Vaishali Liladhar Mahale vs State Of Maharashtra Through Its ...
2017 Latest Caselaw 4510 Bom

                                                        906-WP-4504-2014.DOC




 Jsn




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION


                    WRIT PETITION NO. 4504 OF 2015

 Vaishali Liladhar Mahale
 Aged years, R/at. C/o. Fergusson College,
 Pune, 25/2, Club Road, Ordnance Estate,
 Khadki, Pune.                                                ...Petitioner

         Versus

 1. The State of Maharashtra
 Thru its Secretary,
 Tribal Development Department,
 Mantralaya, Mumbai 400 032.

 2. Scheduled Tribe Certificate Scrutiny
 Committee, Nandurbar Thru. Its Member
 Secretary, having its office at Nandubar,
 Dist. Nandurbar.

 3. Deccan Education Society's
 Fergusson College, Pune,
 25/2, Club Road, Ordnance Estate,
 Khadki, Pune.

 4. University of Pune
 Thru its Registrar, Pune,
 Dist. Pune.                                            ...Respondents


 Mr R.K. Mendadkar, Adv with Mr C.K. Bhangoji, Adv. for the
      Petitioner.
 Mr. Bhupesh Samant, AGP for Respondents - State.




                                Page 1 of 9
                               14th July 2017


::: Uploaded on - 20/07/2017                    ::: Downloaded on - 21/07/2017 23:33:29 :::
                                                              906-WP-4504-2014.DOC




                               CORAM : B.R. GAVAI AND
                                       RIYAZ I. CHAGLA, JJ.

DATED: 14th July 2017 PC:-

J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. Rule. Rule made returnable forthwith. Heard by

consent.

2. The Petitioner by the present Petition is challenging

order dated 26th March 2015 passed by Respondent No.2 -

Scheduled Tribe Certificate Scrutiny Committee, whereby the

Petitioner's caste certificate belonging to "Thakur" Scheduled

Tribe ("ST") has been invalidated.

3. The Petitioner had been appointed by Respondent No.3

college as Assistant Professor under reservation category of

ST on 21st November 2005. The caste certificate of the

Petitioner had been forwarded to Respondent No.2 for

verification by the Head master of Shri Swami Samarth

Madhyamik Vidyalay, Shindkheda, Dist. Dhule on 16th August

2005 on which date the Petitioner had been appointed as

14th July 2017

906-WP-4504-2014.DOC

"Shikshan Sevak". The Petitioner had produced pre-

constitutional document of her real grandfather and cousin

grandfather in which the caste was recorded as "Thakur" on

1st September 1922 and 2nd August 1930. The Petitioner

had also forwarded the birth record of her father whose caste

was recorded as "Thakur" in the year 1949. The caste

validity certificate had also been granted to two real brothers

which were also produced by the Petitioner. The Vigilance

Cell Officer conducted an inquiry and during the inquiry the

statement of the Petitioner's father was recorded. The report

of the Vigilance Cell Officer was submitted to Respondent

No.2 on 5th June 2006. The Respondent No.2 issued show

cause notice along with an inquiry report on 16th September

2014. The Petitioner filed her reply to the show cause notice

and inquiry report and produced various documents including

the documents referred above in support of her claim for

caste certificate validation. The Respondent No.2 called the

Petitioner for hearing and the Petitioner along with her father

and uncle appeared and filed their written say and the

Petitioner also pointed out that the area restriction had been

removed by Act No. 108 of 1976 and benefits of reservation

14th July 2017

906-WP-4504-2014.DOC

have been extended to the Thakur tribe throughout the

Maharashtra State. The position of removal of area

restriction is well settled in the judgment of Madhuri Nitin

Jadhav & Ors. Vs. State of Maharashtra & Ors.1 which

Division Bench judgment of this Court has been upheld by

the Supreme Court in SLP No. 25000 of 2014. Respondent

No.2 was accordingly requested to issue the caste validity

certificate in favour of the Petitioner. Respondent No.2

having not issued a caste validity certificate was approached

again by the Petitioner vide an application which placed on

record caste validity certificates granted to the Petitioner's

cousin uncle and cousin brother along with supporting

Affidavits. The Petitioner also produced the order of the

Supreme Court (Supra) and produced other relevant

authorities and once again requested the Respondent No.2

to grant the Petitioner the caste validity certificate. However,

the Respondent No.2 invalidated the caste certificate of the

Petitioner by the impugned order.

 1       2014(4) Bom.C.R. 753.



                                  14th July 2017



                                                         906-WP-4504-2014.DOC

4. Shri Mendadkar, the learned counsel appearing for the

Petitioner has contended that the Respondent No.2 has

erroneously held in the impugned order that the school

records of the relatives of the Petitioner show only caste

"Thakur" and not "Thakur ST". Shri Mendadkar contended

that this finding cannot be countenanced as classification of

"Thakur ST" itself came into force w.e.f. 6th September 1950

by the Constitution (Scheduled Tribes) Order, 1950. The

Petitioner's grandfather was admitted in school in 1922 and

there was no concept like ST then existing. Shri Mendadkar

had also submitted that the Respondent No.2 answered the

issue with regard to affinity test in the negative without

inquiring as to how the documents furnished by the Petitioner

do not support her caste claim of "Thakur ST". Shri

Mendadkar further contended that this issue is no longer res

integra as this has been decided in the Division Bench

judgment of this Court in the case of Madhuri Nitin Jadhav

(supra) where it has been held that affinity is not the sole

criteria either to grant and / or refuse caste claim / benefits,

although it is a very important element. The Scrutiny

14th July 2017

906-WP-4504-2014.DOC

Committee can be satisfied upon documents placed on

record and grant caste validity certificate based on the same.

5. Mr. Mendadkar has further submitted that the

Respondent No.2 has decided contrary to the judgment in the

case of Madhuri Nitin Jadhav (Supra) that area restriction is

one of the factors which are required to be taken into

consideration. Shri Mendadkar has also contended that the

Respondent No.2 has erroneously observed that "Thakur" in

the case of the Petitioner's blood relatives is an advance

caste. This finding is devoid of any merits and there is no

material on record remotely suggesting that the Petitioner

belongs that strata of the society. Shri Mendadkar has

accordingly submitted that Respondent No.2 has passed the

impugned order without following the settled law and ought to

be quashed and set aside.

6. Shri Samant, learned AGP for the Respondent No.1 is

not in a position to justify the impugned order other than

contending that the relations of the Petitioner are

educationally and economically well settled and they are not

14th July 2017

906-WP-4504-2014.DOC

tribles living in hilly and forest area and the caste is only

shown as "Thakur" and not "Thakur ST". Shri Samant has

not been able to counter Shri Mendadkar's contention that the

area restriction in the State of Maharashtra no longer applies

after its removal in the year 1976 by Act No. 108 and benefits

of reservation have been extended to "Thakur ST" throughout

Maharashtra State.

7. We are of the considered view that the present Petition

is squarely covered by the judgment of the Division Bench of

this Court in Madhuri Nitin Jadhav (Supra) which has been

confirmed by the Hon'ble Supreme Court in SLP No. 25000 of

2014. We are of the view that the Petitioner has been able to

establish by documentary evidence including pre-

constitutional documents that the Petitioner's caste is that of

"Thakur ST". We are of the view that the Petitioner's

documents could have only referred to the Petitioner's

grandfather and cousin grandfather's caste as "Thakur" and

not as "Thakur ST" as "ST" came into force w.e.f. 6th

September 1950 by the Constitution (Scheduled Tribe) Order,

1950. We are of the considered view that the Petitioner has

14th July 2017

906-WP-4504-2014.DOC

been able to prove her affinity to the "Thakur ST" and that the

Respondent No.2 has erroneously held, contrary to the well

settled position of law, that the Petitioner's claim has not been

sustained by way of affinity test. In any event, based on the

judgment of Madhuri Nitin Jadhav (Supra), the affinity test

is not the sole criteria to grant and / or refuse caste claim /

benefits and only if there were no documentary evidence

available then the affinity test may be a relevant factor.

8. We accordingly allow the present Petition with the

following order:-

ORDER

(a) For the reasons stated in the Writ Petition, the Petition is allowed. The impugned order 26th March 2015 passed by Respondent No.2 is quashed and set aside.

(b) It is held and declared that the Petitioner belong to Thakur, Scheduled Tribe. The Respondent No.2 - Scheduled Tribe Certificate Scrutiny

14th July 2017

906-WP-4504-2014.DOC

Committee is directed to issue Certificate of Validity within a period of four weeks from today.

         (RIYAZ I. CHAGLA J.)                     ( B.R. GAVAI J.)





                                14th July 2017