Shantanu Prabhakar Mungalkar And ... vs State Of Maharashtra, Thr. Tribal ...
2021 Latest Caselaw 17642 Bom

WP 5380-21                                     1                    Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.

                  WRIT PETITION NO. 5380/2021

1.   Shantanu Prabhakar Mungalkar,
     Aged 19 years, Occu. Student, R/o Saraf Line,
     Rajpura, Karanja Lad, District - Washim.

2.   Darshan S/o Prakash Mungalkar,
     Aged 19 years, Occu. Student, R/o Saraf Line,
     Rajpura, Karanja Lad, District - Washim.                  PETITIONERS

                                .....VERSUS.....


1.   State of Maharashtra, through
     Tribal Development Department,
     Mantralaya Mumbai-32.

2.   Scheduled Tribe Caste Scrutiny Committee,
     Irwin Chowk, Amravati, through its
     Research Officer and Member Secretary.

3.   State Common Entrance Test Cell
     through its Commissioner and Competent
     Authority, 8th Floor, New Excelsior Building,
     A.K. Marg, Fort, Mumbai - 01.                            RESPONDENT S


              Shri Tushar U. Tathod, counsel the for petitioners.
 Ms Sangita S. Jachak, Assistant Government Pleader for the respondent nos.1
                                    and 2.
         Shri Nahush S. Khubalkar, counsel for the respondent no.3.



CORAM : A. S.        CHANDURKAR AND G.A. SANAP, JJ.

DATE    : 20TH DECEMBER, 2021.
ORAL JUDGMENT             (PER : A.S. CHANDURKAR, J.)

             RULE.     Rule made returnable forthwith.        Heard learned

counsel for the parties in view of the urgency as made out. WP 5380-21 2 Judgment

2. The petitioners claim to belong to 'Raj' tribe which is

recognized as a scheduled tribe as per Entry 18 of the Constitution

(Scheduled Tribes) Order, 1950. Both the petitioners intend to pursue

further studies. By a common order dated 07.12.2021 passed by the

Scrutiny Committee, the caste claim of the petitioners for issuance of a

validity certificate has been rejected. Since this has affected their further

academic pursuit, we have taken up the writ petition for consideration.

3. Shri Tushar Tathod, learned counsel for the petitioners

invited attention to the family tree of the petitioners' family to indicate

that the common ancestor Rambhau had five issues. One son Balwantrao

is the grandfather of the petitioner no.1 while Keshavrao, the other son is

the grandfather of the petitioner no.2. By referring to various documents

of pre-independence period it is submitted that the consistent entries

therein clearly indicated that their ancestors belong to 'Raj' which was

subsequently identified as scheduled tribe. More particularly, school

leaving certificates of the grandfathers of petitioner nos.1 and 2 indicate

their entry in the school on 05.04.1947 with entry of the caste as 'Raj'.

The learned counsel also invited attention to the documents of the year

1911-12 as well as a sale-deed dated 13.03.1945 to indicate that such

consistent entries therein ought to have been accepted by the Scrutiny

Committee for grant of validity especially when they all pertain to the

period prior to independence. He however submits that in the school WP 5380-21 3 Judgment

leaving certificate of the father of the petitioner no.1, entry of the caste is

shown as 'Raj Gond' while insofar as the petitioner no.2 is concerned, his

father's entry as made was 'Hindu Raj'. It is on this premise that the

Scrutiny Committee proceeded to invalidate the tribe claim of the

petitioners. He further submits that in absence of any validity certificate,

the petitioners would not be able to secure admission for higher studies.

Such validity certificate if issued would be required to be submitted by

22.12.2021. He therefore prays that the order passed by the Scrutiny

Committee be set aside and after examining the claim of the petitioners, a

direction to issue validity certificate to them be passed.

4. Considering the urgency in the matter, notice was issued on

18.12.2021 and the learned Assistant Government Pleader was requested

to obtain the records of the Scrutiny Committee. The records of the

proceedings pertaining to the validity are thus tendered for perusal. The

learned Assistant Government Pleader submits that the Scrutiny

Committee was justified in refusing to grant any validity certificate for the

reason that the school entries of the father of the petitioner nos.1 and 2

indicated different caste.

5. Shri Nahush Khubalkar, learned counsel for the respondent

no.3 has referred to the Information Brochure for the Centralized WP 5380-21 4 Judgment

Admission Process for the Academic Year 2021-22 and has submitted that

for favourable consideration of an application for admission, a candidate

claiming benefit of reservation has to submit the validity certificate.

6. We have heard the learned counsel for the parties and we

have perused the records maintained by the Scrutiny Committee.

Undisputedly, the documents at Serial Numbers 6, 7, 9, 10, 11, 13 and 24

as referred in the impugned order pertain to pre-independence era and

the entry 'Raj' is consistently found in all the documents. The oldest

document is of the year 1911-12 while the other documents are of the

years 1936, 1940, 1942 and 1945. In our view these documents ought to

have been given due importance while considering the tribe claim of the

petitioners especially when the same are found to be of the period prior to

recognition of 'Raj' as a Scheduled Tribe. However it is seen that by

referring to a document of 1977 and 1978 the Scrutiny Committee has

chosen to disregard the probative value of undisputed old documents.

Except the aforesaid two entries of 1977/78 there is no contrary material

on record which fact was also fairly admitted by the learned Assistant

Government Pleader.

The other ground that has weighed with the Scrutiny

Committee is absence of necessary knowledge with regard to affinity test.

This aspect does not appeal us for the reason it is well settled that pre-

WP 5380-21 5 Judgment

independence documents would carry more probative value than the

outcome of the affinity test. Reference in this regard can be made to the

decisions in Anand Versus Committee for Scrutiny and Verification of

Tribe Claims & Others [2011(6) Mh.L.J. 919] and Sachin Subhash

Thakur Versus State of Maharashtra & Others [2019(1) Mh.L.J. 476]. In

the light of aforesaid, we are satisfied that the Scrutiny Committee was

not justified in invalidating the claim of the petitioners of belonging to

'Raj' scheduled tribe.

7. In that view of the matter, the common order passed by the

Scrutiny Committee on 07.12.2021 invalidating the tribe claim of the

petitioners is quashed and set aside. It is declared that the petitioners

belong to 'Raj' Scheduled Tribe which entry is at Serial Number 18 of the

Constitution (Scheduled Tribes) Order, 1950. Consequently, the

respondent no.2 would have to issue a validity certificate to both the

petitioners by 21.12.2021. The learned Assistant Government to

communicate this order to the respondent no.2. In the light of aforesaid,

the respondent no.3 would be free to accept the admission form of the

petitioners by treating them as possessing appropriate validity certificates

of belonging to 'Raj' Scheduled Tribe. The petitioners are permitted to

submit the original validity certificate while participating in the Spot

Round Admission.

WP 5380-21 6 Judgment

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

Authenticated copy of the judgment be supplied to the

learned counsel for the parties as per Rules.

             (G.A. SANAP, J.)              (A.S. CHANDURKAR, J.)


APTE




                                                       Signed By: Digitally signed
                                                       byROHIT DATTATRAYA
                                                       APTE
                                                       Signing Date:20.12.2021 18:38