour of the applicant may be given. Needless to add

that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an

opportunity has to be afforded to the applicant;

(ii) While

applying the affinity test, which

focuses on the ethnological connections with the scheduled tribe, a cautious approach has to be adopted. A few decades ago, when

the tribes were somewhat immune to the

cultural development happening around them, the affinity test could serve as a determinative factor. However, with the

migrations, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may

not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by

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an applicant that he is a part of a scheduled

tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded

on the ground that his present traits do not match his tribes' peculiar anthropological

and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies

etc. Thus, the affinity test may be used to

corroborate the documentary evidence and should not be the sole criteria to reject a

claim."

The Apex Court, therefore, has clearly held that the affinity

should not be regarded as a sole criteria for establishing a

link of the Applicant with the Schedule Tribe. It is further held that affinity test may be used to corroborate documentary evidence and should not be the sole criteria to

reject the claim. The impugned order, therefore, will have to be set aside. From the chronology of events it can be seen that the Petitioner had to file as many as 4 Petitions in this

Court. Petitioner belongs to Thakur Scheduled Tribe. She is not yet employed since her name has been removed from the waiting list. It would be unfair under these circumstances to again remand the matter and relegate the Petitioner before the Caste Scrutiny Committee.

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15. Petition is therefore allowed. The impugned order passed by the Caste Scrutiny Committee dated 06/07/2011 is

quashed and set aside. Respondent No.2 is directed to issue Caste Validity Certificate in favour of the Petitioner.

16. When the Petition was heard at the time of admission, interim relief was granted in terms of prayer clause (e) which

reads as under:-

"(e) Pending the hearing and final disposal of the present Writ Petition, this Hon'ble

Court be pleased to stay the execution and/or operation and/or implementation and/or effect of the impugned Communication No.CPO/R/44092/2011

dated 15-7-2011 issued by Respondent No.3;"

We are informed by the learned Counsel appearing on behalf

of Respondent No.3 that waiting list was in existence only for a period of two years and, therefore, the Petitioner now cannot be appointed to the post of Supervisor, reserved for the Scheduled Tribe.

17. In our view, since by virtue of the interim order which was granted by this Court, operation and implementation of the impugned communication dated 15-7-2011 was stayed by this Court, Petitioner would be entitled to seek revival of

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her claim to the post of Supervisor. We, therefore, direct the

Petitioner to approach Respondent No.3 making a fresh representation seeking her appointment on the said post.

Interim order passed by this Court shall continue for a period of four weeks. Respondent No.3 shall consider the

representation made by the Petitioner on merits and in accordance with law.

18. Petition is allowed in the aforesaid terms and the Rule

is made absolute accordingly.

         (M.S. SONAK,      J.)                 (V.M. KANADE, J.)
        
     






    B.D. Pandit

    PS