Yugandhara Vasant Gangavane vs State Of Maharashtra Through Its ...
2017 Latest Caselaw 8618 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         CIVIL APPELLATE JURISDICTION

                    WRIT PETITION NO. 5171 OF 2015


Yugandhara Vasant Gangavane
Aged : years, Residing at
At Post. Pinguli-Gudhipur,
Tal. Kudal, Dist. Sindhudurg                               ....Petitioner
      V/s.
1. State of Maharashtra
Through its Secretary,
Tribal Development Departmet
Mantralaya, Mumbai-400 032

2. Scheduled Tribe Certificate
Scrutiny Committee,
Konkan Division, Thane
Having Office at Vartak Nagar
Ward Office, Opp. Kores Co.,
Vedant Complex, Vartak
Nagar, Thane (W).

3. Directorate of Technical
Education, Maharashtra State,
3, Mahapalika Marg, Mumbai-1.

4. Dr. Babasaheb Ambedkar
Technology University, through
Its Registrar, Lonere, Dist. Raigad                 ....Respondents

                                      *****

Mr. R.K. Mendadkar, a/w. Mr. Tanaji Jadhav, Advocate for the
petitioner.

Mr. C.P. Yadav, Advocate for respondent no.1 to 3.



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Mr. A.B. Desai i/by. Mr. A.K. Jalisatgi, Advocate for respondent
no.4.


              CORAM :-                  B.R.GAVAI &

                                        SANDEEP K. SHINDE, JJ.

              DATE :-                   13TH NOVEMBER,          2017.




JUDGMENT (PER :- SANDEEP K. SHINDE, J) :

1. Rule. Rule, returnable forthwith.

2. Heard Learned Counsel for the petitioner and

Learned AGP for the State.

3. The petition takes exception to the order dated 23rd

March, 2015 passed by respondent no.2, Committee

invalidating the Caste Certificate of the petitioner as belonging

to Thakar Scheduled Tribe for second time

4. The petitioner was granted Caste Certificate by the

Competent Authority of jurisdiction as belonging to Thakar

Scheduled Tribe on 7th October, 2006. The Committee was

moved for verification through her College. Pending validation

proceedings, she was admitted to first year of

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Telecommunication Degree Course. On 11th February, 2013,

respondent no.2 Committee invalidated the Caste Certificate of

the petitioner.

5. The petitioner filed Writ Petition No. 2118 of 2003

and vide order dated 2nd April, 2014 the Division Bench of this

Court quashed and set aside the order dated 11th February,

2013 and directed the Committee to decide the claim of the

petitioner afresh in accordance with law.

6. That as such, in the second round of litigation,

respondent no.2 invalidated her claim vide order dated 11 th

May, 2015 and hence this petition.

7. It appears that the documentary evidence pressed

into service in support of her claim has been discarded by the

Committee in toto and further held that the petitioner had also

failed in the affinity test.

8. Mr. Mendadkar, the learned Counsel appearing for

the petitioner has brought to our notice, the findings of the

Committee in para-9 of the impugned order. While dealing

with the two documents, both relating to school records; one

that of Laxman Dattatray Gangawane, her cousin Uncle and

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another of Suresh Narayan Gangawane, another cousin Uncle.

Mr. Mendadkar, submits that, the school documents of

Laxman Dattatray Gangawane, shows that Laxman was

admitted in the School on 1st April, 1950 and his caste as

recorded was "Hindu Thakar" Mr. Mendadkar, therefore

would submit that this document is prior to 6 th September,

1950 a date on which the Constitution (Scheduled Tribe)

Order, 1950 was issued and as such would have more

probative value.

9. We have perused the school record/extract of

Laxman Dattatray Gangawane. He is cousin Uncle, of the

petitioner as could be seen from the family tree. This

document was verified by the Vigilance Committee, who found

it correct as per school record. This document shows entries

made prior to 6th September, 1950 a date on which the Thakar

community was enlisted as a "Scheduled Tribe" vide entry

no.44 insofar as the State of Maharashtra is concerned.

Having regard to this fact, in our view, the Committee ought to

have dealt with this document as it furnishes high degree of

probative value to the declaration of status of caste of the

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petitioner. It appears that the Committee discarded this said

document, only on the ground that it does not describe "Hindu

Thakar" caste as "Scheduled Tribe". The reason for discarding

this document is, wholly untenable for the simple reason that,

when the petitioner's cousin Uncle, Laxman was admitted in

the School, Thakar was not declared as a Scheduled Tribe and

therefore it was inconceivable to hold that merely because

caste of the Uncle has not been described or recorded as

"Scheduled Tribe", the document would loose its significance

and its evidentary value. That since entry in the school record

of Laxman qua his caste was made prior to 6th September,

1950 it would carry high degree of probative value. It is not in

dispute that, Laxman is the cousin uncle of the petitioner. We

thus hold the Committee, respondent no.2 fell in error, in

discarding this document.

10. Mr. Mendadkar, Learned Counsel has also relied on

the extract of school record of Suresh Narayan Gangawane,

who is another cousin Uncle of the petitioner. His school

record was verified by the Vigilance Committee, who found

that entries in the extract and the school record tallies. The

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Committee has discarded this document on the ground that the

caste, "Thakar" has been struck off and word "Magas" has been

written.

11. We have perused the school record/extract, of

Suresh Narayan Gangawane. It shows that, he was admitted

in the school on 26th September, 1959. It appears, word

"Thakar" was struck off by and word "Maagas" has been added.

Neither, the petitioner nor the respondents explained, why

such corrections were made.

12. We have considered this document to ascertain as to

whether it could be looked into while deciding the claim of the

petitioner. The genealogy of the petitioner has not been

disputed by the respondent, Committee. It appears from the

genealogy that Laxman and Suresh are the cousin brothers

whose common ancestor is Vithal Laxman Gangawane. Once

we found that caste of Laxman has been recorded as Hindu-

Thakar on 1st April, 1950 i.e. before the Constitution

(Scheduled Tribes) Order, 1950 there is no gain-saying to

discard the school record of Suresh Narayan Gangawane only

on the ground that the word "Thakar" has been struck off and

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word "Magas" has been written.

13. In the case of Anand V/s. Committee for

Scrutiny and Verification of Tribe Claims and Others,

reported in 2011 (6) Maharashtra Law Journal 919 ,

wherein it was held that the affinity test may be used to

corroborate the documentary evidence and should not be the

sole criteria to reject the claim. It was held that, while dealing

with the caste claim in respect of the documentary evidence

greater reliance may be placed on pre-independence

documents because it carries a higher degree of probative

value, to the declaration of status of caste as compared to post

independence documents.

14. In the case in hand, the Committee has erroneously

refused to consider the school record of cousin Uncle, Laxman

Dattatray Gangawane, which indeed has a more probative

value. This piece of evidence was discarded because caste of

Laxman i.e. Scheduled Tribe was not stated in the said extract.

The reason was erroneous, for the simple reason that, as on the

date of admission of Laxman in the School, "Thakar" was not

notified as "Tribe".

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.              Be that as it may, that since the oldest document has

not been considered, we are of the view that the Committee

has committed an error in appreciating the documentary

evidence on record and further committed an error by

declining the claim of caste validation.

15. In that view of the matter, we are of the considered

view that the petitioner has proved her claim that she belongs

to Caste "Thakar" which is a Scheduled Tribe. That as such, we

set aside the order of the Scrutiny Committee dated 23 rd

March, 2015 and validate the Certificate of the petitioner

which shows her caste as "Thakar" which is registered as

"Scheduled Tribe" in the Constitution (Scheduled Tribes)

Order, 1950. Hence, the following order :-

I) The petition is allowed. The impugned order

dated 23rd March 2015 is quashed and set

aside.

II) It is held and declared that the Petitioner belongs to "Thakar" Scheduled Tribe.

III) The Respondent No.2 - Scheduled Tribe Certificate Scrutiny Committee is directed to issue Caste Validity Certificate to the Petitioner

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within a period of two weeks from today.

IV) Needless to state that all consequences shall

follow.

16. Rule is made absolute in the aforesaid terms.

(SANDEEP K. SHINDE, J)                             (B.R. GAVAI, J)