Bombay High Court
Yash Sanjay Thakur vs Scheduled Tribe Certificate ... on 11 February, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
988-wp-145-20 (Jt.)
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 145 OF 2020
Yash S/o Sanjay Thakur
Age - 23 years, Occu.: Education,
R/o. Aurangabad
Tq. & Dist. Auranagabad. ... Petitioner.
Versus
1. The Scheduled Tribe Certificate
Scrutiny Committee,
Aurangabad Division, Aurangabad,
Through its Member Secretary.
2. Savitribai Phule University,
Vidyapeeth Road, Pune
through its Registrar
3. The Principal
D.Y. Patil College of Engineering
Sector 29, Nigdi Pradhikaran
Akurdi, Pune - 411 044. ... Respondents.
....
Mr. Mahesh S. Deshmukh, Advocate for the Petitioner.
Mr. P.S. Patil, Addl. Government Pleader for Respondent No.1.
Mr. A.R. Joshi, Advocate for Respondent No.2.
....
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
Date : 11.02.2021
FINAL ORDER:
1. Feeling aggrieved by the impugned order passed by respondent
No.1 / Scheduled Tribe Certificate Scrutiny Committee, Aurangabad
Division, Aurangabad (hereinafter referred to as "the Committee")
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thereby invalidating caste claim of the petitioner and his uncle Vijay
Narhari Shinde as belonging to "Thakur Scheduled Tribe", by
common judgment the petitioner has approached this Court by
invoking writ jurisdiction under Article 226 of the Constitution of
India.
2. The factual matrix of the case is as under:
2(i) The petitioner was admitted in B.E. (Civil) professional
course in the college of respondent No.3 from S.T. category. His
college has referred the tribe claim for validation to the committee.
The petitioner has submitted sufficient evidence in the nature of
school record of pre-independence era pertaining to his great-
grandfather and other blood relatives. He has also relied upon the
validity certificates issued in favour of his real brother and real cousin
and third degree cousin from the paternal side. 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 his say. The committee has
invalidated his tribe claim as belonging to "Thakur" Scheduled Tribe
without considering the old documentary evidence as well as the
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validity certificates issued in his family. In that background, the
petitioner is before us.
3. We have heard Mr. M.S. Deshmukh, Advocate for the
petitioner, Mr. P.S. Patil, Addl. G.P. for the respondent No.1 and
Mr. A.R. Joshi, learned counsel for respondent No.2. None present for
respondent No.3.
4. Mr. Deshmukh, the learned counsel for the petitioner
vehemently submitted that the petitioner has produced old
documentary evidence in the nature of school record pertaining to his
great-grandfather namely Trimbak Mahadu dated 11.04.1924,
wherein the caste "Thakur" is recorded. The school record of the
petitioner's grandfather namely Narhari Trimbak dated 04.07.1956
also records the caste "Thakur". There are no contra entries. 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 cogent reason. The Committee has also not
considered the validity certificates of close blood relatives of the
petitioner viz. real brother, real cousin and third degree cousin from
paternal side.
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5. Mr. Deshmukh, submitted that the area restrictions is
removed even then the committee has considered that aspect and
turned down the tribe claim of the petitioner. He submitted that when
there are validity certificates in the family of the petitioner from
paternal side viz. real brother and real cousin, the committee ought to
have issued validity certificate in view of ratio laid down in case of
Apporva D/o. Vinay Nichale Vs. Divisional Caste Certificate Scrutiny
Committee No.1 and others, reported in 2010 (6) Mh.L.J. 401. He
submitted that the affinity test is not a litmus test by placing reliance
in case of Anand Vs. Committee for Scrutiny and Verification of Tribe
claim and ors. reported in (2012)1 SCC 113. Mr. Deshmukh
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 No. 1 /
committee, 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 his tribe claim as "Thakur" Scheduled Tribe. Mr.
Patil submitted that the validity holders Deep Sanjay Thakur and
Vyom Vijay Thaku had not disclosed the real genealogy and there by
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obtained validity certificates. The validity certificates have been issued
to Deep Thakur and Vyom Thakur by placing reliance on the validity
of Shri Ananda Vitthal Shinde, therefore, the committee has not
extended the benefit of caste claim to the petitioner on the basis of
validity certificate relied by the petitioner. Mr. Patil submitted that
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. Mr. A.R. Joshi, learned counsel for respondent No.2
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 respondent No2.
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 three issues :
(i) The petitioner has failed to prove his tribe claim on the
basis of documentary evidence.
(ii) The petitioner is not entitled to get benefit of the tribe
validity certificates issued in his family.
(iii) The petitioner has failed to prove the affinity test.
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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
year 1924 pertaining to his great-grandfather, wherein the caste
"Thakur" has been recorded.
11. The following documentary evidence was produced by the
petitioner before the committee.
v- nLr,sotkpk izdkj nLr,sot/kkjdkps uko vtZnkj dz-1 Tkkrhph Ukkasn.kh
Ø- ;kaP;k'kh ukrs ukasn fnukad
1- tUe izek.ki= ;'k lat; Bkdwj vtZnkj dz-1 Bkdwj 28-06-1996
2- 'kiFki= ¼uequk Q½ ;'k lat; Bkdwj vtZnkj dz-1 & & 20-08-2014
3- fo|kFkhZ izos'k o fuxZe ;'k lat; Bkdwj vtZnkj dz-1 Bkdwj 01-07-2005
mrkjk
4- fo|kFkhZ izos'k o fuxZe ;'k lat; Bkdwj vtZnkj dz-1 Bkdwj 15-06-2006
mrkjk
5- 'kkGk lksMY;kpk nk[kyk ;'k lat; Bkdwj vtZnkj dz-1 Bkdwj 24-09-2007
6- CksukQkbZM izek.ki= ;'k lat; Bkdwj vtZnkj dz-1 Bkdwj 10-09-2013
7- tUe izek.ki= ;'k lat; Bkdwj vtZnkj dz-1 & & 16-07-2006
8- fo|kFkhZ izos'k o fuxZe lat; ujgjh Bkdwj ofMy Bkdwj 21-07-1980
mrkjk
9- 'kkGk lksMY;kpk nk[kyk lat; ujgjh Bkdwj ofMy Bkdwj 31-12-1980
10- 'kkGk lksMY;kpk nk[kyk lat; ujgjh Bkdwj ofMy Bkdwj 02-07-1982
11 tUe izek.ki= lat; ujgjh Bkdwj ofMy Bkdwj 20-12-1988
12 lsokiVkP;k izFke i`"Bkph lat; ujgjh Bkdwj ofMy Bkdwj & &
izr
13 fo|kFkhZ izos'k o fuxZe ujgjh «khacd Bkdwj vktksck Bkdwj 04-07-1956
mrkjk
14 fo|kFkhZ izos'k o fuxZe «kacd egknq iatksck Bkdwj 11-04-1924
mrkjk
15 QsjQkj i«kd 1½ lat; ujgjh Bkdwj 1½ ofMy & & 06-04-2004
2½ fot; ujgjh Bkdwj 2½ vtZnkj dz-2
16 gDd ukasn.kh jftLVj «khacdk ek/ko Bkdwj iatksck & & 1956
17 fo|kFkhZ izos'k o fuxZe fot; ujgjh Bkdwj vtZnkj dz-2 Bkdwj 05-07-1977
6 of 12
988-wp-145-20 (Jt.)
mrkjk
18 Ukko cnykps izek.ki«k fot; ujgjh f'kans @ vtZnkj dz-2 & & 17-05-2012
fot; ujgjh Bkdwj
19 Tkkr oS/krk izek.ki«k vkuank foðy f'kans pqyr dkdk Bkdwj 26-08-2011
20 'kiFki«k ¼oS/krk½ oS'kkyh flrkjke Bkdwj omhykaPkh & & 28-07-2014
ekescgh.k
21 Tkkr izek.ki«k oS'kkyh flrkjke Bkdwj omhykaPkh Bkdwj 26-09-2005
ekescgh.k
22 Tkkr oS/krk izek.ki«k oS'kkyh flrkjke Bkdwj omhykaP;k Bkdwj 08-07-2010
ekescgh.k
23 'kiFki«k ¼oS/krk½ vpZuk lat; Bkdwj vkbZ & & 20-08-2014
24 Tkkr izek.ki«k vpZuk tuk/kZu culksMs vkbZ Bkdwj 10-08-2005
25 Tkkr oS/krk izek.ki«k vpZuk tuk/kZu culksMs vkbZ Bkdwj 31-03-2010
26 Tkkr izek.ki«k vk'kk tuk/kZu culksMs dkdw Bkdwj 07-08-1991
27 Tkkr oS/krk izek.ki«k vk'kk tuk/kZu culksMs dkdw Bkdwj 28-11-2005
28 Ukko cnykps izek.ki«k vk'kk tuk/kZu culksMs dkdw & & 17-05-2012
@ izsj.kk fot; Bkdwj
29 Tkkr oS/krk izek.ki«k vferdqekj tuk/kZu ekek Bkdwj 01-04-2010
culksMs
30 Tkkr oS/krk izek.ki«k eatq"kk tuk/kZu culksMs eko'kh Bkdwj 27-01-2004
31 'kiFki«k ¼oS/krk½ lat; ujgjh Bkdwj oMhy & & 13-09-2019
32 Tkkr izek.ki«k fni lat; Bkdwj HkkÅ Bkdwj 16-12-2015
33 Tkkr oS/krk izek.ki«k fni lat; Bkdwj HkkÅ Bkdwj 15-07-2019
34 Tkkr oS/krk izek.ki«k O;kse fot; Bkdwj pqyr HkkÅ Bkdwj 15-07-2019
35 tkr izek.ki«k O;kse fot; Bkdwj pqyr HkkÅ Bkdwj 28-01-2016
36 tekr nkok voS/k lat; ujgjh Bkdwj oMhy & & 29-12-1997
BjfoY;kpk vkns'
37 Ek-mPp U;k;ky;] jfoanz izYgknjko [kjs & & & & & &
eqacbZ ;kaps fu.kZ;vkns'l
¼fjV ;kfpdk [email protected]
2015½
38 tkr izek.ki«k fot; ujgjh f'kans vtZnkj dz-2 Bkdwj 18-03-2010
39 'kiFki«k ¼Ukko fot; ujgjh f'kans @ vtZnkj dz-2 & & 24-12-2010
cnykckcr½ fot; ujgjh Bkdwj
40 'kiFki«k ¼oa'kkoG½ fot; ujgjh f'kans vtZnkj dz-2 & & 23-02-2011
41 fo|kFkhZ izos'k o fuxZe Ukjgjh «;acd vktksck Bkdwj 17-06-1952
mrkjk
42 'kkGk lksMY;kpk nk[kyk Ukjgjh «;acd f'kans vktksck Bkdwj 17-06-1952
43 'kkGk lksMY;kpk nk[kyk ujgjh f«kacd f'kans vktksck Bkdwj 04-07-1956
44 tkrhps izek.ki«k ujgjh «khacd Bkdwj vktksck Bkdwj 13-07-1978
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45 lsokiVkP;k izFke i`"Bkph ujgjh «khacd Bkdwj vktksck Bkdwj & &
izr
46 [email protected] mrkjk 1½ Ukjgjh «;acd f'kans 1½ vktksck & & 1995-96
2½ fnudj «;acd f'kans 2½ pq- vktksck
47 tUe e`R;qps dksrokyh fnudjjko «;acd pqyr vktksck Bkdwj 26-01-1951
jftLVj ekgknq
48 'kiFki«k ¼oS/krk½ vk'kk tuk/kZu culksMs dkdw & & 24-12-2010
49 Tkkr izek.ki«k vferdqekj tuk/kZu ekek Bkdwj 06-10-2004
culksMs
50 yXui=hdk fot; ujgjh f'kans vtZnkj dz-2 & & 18-04-2000
51 'kiFki«k ¼oS/krk½ mTToydqekj ,dukFk dqGca/kw & & 31-03-32006
f'kans
52 Tkkr oS/krk izek.ki«k mTToydqekj ,dukFk dqGca/kw Bkdwj 13-09-2004
f'kans
53 'kiFki«k ¼vkMUkkokckcr½ fot; ujgjh f'kans vtZnkj dz-2 & & 05-02-2011
54 'kiFki«k ¼nkok iMrkG.kh fot; ujgjh f'kans vtZnkj dz-2 & & 01-03-2011
ckcr½
55 'kiFki= ¼uequk Q½ fot; ujgjh f'kans vtZnkj dz-2 & & 01-03-2011
56 tUe izek.ki= fot; ujgjh f'kans vtZnkj dz-2 & & 20-06-1971
57 fo|kFkhZ izos'k o fuxZe fot; ujgjh Bkdwj vtZnkj dz-2 Bkdwj 21-07-1980
mrkjk
58 'kkGk lksMY;kpk nk[kyk fot; ujgjh Bkdwj vtZnkj dz-2 Bkdwj 17-07-1989
59 'kkGk lksMY;kpk nk[kyk fot; ujgjh Bkdwj vtZnkj dz-2 Bkdwj 27-06-1988
60 lsokiVkP;k izFke i`"Bkph fot; ujgjh Bkdwj vtZnkj dz-2 Bkdwj & &
izr
12. Having regard to the above referred documentary evidence,
it is clear that the petitioner has produced old documentary evidence
in the nature of school record pertaining to his great-grandfather
namely Trimbak Mahadu dated 11.04.1924, wherein the caste
"Thakur" is recorded. Narhari Trimbak happens to be grandfather of
the petitioner and in his school record dated 04.07.1956, caste
"Thakur" is recorded.
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13. On careful scrutiny of the above referred old documentary
evidence, it is very much clear that consistently caste "Thakur" is
recorded in the school record of the blood relatives of the petitioner
from parental side. No contra entries are found. The vigilance officer
did not find any interpolation or manipulation in the old record relied
by the petitioner of the year 1924.
14. There is no justifiable reason to discard the documents of the
year 1924 relied by the petitioner, which is of pre-independence era.
No contra entries are found during the vigilance enquiry. The
committee has completely overlooked that aspect and invalidated the
tribe claim of the petitioner. The finding recorded by the committee to
that effect appears to be erroneous.
15. Now coming to the caste validity certificates issued in the
family of the petitioner. It is evident from the record that certificate of
validity dated 15.07.2019 is issued in favour of real brother of the
petitioner namely Deep Sanjay Thakur. The real cousin brother of the
petitioner namely Vyom Vijay Thakur is also issued with the validity
certificate dated 15.07.2019, apart from other validity certificates
issued in his family from the parental side. As on today, the validity
certificates relied upon by the petitioner still hold the field
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and no reason to discard the same. The reasons recorded by the
committee in its order in para 9 appear to be erroneous. Deep Sanjay
Tkahur happens to be real brother of the petitioner who is issued with
the validity certificate so also real cousin brother Vyom Vijay Thakur.
It is stated in the impugned order while recording the finding against
issue No.2 that above said validity holders did not produce the true
genealogy and thereby obtained validity certificates. Be that as it may,
the validity certificates relied upon by the petitioner are still hold
field, and therefore, the petitioner is entitled to get benefit of those
validity certificates in view of the decision of the Bombay High Court
in case of Anand (supra), when there is no legal impediment.
16. 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 relaxation in Government employment and elections. That
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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.
17. 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.
18. On careful scrutiny of the documentary evidence produced
by the petitioner viz. right from the year 1924 pertaining to
petitioner's great-grandfather coupled with other evidence make out a
clear picture that caste of the family of the petitioner is recorded as
"Thakur". No contra entries are found during the vigilance enquiry.
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There are three validity certificates in the family of the petitioner
including his real brother. The tribe claim as "Thakur" Scheduled
Tribe can not be denied to the petitioner.
19. In view of the above, the findings recorded by the committee
are found erroneous. The impugned order passed by the committee
invalidating tribe claim of the petitioner needs to be quashed and set
aside. The petitioner 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.1 / Scrutiny
Committee, Aurangabad dated 11.12.2019 is hereby quashed
and set aside.
(ii) Respondent No.1 / Scrutiny Committee, Aurangabad shall
issue validity certificate to the petitioner of being a member
of "Thakur Scheduled Tribe" forthwith.
(iii) The said validity certificate shall be subject to the decision
that would be taken by the committee in the proceedings
re-opned of the validity holders relied by the petitioner.
(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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