Pramod S/O. Vitthalrao Pakhale vs The Scheduled Tribe Caste ...
2016 Latest Caselaw 6451 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                              
                                     NAGPUR BENCH : NAGPUR




                                                                      
                                   Writ Petition No.2356 of 2005




                                                                     
    Pramod s/o. Vitthalrao Pakhale,
    Aged about 36 years, Occ. Service
    in M.S.R.T.C., r/o. Dildarpura,
    Post & Tq. Achalpur, Distt.




                                                         
    Amravati.                                                        ....             PETITIONER


                    //Versus//
                                
                               
    1. The Scheduled Tribe Caste
        Certificate Scrutiny Committee,
        Amravati, through its Secretary,
        Amravati.
      


    2. The State of Maharashtra,
   



        through its Secretary,
        Department of Tribal Development,
        Mantralaya, Mumbai-32.





    3. Maharashtra State Road Transport
        Corporation, through its Divisional
        Controller, Amravati.                                        ....            RESPONDENTS

    _______________________________________________________________





                     Mr.R.S.Parsodkar, Advocate for the Petitioner.
                     Mrs.Mrunal Naik, Advocate for Respondent Nos. 1 and 2.
                     Mr.A.S.Mehadia, Advocate for Respondent No.3.
    _______________________________________________________________


                                                          CORAM : B.R. GAVAI & 
                                                                         V.M. DESHPANDE, JJ.

DATED : November 15, 2016.

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

1. By the present petition, the petitioner is questioning

correctness of the order passed by respondent no.1/Scheduled Tribe

Caste Certificate Scrutiny Committee (hereinafter referred to as "the

Committee" for the sake of brevity), dt.30.3.2005, by which the claim of

the petitioner for validation of his caste claim as 'Halbi' is negatived by

the said Committee.

2. Heard Mr.R.S.Parsodkar, learned Counsel for the petitioner,

Mrs.Mrunal Naik, learned Counsel for respondent nos. 1 and 2 and

Mr.A.S.Mehadia, learned Counsel for respondent no.3.

3. The petitioner was appointed in the year 1995 as a 'Helper'

with respondent no.3/Maharashtra State Road Transport Corporation to

the post which was reserved for Scheduled Tribe. Since the petitioner

was appointed on the post reserved for Scheduled Tribe, his caste claim

was referred to the Caste Scrutiny Committee. The Committee, after

receipt of Vigilance Cell Report and after perusal of various documents

which were filed on record by the petitioner, reached to the conclusion

that though the documents filed on behalf of the petitioner pertain to

caste 'Halbi'; however, in the said documents, profession is shown as

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'weaving' and the Committee has also recorded a finding that the

petitioner has failed to pass the affinity test and therefore, rejected the

caste claim of the petitioner.

4. The learned Counsel for the petitioner submitted that the

order passed by the Caste Scrutiny Committee cannot stand to the

scrutiny of law in view of the decision given by Their Lordships of the

Apex Court in the case of Anand .vs. Committee for Scrutiny and

Verification of Tribe Claims and Others reported in 2011 (6) Mh.L.J.

919 and also observations made in the said Judgment which were

followed by this Court in the case of Priya Pravin Parate .vs. Scheduled

Tribe Caste Certificates Scrutiny Committee, Nagpur and Others

reported in 2013 (1) Mh.L.J. 180.

5. Learned Counsel for the petitioner invited our attention to the

document pertaining to year 1927. It is in respect of Vitthal Seetaram

Pakhale. The said document is extract of admission register duly

maintained by School run by Municipal Council, Achalpur. It pertains to

father of the petitioner and it shows that father of the petitioner was

born on 3.11.1915. In the said Dakhal Kharij register, the caste is

mentioned as 'Halbi'. Similarly, he invited out attention to the Transfer

Certificate issued by the School in which father of the petitioner took

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primary education. The said document shows that father of the

petitioner was in the School from 25.4.1927 to 15.8.1927 and his caste

is shown as 'Halbi'. Learned Counsel also invited our attention to the

Transfer Certificate of Seetaram, real uncle of petitioner, which also

shows the caste as 'Halbi'. Authenticity of these particular documents is

not disputed by the learned Counsel appearing on behalf of the

respondents.

6.

From the aforesaid documents, it is crystal clear that the pre-

independence documents, which were filed on record by the petitioner,

clearly show his caste as 'Halbi'. Therefore, merely because the affinity

test is not passed by the present petitioner, that cannot be the reason for

invalidation of his Caste claim. It would be useful to refer the following

observations of Hon'ble Apex Court in the case of Anand Katole (cited

supra) :

"18. 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, which would include the anthropological and ethnological 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

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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, 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

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the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by 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."

7. In view of the law laid down by the Hon'ble Apex Court in the

aforesaid case, the affinity test cannot be held to be a litmus test for the

purpose of reaching to the conclusion as to whether the claim for

validation of caste claim can be decided only on the basis of affinity test

especially when pre-independence documents are available on record

showing about caste of a particular candidate.

8. It would be also useful to refer to the decision of this Court in

the case of Priya Pravin Parate (cited supra) specially in paragraph no.10

in which this Court has referred to various portions of the book authored

by R.V.Russell on Tribes and Castes of the Central Provinces of India

published in 1916 as well as Gazetteer for Amravati District which shows

that the original Halba/Halbis who had migrated from Bastar to various

parts of Berar including Achalpur, have taken the profession of weaving.

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Therefore, merely because the profession is mentioned as 'weaving' in

some of the documents, that cannot be a criteria to decide the caste

claim of the petitioner adversely.

9. In view of the aforesaid, we are of the view that the order

passed by respondent no.1/Committee cannot stand to the scrutiny of

law. The petition, therefore, needs to be allowed. The order

dt.30.3.2005 passed by respondent no.1 is hereby quashed and set aside.

It is declared that petitioner belongs to Halba/Halbi caste, a Scheduled

Tribe. Respondent no.1 is hereby directed to issue Validity Certificate in

favour of the petitioner that he belongs to Caste 'Halbi' within a period

of four weeks from today.

Rule is made absolute in the aforesaid terms. However, there

shall be no order as to costs.

                                   JUDGE                           JUDGE





    jaiswal