Afnan Ferozkhan Pathan vs The State Of Maharashtra And ...
2016 Latest Caselaw 5709 Bom

                                                                         923.odt
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD
                    923 WRIT PETITION NO. 6465 OF 2016
                                   WITH 




                                                                    
                      CA/13006/2016 IN WP/6465/2016 




                                            
           Afnan d/o Ferozkhan Pathan       ...  Petitioner 
           Age 18 years, Occu: Student
           R/o Near Sadat Masjid, Azam 
           Colony, Roshan Gate, Aurangabad.




                                           
           VERSUS

    1.     The State of Maharashtra,
           Through  its Secretary,




                                       
           Tribal Development Department,
           Mantralaya, Mumbai 400 032
                                  
    2.     The Scheduled Tribe Certificate 
           Scrutiny Committee, Aurangabad 
                                 
           Division, Aurangabad

    3.     The Sub Divisional Magistrate,
           Aurangabad
      


    4.     The Directorate of Medical 
   



           Education and Research, 
           C.E.T.Cell, Opp. Govt. Dental 
           College & Hospital Building, St. 
           George's Hospital Compound, Near 





           C.S.T. Railway Station, Mumbai-1

    5.     All India Institute of Medical 
           Science, Gautam Nagar, Ansari 
           Nagar East, New Delhi 110 029





    6.     The Dean, Mahatma Gandhi 
           Institute of Medical Sciences, 
           Sevagram, Wardha

    7.     The Maharashtra University of     ...  Respondents 
           Health Sciences, Nashik, Through 
           its Registrar


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                                                                                      923.odt
        Advocate for Petitioner : Mr. S. B. Talekar i/by 
                     Talekar And Associates 
    AGP for Respondents 1 to 4 State: Mrs. M. A. Deshpande 
         Advocate for Respondents 8 and 9: Mr. A. V. Hon




                                                                                
                       (Added respondents)




                                                        
                                         CORAM   :  S. V. GANGAPURWALA & 
                                                     K. L. WADANE, JJ.
                                          DATE   :   29th September, 2016




                                                       
    JUDGMENT (Per S. V. Gangapurwala, J.) :

1. Heard the learned counsel for the parties.

2.

Rule. Rule made returnable forthwith. With

consent of parties, the petition is taken up for final

disposal

3. The tribe claim of the petitioner as belonging

to Tadvi, Scheduled Tribe has been invalidated.

Aggrieved thereby, the present petition.

4. Mr. Talekar, the learned counsel for the

petitioner states that the petitioner had filed ample

evidence on record substantiating her claim as

belonging to Tadvi, Scheduled Tribe. The school record

of the petitioner mentions caste of the petitioner as

Tadvi so also the school record of the real brother

of the petitioner states the caste as Tadvi, School

record of the real aunt of the petitioner states the

923.odt caste as Tadvi. The learned counsel submits that apart

from the said documents on record, father of the

petitioner has been issued validity certificate as

belonging to Tadvi, Scheduled Tribe, so also real aunt

of the petitioner has been issued validity as belonging

to Tadvi, Scheduled Tribe. Two real uncles of the

petitioner are issued validity certificate as belonging

to Tadvi, Scheduled Tribe. Learned counsel submits

that inspite of the said evidence on record, the tribe

claim of the petitioner is invalidated. According to

the learned counsel, the affinity test cannot be the

sole ground to reject the tribe claim. It can only be a

corroborative piece of evidence. The learned counsel

relies on the judgment of Division Bench of this Court

in a case of Sanjay Bajirao More and another Vs. The

State of Maharashtra and others, reported in 2015 (6)

Mh.L.J. 822.

5. Mrs. Deshpande, the learned AGP, states that

only because the tribe claim of some family members of

the petitioner are validated, that cannot ipso facto

be a ground for granting validity to the petitioner.

Each case has to be independently considered on the

basis of evidence before the Committee. The father of

923.odt the petitioner was granted validity only on the ground

that one Sartaj Khan, member of the family, has been

granted validity. The validity is granted to him

without conducting vigilance. As such the same would

not be a material fact. The learned AGP relies on the

judgment in a case of Raju Ramsing Vasave Vs. Mahesh

Deorao Bhivapurkar & ors. reported in 2008 (9) SCC 54.

The learned AGP further submits that in the school

record of the father and real uncles of the petitioner,

the caste is mentioned as Muslim and Islam. Tadvi caste

is not recorded in their school record. The petitioner

also could not pass the affinity test. All these

aspects have been considered by the Committee and the

Committee, on detail appreciation of the relevant

material on record, has negatived the tribe claim of

the petitioner. No illegality has been committed by the

committee while invalidating the tribe claim of the

petitioner.

6. We have considered the submissions canvassed by

the learned counsel for respective parties.

7. It is a mater of record that the father of the

petitioner Fiorozkhan Pathan has been granted validity

certificate. Uncle of the petitioner namely Minajkhan

923.odt has been granted validity certificate under the order

of this Court in Writ petition No. 1759 of 1994 dated

15th June, 1994. The another uncle of the petitioner

Sartajkhan Saheblal Pathan has also been granted

validity under the order of this Court in Writ Petition

No. 2044 of 1993, dated 5th July, 1993. Real aunt of the

petitioner has also been granted validity by the

Committee itself. The caste appearing as Muslim and

Islam/Momedian in the school record of the father and

uncles of the peitioner cannot be said to be a contra

evidence as the said entry is not that of a caste but

of a religion.

8. It is settled proposition of law that affinity

test cannot be the sole ground for determining the

caste/tribe. It can, at the most, be used as a

corroborative evidence. In the present matter, there

is absolutely no contra evidence on record. On the

contrary, validity certificates are issued to the

members of the family of the petitioner on the paternal

side. Father, two real uncles and real aunt of the

petitioner are issued validity certificates as

belonging to Tadvi, Scheduled Tribe.

9. Considering the aforesaid overwhelming evidence

923.odt on record, there is no impediment to arrive at the

conclusion that the petitioner belongs to Tadvi,

Scheduled Tribe.

10. In the light of above conspectus, the impugned

judgment and order is quashed and set aside.

11. The respondent No.2 Committee shall issue

validity certificate to the petitioner as belonging to

Tadvi, Scheduled Tribe.

12.

Rule is made absolute accordingly. There shall

be no order as to costs.

13. In view of disposal of writ petition, civil

application also stands disposed of.

(K. L. WADANE, J.) (S. V. GANGAPURWALA, J. )

JPC