Suvarna Ganesh Thakur vs The State Of Maharashtra Thr Its ...
2021 Latest Caselaw 2294 Bom

                                                                     WP2226-21ThakurST.odt
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD
                            WRIT PETITION NO. 2226 OF 2021

4.    Suvarna d/o Ganesh Thakur                                           ...     Petitioner
      Age : 19 years, Occu.: Student,
      R/o. Chandrama Nagar
      Piyush Colony, Bhusawal
      Tq. Bhusawal, Dist. Jalgaon

      VERSUS

1.    The State of Maharashtra                                            ...     Respondents
      Department of Tribal Development,
      Mantralaya, Mumbai - 32
      Through its Secretary

2.    The Scheduled Tribe Certificate
      Scrutiny Committee,
      Nandurbar Division Nandurbar
      Through its Member Secretary.

Mr Sushant C. Yeramwar, Advocate for the petitioner
Ms. P. V. Diggikar, A.G.P. for the Respondents-State.

                        CORAM                       : S. V. GANGAPURWALA &
                                                      SHRIKANT D. KULKARNI, JJ.

                         DATE                       : 4th February, 2021

JUDGMENT (Per Shrikant D. Kulkarni, J.):

1. Rule. Rule made returnable forthwith. With the consent of learned

counsel for both the sides, heard finally at admission stage.

2. Feeling aggrieved by the impugned order passed by respondent

No.2 / Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division,

Nandurbar (hereinafter referred to as "the Committee") thereby

invalidating caste claim of the petitioner as belonging to "Thakur

Scheduled Tribe", the petitioner has approached this Court by invoking writ

jurisdiction under Article 226 of the Constitution of India.

WP2226-21ThakurST.odt

3. The factual matrix of the case is as under:

The petitioner is exploring possibility of admission to professional

course. Her proposal for verification of tribe certificate was referred to the

Committee by the college. The Committee has referred the case to the

vigilance officer for enquiry. The vigilance officer has submitted his report

to the committee. The committee has issued show cause notice to the

petitioner, and in response to the show cause notice, the petitioner has

filed her say. It is contended by the petitioner that the committee has

invalidated her tribe claim as belonging to Thakur Scheduled Tribe without

considering the old documentary evidence submitted by her of the years

1943 and 1945.

4. We have heard Mr.S.C.Yeramwar, learned counsel for the petitioner

and Ms. P. V. Diggikar, learned A.G.P. for the respondents/State.

5. Mr. Yeramwar, the learned counsel for the petitioner vehemently

submitted that the petitioner has produced old record of the years 1943

and 1945 pertaining to her cousin grandfathers to show that she belongs

to "Thakur" Scheduled Tribe. The genealogy is not disputed by the

Committee. The committee has discarded the old record and that too of

the pre-independence era without assigning any reason. The Committee

has simply relied upon one entry in the school record, wherein her

father's caste is recorded as 'Hindu Thakur Magas'. Mr. Yeramwar

submitted that 'Hindu Thakur Magas' cannot be said to be a contra entry.

There is no vigilance report of manipulation in the old entries. The

WP2226-21ThakurST.odt learned counsel submitted that the committee doubted the caste claim of

the petitioner by simply relying on the single entry, which cannot be

termed as contra entry. The area restriction is removed even then the

committee has considered that aspect and turned down the tribe claim of

the petitioner. The affinity test is not a litmus test. To support his

argument, Mr. Yeramwar has placed reliance on the decision of the Apex

Court in case of Anand Vs. Committee for Scrutiny and Verification of Tribe

claim and ors. reported in (2012)1 SCC 113. He submitted that the

impugned order passed by the committee is bad in law and liable to be

quashed and set aside.

6. Ms P. V. Diggikar, the learned A.G.P. for the respondents/State,

per contra, submitted that the committee has considered the old

documents produced by the petitioner. The committee after examining all

the documentary evidence, vigilance report and report of the Research

officer, arrived at the conclusion that the petitioner has failed to prove her

tribe claim as "Thakur" Scheduled Tribe. The school record of the

petitioner's father shows entry as "Hindu Thakur Magas which is contra

entry. The committee has rightly considered the said entry as contra

entry. The findings recorded by the committee are well reasoned. The

decision rendered by the committee is not defective in the eye of law. It is

not a fit case to interfere with the decision of the committee.

7. We have considered the arguments advanced by the learned

counsel for the petitioner and the learned A.G.P.

WP2226-21ThakurST.odt

8. On perusing the impugned order passed by the committee, it is

found that the committee has invalidated the claim of the petitioner on the

following two issues :

(i) The petitioner has failed to prove her tribe claim on the basis of documentary evidence.

(ii) The petitioner has failed to prove the affinity test.

9. On making scrutiny of the impugned order, vigilance report and

other papers, it is noticed by us that the petitioner has placed on record

the documentary evidence in the form of school record of the years 1943

and 1945 pertaining to her cousin grandfathers, wherein caste "Thakur"

has been recorded.

10. The following documentary evidence was produced by the

petitioner before the committee.

 v-          nLr,sotkpk izdkj         nLr,sot/kkjdkps uko           vtZnkj         Tkkrhph ukasn    Ukkasn.kh
 Ø-                                                               ;kaP;k'kh ukrs                    fnukad
 1-            'kkys; iqjkok           lqo.kkZ x.ks'k Bkdqj         vtZnkj          fganw Bkdwj    03-07-2012
 2-            'kkys; iqjkok           lqo.kkZ x.ks'k Bkdqqj        vtZnkj          fganw Bkdwj    17-06-2008

 3-            'kkys; iqjkok           x.ks'k cGhjke Bkdqj           oMahy          fganw Bkdwj    15-06-1990
                                                                                      ekxkl
 4-            'kkys; iqjkok         cGhjke t;jke lq;Zoa'kh         vktksck         fganw Bkdwj    25-07-1951
 5-            'kkys; iqjkok           fdlu t;jke Bkdqj           pqyr vktksck      fganw Bkdwj    20-06-1945
 6-            'kkys; iqjkok          f'kojke t;jke Bkdqj         pqyr vktksck      fganw Bkdwj    01-04-1943

11. Having regard to the above referred documentary evidence, it is

clear that the petitioner has produced documentary evidence pertaining to

her cousin grandfathers namely Kisan Jayram Thakur and Shivram Jayram

WP2226-21ThakurST.odt Thakur dated 20.06.1945 and 01.04.1943, respectively, wherein caste

has been recorded as "Hindu Thakur/"Thakur". The above referred two

documents are of pre-independence era which have more probative value.

Report of the vigilance officer nowhere indicates that there is

interpolation in the said entries of the school record. In absence of

interpolation, the above said two entries cannot be doubted. The entries

appear to be genuine.

12. The Committee seems to have discarded the tribe claim of the

petitioner simply relying on one entry in school record of petitioner's

father, wherein caste is recorded as "Hindu Thakur Magas". Hindu is a

religion and not a caste. Therefore, the said entry cannot be said to be

contra entry. There is no justifiable reason to discard the documents of

the pre-independence era in absence of any contra evidence. The

committee has completely overlooked that aspect and invalidated the tribe

claim of the petitioner simply relying on a single entry which is also not a

contra entry.

13. The committee has also observed that the family of the petitioner

is not migrated from tribal area. That observation made by the committee

is erroneous. The Parliament has enacted "The Scheduled Castes and

Scheduled Tribes Orders (Amendment) Act, 1976". It is precisely to over

come the difficulties of the tribals. After that amendment, it is not

permissible to rely on the area restrictions placed by the order of 1950.

They are removed in order to enable the persons not residing in the five

districts identified as permanently inhabited by Thakurs to claim benefits

WP2226-21ThakurST.odt and concessions so also relaxation in Government employment and

elections. That view is expressed in the decision rendered by the Division

Bench in case of Mayuri Sunil Thakur Vs. State of Maharashtra and Ors.

(Writ Petition No.8738 of 2019 dated 09.08.2019 at principal seat

Bombay). As such, the observations made by the committee regarding

absence of migration of petitioner's family are certainly erroneous.

14. Now coming to the another finding recorded by the committee

regarding failure to prove the affinity test. The genuineness of a caste

claim needs to be considered not only by way of detail examination of the

documents but also on the affinity test, which would include the

anthropological and ethnological traits etc. of the petitioner. The affinity

test is not a litmus test. We would like to place reliance in case of Anand

(supra), wherein it is observed by the Hon'ble Supreme Court that affinity

test may not be regarded as a litmus test. The affinity test may be used

to corroborate the documentary evidence and should not be the sole

criteria to reject a claim.

15. On careful scrutiny of the documentary evidence produced by the

petitioner right from the pre-independence era i.e. right from the years

1943 and 1945 make out a clear picture that the caste of the family of the

petitioner is recorded as "Thakur". No contra entries are found during the

vigilance enquiry. The committee has given unnecessary weightage to one

single entry which is not a contra entry.

16. In view of the above, the findings recorded by the committee are

WP2226-21ThakurST.odt found erroneous. The committee has not properly considered the

documents of the pre-independence era and arrived at incorrect

conclusion. There are no contra entries to throw away the tribe claim of

the petitioner. The impugned order passed by the committee invalidating

tribe claim of the petitioner needs to be quashed and set aside. She is

entitled to get the tribe validity certificate. With these reasons, we

conclude and proceed to pass the following order.

ORDER

(i) The impugned order passed by respondent No.2 / Scrutiny

Committee, Nandurbar dated 30.01.2021 is hereby quashed and

set aside.

(ii) Respondent No.2 / Scrutiny Committee, Nandurbar shall issue

validity certificate to the petitioner of being a member of "Thakur

Scheduled Tribe" forthwith.

(iii)        Rule is made absolute accordingly.


(iv)         The writ petition is disposed of. No order as to costs.




 (SHRIKANT D. KULKARNI, J.)                                      (S.V.GANGAPURWALA, J.)




JPC