Rushikesh Deepak Chavan And Anr vs State Of Maharashtra Through ...
2021 Latest Caselaw 16843 Bom

                                                              WP 9864-18.odt


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

                    WRIT PETITION NO. 9864 OF 2018

Rushikesh Deepak Chavan & Anr.                           ... Petitioners

        Vs.
State of Maharashtra and Ors.                      ... Respondents
                                -------
Mr. R. K. Mendadkar with C. K. Bhangoji & Mr. T. V. Jadhav,
Advocate for Petitioners.
Mr. P. J. Gavhane, AGP for State--Respondents no. 1 to 4.
Mr. Sameer P. Khedekar, Advocate for Respondent no.7.
                                -------
                 CORAM                : R.D. DHANUKA AND
                                        ABHAY AHUJA, JJ.
                 RESERVED ON           : 3RD DECEMBER, 2021
                 PRONOUNCED ON : 4TH DECEMBER, 2021

ORDER (PER COURT)

1. Rule. Learned AGP waives service on behalf of the

respondents no. 1 to 4. Learned advocates waive service on behalf

of respondent no.7. Respondent nos. 5 and 6 are Educational

Institutes stated to be under the control of respondents no. 3 and 4

and have been duly served. At the request and with consent of the

counsel for the parties, rule made returnable forthwith.

2. By this petition, filed under Article 226 of the Constitution of

India, petitioner is seeking to challenge the legality and validity of

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the common judgment and order dated 29 th August 2018 passed by

the respondent no. 2-Scrutiny Committee to issue certificate of

validity of the petitioners as belonging to Thakur Scheduled Tribe.

3. When this matter was listed on 30th November 2021, Mr.

Mendadkar, learned counsel for petitioners invited our attention to

the admission notice dated 16th November 2021 for MBA/MMS for

the academic year 2021-22 issued by the State Common Entrance

Test Cell submitting that the scheduled date for the candidates

including petitioners to submit the caste/tribe validity certificate

was on or before 8th December 2021 upto 5.00 p.m. Since the said

admission notice was issued by the State Common Entrance Test

Cell, Maharashtra State, Mumbai, leave was sought and granted to

petitioners to implead the State Common Entrance Cell as

respondent no.7. Petitioners have carried out the said amendment

and today learned counsel representing the State Common

Entrance Cell is present before this Court and submits the veracity

of the date of 8th December 2021 upto 5.00 p.m. as being the time

limit by which the Tribe validity certificate is to be submitted by the

candidate.

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4. In view thereof, at the request of the counsel for the

petitioners and with their consent, we are hearing this petition

finally.

5. It is the case of petitioners that they belong to the Thakur

Schedule Tribe. Petitioner no.1 was granted admission to the

respondent no.5-college in the direct second year of engineering

degree course during the academic year 2018-19 under the

reserved category and petitioner no.2 was granted admission to the

first year of MBA degree course in respondent no.6 college under

the said category during the academic year 2017-18.

6. Mr. Mendadkar, learned counsel for petitioners takes us to the

genealogical tree as set out on page no. 58 of the petition and

submits that the petitioners came from the blood line from common

ancestor Ragho Thakur, great- great- grandfather from whom came

great grand father Shri Krishna Thakur and whose son was Shri

Babu alias Baburao, who was born on 1st January 1911 (as seen

from the school records at page 54) who is the great grand father of

the petitioners. From Baburao came Narayan, who is grand father of

petitioners born on 18th June 1932. From Narayan came Shri

Deepak who born on 9th March 1970, who is petitioners' father.

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7. Mr. Mendadkar submits that the school admission records of

Babu Krishna Thakur, Narayan, Deepak which are listed on pages

54 and 55 of the petition being part of the vigilance cell report dated

9th August 2018 clearly indicate that they belong to the Thakur

Schedule Tribe. Learned counsel also refers to the observations on

page 54 of the vigilance cell report with respect to Babu Krishna

Thakur, who is the great grand father of petitioners, Narayan

Babulal Chavan, who is the grand father of the petitioners, Mr.

Jagannath Babulal Chavan as well as Hiralal Babulal Chavan, cousin

grand fathers, Sakhubhai Baburao Chavan and Indubai Baburao

Chavan grand mothers and submits that all these documents are

pre-constitutional documents in favour of the paternal blood

relatives as well as close relatives of the petitioners coming from

common blood line and which have been duly verified clearly

establish petitioners' claim to the Thakur Schedule Tribe, which the

scrutiny committee has completely ignored and not applied its

mind.

8. Learned counsel submits that in view of law as settled of by

the decision of the Hon'ble Supreme Court, in the case of Anand Vs.

Committee for Scrutiny and Verification of Tribe Claims and Ors,

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(2012) 1 SCC 113, it has been stressed that while dealing with the

documentary evidence greater reliance ought to 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 the post-independence documents. He further submits that the

scrutiny committee has even completely erred in failing to consider

that petitioner's maternal uncle and cousin cousin paternal aunt

are admittedly caste validity certificate holders as can be seen from

paragraph 11 of the impugned order.

9. He would submit that while the scrutiny committee has

completely failed to consider the pre-constitutional documents set

out in the vigilance cell report, only on the basis that petitioners

have not been able to prove cultural affinity to the Thakur

Scheduled Tribe rejected the claim of petitioners relying on the

decision dated 1st August 2018 in the case of Chhaya Jasvantsingh

Hajari Vs.The Committee for Scrutiny and Anr. in Writ Petition No.

4198 of 2005 which decision has been held to be per incuriam by a

later decision of this Court in the case of Prakash Shrawan Deore

Vs. Scheduled Tribe Certificate Scrutiny Committee, Nashik in writ

petition no. 2363 of 2013.

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10. Learned counsel for the petitioners would submit that while

considering the issue of affinity test, which as per settled law in the

case of Anand (supra), is only corroborative and cannot be used as

litmus test, the scrutiny committee has completely ignored findings

in the vigilance cell report under the caption of home inquiry at

page 55 of the petition, which sets out the peculiar traits, deity,

rituals, customs, mode of marriage, etc.of the petitioners which

resemble those of the Thakur Scheduled Tribe.

11. On the other hand, Mrs. Gavhane, learned AGP for the State,

while opposing the above submissions, draws attention of this Court

to page 51 of the petition which contains report of the research

officer dated 14th August 2018 holding that the aforementioned

characteristics of petitioners do not match the Thakur Schedule

Tribe.

12. Learned AGP submits that the documents submitted by the

petitioners do not prove the petitioners' claim to Thakur Scheduled

Tribe as the same cannot be relied upon.

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13. She submits that petitioners have failed the cultural affinity

test, which, as is well settled in accordance with the decision in the

case of Anand (supra), cannot be disregarded. She submits that the

burden of proving caste claim is upon the applicant. He not only has

to produce all the requisite documents in support of his claim but

also pass the affinity test. The scope of inquiry of the vigilance

officer is broad based and is not confined only to verification of

documents filed by the applicant but the inquiry supposed to be

conducted by the vigilance officer would include the affinity test of

the applicant to a particular Tribe and the inquiry into kinship and

affinity of the applicant to a particular Scheduled Tribe is not alien

to the scheme of Act and the Rules. She submits that infact, affinity

test is relevant and germane to the determination of social status of

an applicant and relies upon paragraph 20 of the decision of the

Hon'ble Supreme Court in the case of Anand (supra).

14. We have heard the learned counsel for the parties for some

time and also with their able assistance perused the various

documents annexed to the petition.

15. The principles for determination of Tribe claim as elucidated

by both the learned counsel can in no way be faulted with. It is

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however well settled that pre-constitutional/pre-independence

documents have probative value to the declaration of the status of a

caste/tribe claim and that affinity test is not a litmus test and may

be used to corroborate documentary evidence and should not be the

sole criteria to reject a claim.

16. However, we observe that the scrutiny committee failed to

consider the vigilance cell report dated 9th August 2018, while

rejecting petitioners' claim to Thakur Scheduled Tribe. The

observations with respect to the documents listed at paragraph no.

24 of the vigilance cell report dated 9th August 2018 also do not

appear to have been appreciated/dealt with by the scrutiny

committee. The importance of the pre-independence documents in

the case of relatives coming from a common ancestor need not be

over emphasised. The scrutiny committee also does not appear to

have considered the observations in paragraph 29 with respect to

home inquiry.

17. Moreover, it is settled law as also held in the decision of this

Court in the case of Nikhil s/o Anil Thakur Vs. State of Maharashtra

and ors. in Writ Petition No. 11344 of 2019 that the caste validity

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certificate issued in favour of near relatives can also to be

considered for determination of the caste claim of an applicant

which in this case as set out above appears to be completely ignored,

in respect of petitioners' maternal uncle and cousin cousin paternal

aunt.

18. We are, therefore, of the view that the interests of justice

would be served by remanding the matter back for fresh

consideration by the scrutiny committee.

19. We, therefore, set aside the order dated 29th August, 2018 of

the respondent no.2- cast scrutiny committee and remand the

matter back to the scrutiny committee for fresh consideration. All

contentions of the parties are kept open.

20. Though we do not propose to interfere with the case

management/hearing schedule/roster of the respondent-caste

scrutiny committee, keeping in mind that the last date for

submission of Tribe validity certificate for admission to the course

of MBA//MMS for the academic year 2021-22 is 8th December 2021

upto 5.00 p.m., we direct the respondent no.2- caste scrutiny

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committee to decide the claim after considering all the documents

and submissions of the parties as soon as possible, but no later than

by 7th December 2021, 5.00 p.m. The petitioners are directed to

appear before the respondent no.2-Caste Scrutiny Committee at

11.00 a.m. on 6th December, 2021 alongwith copy of the order. This

order shall not be used as a precedent in any other matter and is

passed in view of the peculiar facts and circumstances of this case.

21. Learned AGP agrees to convey this order to the respondent

no.2-Caste Scrutiny Committee for information and compliance.

22. Petition accordingly stands disposed with the aforesaid

directions. Rule is made absolute in aforesaid terms. No costs.

23. Parties to act upon an authenticated copy of this order.

 (ABHAY AHUJA, J.)                                   (R.D. DHANUKA, J.)

         Digitally signed
         by NIKITA
NIKITA   YOGESH
         GADGIL
YOGESH   Date:
GADGIL   2021.12.04
         16:17:37
         +0530




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