Yogeshwari Vinod Salunkhe vs The State Of Maharashtra And ...
2021 Latest Caselaw 2391 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
                        WRIT PETITION NO. 8353 OF 2020
 Kum. Yogeshwari D/o Vinod Salunkhe
 Age - 18 years, Occu.: Education,
 Permanent R/o. Village Shirud,
 Tal. & Dist. Dhule at present residing
 at Rakshak Nagar Phse 2, Buld. No.7,
 Flat No.S-3, Opp. Durga Mata Mandir,
 Kharadi, Pune, Tq. & Dist. Pune.                     ... Petitioner.
                  Versus
 1. The State of Maharashtra
    Through its Secretary
    Tribal Development Department,
    Mantralaya, Mumbai - 32
 2. The Scheduled Tribe Certificate Scrutiny
    Committee, Nandurbar Division,
    Nandurbar,
    Through its Member Secretary.
 3. The Sub Divisional Officer,
    Dhule, Dist. Dhule.
 4. The Senior Direcor,
    National Eligibility Cum Entrance
    Test (UG 2020), Postal Address:
    C-20, 1A/8 Sector 62, Gautam Budh
    Nagar, ITK, Ostreach Centre
    NOIDA 20130.
 5. The Director
    Medical Education and Reaserch,
    Govt. Dental College and Hospital
    Building, St. Goerge's Hospital
    Compound, Near V.T. Mumbai.
 6. The Competent Authority &
    Commissioner, State Common
    Entrance Test Cell, Excelsior
    Theater Building, AK Nayak Marg,
    Azad Maidan, Fort, Mumbai
    Maharashtra 400 001                               ... Respondents.

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                                   ....
 Mr. A.S. Golegaonkar, Advocate h/f Mr. M.A. Golegaonkar, Advocate
 for the Petitioner.
 M. P.S. Patil, Addl.Government Pleader for Respondent Nos.1, 2 and 5.
 Mr. A.B. Ddhongade, Advocate for Respondent No.4.
 Mr. S.G. Karlekar, Advocate for Respondent No.6.
                                   ....
                               CORAM : S.V. GANGAPURWALA AND
                                       SHRIKANT D. KULKARNI, JJ.

DATE : 05.02.2021

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.

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

3(i) 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

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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 1913 and 1945.

4. We have heard Mr. A.S. Golegaonkar, Advocate holding for

Mr. M.A. Golegaonkar, Advocate for the petitioner, Mr. P.S. Patil,

Addl. G.P. for the respondent Nos.1,2 and 5 / State. Mr. A.B.

Dhongade, Advocate for Respondent No.4 and Mr. S.G. Karlekar,

Advocate for Respondent No.6.

5. Mr. Golegaonkar, the learned counsel for the petitioner

vehemently submitted that the petitioner has produced old record of

the years 1913 and 1945 pertaining to her great-grandfather and

cousin grandfather in order 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 discarded the tribe claim of the petitioner simply on the ground

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that she failed to pass the affinity test and not migrated from the

tribal area. No contra entries are found during the course of vigilance

enquiry. Mr. Golegaonkar submitted that 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. Mr. P. S. Patil, learned Addl. G.P. for respondent Nos. 1 to 3

and 5 / 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 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.

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7. Mr. A.B. Dhongade, learned counsel for respondent No.4 and

Mr. S.G. Karlekar, learned counsel for respondent No.6 supported the

stand taken by the learned Addl. G.P.

8. We have considered the arguments advanced by the learned

counsel for the petitioner, learned Addl. G.P. and the learned counsel

appearing for the respective respondents.

9. 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.

10. 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 1913 and 1945 pertaining to her great-grandfather and cousin

grandfather, wherein caste "Thakur" has been recorded.

11. The following documentary evidence was produced by the

petitioner before the committee.

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  v-       nLr,sotkpk izdkj    nLr,sot/kkjdkps uko         vtZnkj         Tkkrhph      Ukkasn.kh
  Ø-                                                    ;kaP;k'kh ukrs      ukasn      fnukad
   1-         'kkys; iqjkok       ;ksxs'ojh fouksn         vtZnkj         Bkdwj     20-06-2008
                                       lkGqa[ks
   2-         'kkys; iqjkok    fouksn vjfoan lkGqa[ks      oMhy           Bkdwj     06-08-1979
   3-         'kkys; iqjkok    fouksn vjfoan lkGqa[ks      oMhy           Bkdwj     14-07-1983
   4-         'kkys; iqjkok    vjfoan O;adV lkGqa[ks      vktksck         Bkdwj     20-06-1961
   5-         'kkys; iqjkok    vjfoan O;adV lkGqa[ks      vktksck         Bkdwj     12-04-1951
   6-          tUe iqjkok      nsfonkl O;adV #ipan          pqyr          Bkdwj      tUe rkjh[k
                                                           vktksck                  09-05-1945
   7-          tUe iqjkok        O;adV cki #iyk            iatksck        Bkdwj      tUe rkjh[k
                                                                                    25-12-1913
   8-         'kkys; iqjkok     O;adV #ipan Bkdwj          iatksck        Bkdwj     07-02-1919
   9-         'kkys; iqjkok     fnid olar Bkdwj         pqyr dkdk        fganw Bkdwj 01-08-1992
  10-         'kkys; iqjkok    olarjko O;adV Bkdwj          pqyr          Bkdwj      tUe rkjh[k
                                                           vktksck                  13-10-1942
                                                                                     izos'k fnukad
                                                                                          fujad

12. Having regard to the above referred documentary evidence,

it is clear that the petitioner has produced the copy of birth extract

pertaining to her great-grandfather namely Vyankat Bap Rupla dated

25.12.1913, wherein caste has been recorded as "Thakur". She has

also placed on record the copy of birth extract of Devidas Vyankat

Rupchand who happens to be her cousin grandfather dated

09.05.1945, wherein caste has been recorded as "Thakur".

13. The above referred two documents are of pre-independence

era which have more probative value. The documentary evidence

referred above consistently speak that in the family of the petitioner,

wherein their caste is recorded as "Thakur" right from the year 1913.

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The Report of the vigilance officer nowhere indicates that there is

interpolation in the said entries of the school record and copies of

birth extracts, which are of pre-independence era. In absence of

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

entries appear to be genuine.

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

the petitioner simply because she failed to pass the affinity test and

not migrated from the tribal area. 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.

15. 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 and concessions so also

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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.

16. 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.

17. On careful scrutiny of the documentary evidence produced

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

the years 1913 and 1945 make out a clear picture that the caste of the

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family of the petitioner is recorded as "Thakur". No contra entries are

found during the vigilance enquiry.

18. In view of the above, the findings recorded by the committee

are 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 28.11.2020 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 )                        ( S.V. GANGAPURWALA )
         JUDGE                                            JUDGE
 S.P. Rane


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