Atul Bhaskar Thakar vs State Of Maharashtra And Others
2017 Latest Caselaw 4954 Bom

 sng                                                 1                        wp-7215.16




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION
                      WRIT PETITION NO.7215 OF 2016



 Atul Bhaskar Thakar.                             ..    Petitioner
       Vs
 State of Maharashtra and Others.                 ..    Respondents
       -

Shri R.K. Mendadkar along with Shri Tanaji V. Jadhav for the Petitioner. Ms.N.M. Mehra, AGP for the Respondents.

-

                                CORAM  :      A.S. OKA & 
                                              SMT. VIBHA KANKANWADI, JJ

                                DATED    :    24TH JULY 2017


 ORAL JUDGMENT : (PER A.S.OKA, J) 

1. Submissions of the learned counsel appearing for the

parties were heard on the earlier date.

2. Rule. The learned AGP waives service for the Respondents.

Forthwith taken up for final disposal.

3. The Petitioner was granted Caste Certificate dated 24 th July

2007 by the Sub-Divisional Officer, Madha Division, Kurduwadi,

District-Solapur recording that the Petitioner belongs to the caste

"Thakar" which is a Scheduled Tribe. By the impugned order, the Caste

sng 2 wp-7215.16

Scrutiny Committee has invalidated the caste certificate issued to the

Petitioner.

4. The learned counsel appearing for the Petitioner invited

our attention to Paragraph 4 of the impugned order as well as the caste

validity certificates relied upon by the Petitioner of Shri Harishchandra

Dattatraya Thakar, Shri Anil Kaka Thakar, Ms.Artika Ramdas Thakar

and Shri Amol Ramdas Thakar. He submitted that the caste validity

certificate was issued to the said Harishchandra Thakar by a speaking

order after holding an inquiry through Vigilance Cell. He submitted

that the caste validity certificates were issued to the said Anil, Amol and

Artika on the basis of the caste validity certificate issued to Shri

Harishchandra Thakar. He urged that the relationship between the

Petitioner and the said four persons was established as set out in the

affidavit which is on Page 76 of the Petition. He urged that in view of

the law laid down by this Court as well as by the Apex Court, the caste

validity certificate issued to the said Harishchandra Thakar ought to

have been taken into consideration and it could not have been brushed

aside on the ground that the affinity test was not conducted.

5. The learned AGP appearing for the Respondents supported

the impugned order by pointing out that for rejecting the material in

the form of the caste validity certificate of Harishchandra, reasons have

sng 3 wp-7215.16

been recorded by the Caste Scrutiny Committee in Paragraph 12 of the

impugned order. He, therefore, submitted that no interference is called

for.

6. We have considered the submissions. We have perused the

additional affidavit placed on record. Along with an additional affidavit

dated 12th July 2017, the Petitioner has placed on record a copy of the

Vigilance Cell inquiry made in the case of Harishchandra which was

submitted to the Caste Scrutiny Committee through the Deputy

Superintendent of Police, who was incharge of the Vigilance Cell. Our

attention is also invited to the order dated 14 th May 2002 passed by the

Caste Scrutiny Committee. The Caste Scrutiny Committee has passed a

reasoned order granting caste validity certificate to Harishchandra after

examining the Vigilance Cell Report. Various documents have been

considered in the said order. We have perused the Vigilance Cell Report

and in particular Clause 4 under heading "C" and the statement of the

said Harishchandra. In the light of what is observed in the report of the

Vigilance Cell and the statement of Harishchandra, it cannot be said

that the cultural affinity is not considered. As far as the other three

caste validity certificates issued to Anil, Artika and Amol are concerned,

the same are on the basis of the caste validity certificate granted to Shri

Harishchandra.

sng 4 wp-7215.16

7. We have carefully perused Paragraph 12 of the impugned

order. In the impugned order, there is an observation that the cultural

affinity is required to be considered. The Committee has also recorded

that he has no jurisdiction to review earlier order passed in case of

Harishchandra. There is an observation made that in the present case,

as a special case, the High Court should have granted permission to

reconsider the case of Harishchandra. In Paragraph 13, the Caste

Scrutiny Committee has referred to various decisions of this Court and

the Apex Court. In fact, in the said paragraph, the Caste Scrutiny

Committee has quoted a relevant part of the decision of this Court in

the case of Kum. Manjiri Manikrao Kolikar vs. State of Maharashtra

and Others1. Relevant portion of the said decision reproduced by the

Caste Scrutiny Committee reads thus:-

"...Merely because the tribe claim of a relative has been validated, it would not automatically follow that the tribe claim of the candidate should also be validated. As pointed out us about such orders would have great persuasive value but the Committee is entitled to see if all the material was placed before the Committee at the time of consideration of the tribe claim of the relative. If the Committee finds that certain material had not been considered by the Committee and the said material shows caste contrary to the caste which has been held to be valid. In our considered opinion the Committee would be entitled to take different view in the matter and it would not be binding on the Scrutiny Committee to validate the certificate..."

sng 5 wp-7215.16

8. In the present case, the Caste Scrutiny Committee does not

seem to have adverted to the findings recorded in the order dated 14 th

March 2002 passed in favour of Harishchandra. The Caste Scrutiny

Committee has not come to the conclusion that there is no proper

inquiry held in case of Harishchandra. The Caste Scrutiny Committee

has not held that the certain material available before it was not

considered by the Caste Scrutiny Committee in the case of

Harishchandra. The Caste Scrutiny Committee has not even considered

the Vigilance Cell Report submitted in the said case. The Caste Scrutiny

Committee could not have brushed aside the caste validity certificate

granted to Harishchandra after holding a due inquiry. The Caste

Scrutiny Committee could not have brushed aside the material in the

form of caste validity certificates granted to the said Harishchandra and

three others and the effect of the same ought to have been taken into

consideration provided the relationship between the Petitioner and

Harishchandra and three others, as claimed by the Petitioner, is

established. There is no finding recorded by the Caste Scrutiny

Committee on the relationship between the Petitioner and the said

Harishchandra, Anil, Artika and Amol. If relationship is established, the

Caste Scrutiny Committee will have to look upon the caste validity

certificate granted to Harishchandra as a document having great

persuasive value.

sng 6 wp-7215.16

9. There is no option but to send back the matter to the Caste

Scrutiny Committee for a fresh inquiry on the aforesaid aspects.

10. Before we part with the judgment, it is very necessary for

us to note the findings recorded by the Caste Scrutiny Committee in

Paragraph 14. For that purpose, it is necessary to make a reference to

certain factual aspects. By the order dated 7th May 2010, the Caste

Scrutiny Committee had invalidated the caste validity certificate of the

Petitioner. By the order dated 27th August 2010, Writ Petition filed by

the Petitioner being Writ Petition No.5374 of 2010 was dismissed by a

Division Bench of this Court. In the year 2014, the Petitioner applied

for review of the said judgment and order. By the order dated 7 th April

2014, the Division Bench of this Court allowed the Review Petition and

by setting aside the order dated 7 th May 2010 of the Caste Scrutiny

Committee, an order of remand was passed on the basis of which the

impugned order in this Petition has been passed. It appears that the

order of remand was passed on the basis of a decision of the division

Bench of this Court in the case of Madhuri Nitin Jadhav and others v.

State of Maharashtra and others2. Exhibit D to the Petition shows

that a Special Leave Petition filed by the Government of Maharashtra

against the said decision in the case of Madhuri Nitin Jadhav and

others was dismissed by the Apex Court. Now coming to the Paragraph 2 2014(4) Bom.C.R. 753

sng 7 wp-7215.16

14 of the impugned judgment, the Caste Scrutiny Committee has

observed that the Review Petition was filed by way of an afterthought

by the present Petitioner. The Caste Scrutiny Committee has criticized

the action of the Petitioner of filing a Review Petition belatedly after

four years. The Caste Scrutiny Committee has further observed that the

Applicants who are non-tribals are making misuse of technical aspects

and legal rights and they are encroaching upon the persons who are

truly tribals. In our view, the observations made in Paragraph 14 are

totally uncalled for. Though the Review Petition filed by the Petitioner

was allowed by a speaking order and though the order passed on the

Review Petition has attained finality, the Caste Scrutiny Committee has

gone to the extent of observing that the Review Petition was filed by the

Petitioner by way of an afterthought. We must record our strong

disapproval to the said observations recorded in Paragraph 14 of the

impugned order.

11. Accordingly, the Petition must succeed and we pass the

following order:

ORDER :

(a) The impugned order dated 30th January 2016 is

hereby quashed and set aside and the matter of

verification of the caste certificate dated 24 th July

2007 is remanded to the second Respondent;

  sng                                                    8                         wp-7215.16




                  (b)      After   remand,   the   Caste   Scrutiny   Committee   will 

make an inquiry for ascertaining whether the

Petitioner has proved his relationship with

Harishchandra Dattatray Thakar and three others.

For that purpose, if necessary, the Caste Scrutiny

Committee can always order vigilance cell inquiry;

(c) If the Caste Scrutiny Committee comes to a

conclusion that the Petitioner has established his

relationship with Harishchandra as alleged by him,

the caste validity certificate granted to the said

Harishchandra will have a great persuasive value

and, therefore, the same will have to be taken into

consideration along with the caste validity

certificates granted to three others on the basis of the

caste validity certificate granted to the said

Harishchandra;

(d) We direct the Petitioner to appear before the second

Respondent on 28th August 2017 at 11.00 a.m. for

fixing the schedule of hearing. The Caste Scrutiny

Committee shall endeavour to pass a final order as

sng 9 wp-7215.16

expeditiously as possible and in any event, before the

end of the year 2017;

                  (e)      All contentions on merits are kept open;



                  (f)      The Petition is disposed of on above terms.




  (VIBHA KANKANWADI, J)                                     ( A.S. OKA, J )