Bombay High Court
Rahul Prakash Nikam Thr His ... vs Director Of Technical Education ... on 20 January, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
1036-wp-1131-21 (Jt.)
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1131 OF 2021
Rahul Prakash Nikam
Age : 19 years, Occu.: Education,
Through his natural guardian
i.e. father Prakash Eknath Nikam
Age : 49 years, Occu: Service
R/o. Wanegaon, Tq. Phulambri
Dist. Aurangabad. ... Petitioner.
Versus
1. Director of Techninal Education,
3, Mahapalika Marg,
Mumbai.
2. Scheduled Tribe Certificate
Scrutiny Committee,
Aurangabad
Through its Member Secretary.
3. Commissioner
State CET Cell Maharashtra
8th Floor, New Excelsior Building
CET Cell (DMER), Opp. Govt.
Dental College, St. George's Hopital
Campus, Fort, Mumbai - 400 001. ... Respondents.
....
Mr. Mahesh S. Deshmukh, Advocate h/f Mr. Sagar S. Pathale,
Advocate for the petitioner.
Mr. P.S. Patil, Addl. G.P. for Respondent Nos.1 and 2.
....
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
DATED : 20.01.2021.
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JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-
1. Rule. Rule made returnable forthwith. With the consent of
learned counsel for both the sides, taken up for final hearing at
admission stage.
2. Feeling aggrieved by the impugned order passed by respondent
No.2 / Scheduled Tribe Certificate Scrutiny Committee, Aurangabad
(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 is as under:
The petitioner has completed Diploma in polytechnic in the year
2020 and now exploring possibility to take admission directly in 2 nd
year engineering course from Scheduled Tribe category and in need of
certificate of validity. While studying in college, his tribe certificate was
referred by the concerned college to respondent No.2 - committee for
validity certificate. The petitioner has submitted all the necessary
documents in the form of school record of his forefathers and old
revenue record, wherein in the caste column, the caste "Thakur" has
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been recorded. The petitioner has also produced on record the
certificates of validity issued in favour of his real uncle and close
relatives from paternal side. The vigilance was conducted. The
petitioner has submitted his reply to the vigilance report in response to
the show cause notice issued by the committee. The committee has
invalidated the tribe claim of the petitioner by impugned order dated
18.01.2021 without considering the old school record as well as the
revenue record of forefathers and tribe validity certificates relied upon
by the petitioner. The same is challenged before this Court.
4. Heard Mr. M.S. Deshmukh, Advocate holding for Mr. Sagar
Pathale, Advocate for the petitioner and Mr. P.S. Patil, Addl. G.P. for
respondent Nos.1 and 2 / State.
5. Mr. Deshmukh, learned counsel for the petitioner submitted that
the petitioner has submitted clinching evidence in the form of record of
rights in respect of real brother of great grandfather namely Rajaram
Sakharam, wherein his caste is recorded as "Thakur" and the said
document is of 1347 Fasli. Copy of form No.1, record of rights in
respect of real brother of great grandfather Bajirao and grandfather
Hariba are also placed on record, wherein their caste is recorded as
"Thakur", said document is of 24.10.1931. The school admission
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register of first degree brother grandfather Narayan Bajirao has placed
on record, wherein the date of birth is mentioned as 13.04.1922 and in
the admission register on 11.06.1936, the caste is recorded as
"Thakur".
6. According to Mr. Deshmukh, the committee has relied upon the
school record of one Trimbak Shnefad, whose caste is mentioned as
"Maratha". He is not a blood relative of the petitioner. He submitted
that the validity certificate is issued in favour of third degree sister of
the petitioner namely Krishna Gangadhar Nikam by Commissioner of
Tribal, Nashik while deciding the appeal No.6/1991 vide order dated
02.08.1991 and declared that she belongs to "Thakur" Scheduled
Tribe. The petitioner has also submitted genealogy to prove his
relationship with other validity holders. The petitioner has also
produced the judgment and order passed by this Court, Bench at
Aurangabad in writ petition No.3082/1995 dated 10.07.1995, whereby
it is held by this Curt that Kanchan Gangadhar Nikam belongs to
"Thakur" Scheduled Tribe. He submitted that there are many caste
validity certificates issued in the family of the petitioner from paternal
side blood relatives, but the committee has discarded the same without
assigning the cogent reasons.
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7. The petitioner has also produced the caste certificate issued in
favour of his cousin uncle Annasaheb Narayan Nikam dated
07.12.2005. He submitted that caste certificates were invalidated by
the committee in respect of petitioner's cousin sisters Priya Annasaheb
Nikam and Tanushri Dilip Nikam. They have challenged the order of
the committee before this Court and this Court while deciding the writ
petition No.8194/2019 dated 15.07.2019 and writ petition No. 13417
of 2018 dated 08.11.2019 pleased to quash and set aside the order
passed by the committee and directed to issue certificate of validity as
belonging to "Thakur" Scheduled Tribe. He submitted that all contra
evidence has been considered by this Court while passing the above
said judgments in respect of cousin sisters of the petitioner. Even then
the committee has overlooked this aspect and invalidated the tribe
claim of the petitioner. He submitted that the impugned order passed
by the committee is bad in law. The findings recorded by the
committee are perverse. The committee has not taken into
consideration the various decisions rendered by the Hob'ble Supreme
Court and the Bombay High Court and arrived at incorrect conclusion.
He therefore submitted that the impugned order needs to be quashed
and set aside.
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8. Per contra, Mr. P.S. Patil, learned Addl. G.P for respondent Nos.
1 and 2 / State submitted that the committee has taken into
consideration all the documentary evidence, which are placed on
record by the petitioner in support of his tribe claim. The committee
has also considered the validity certificates, which are relied by the
petitioner. After making the scrutiny of validity certificates and old
record, the committee has recorded the finding that the petitioner has
failed to prove his tribe claim as "Takur" Scheduled Tribe. The findings
recorded by the committee are well reasoned. Those are supported by
various decisions of the Hon'ble Supreme Court and the Bombay High
Court, which are referred by the committee. He submitted that it is not
a fit case to interfere with the decision of the committee.
9. We have considered the arguments advanced by the learned
counsel for the petitioner and the learned Addl. G.P. We have also
perused the impugned order passed by the committee as well as the
validity certificates and various orders passed by this Court.
10. 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
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the basis of documentary evidence.
(ii) The petitioner is not entitled to take benefit of
validity certificate issued to his blood relatives.
(iii) The petitioner has failed to prove the affinity test.
11. The petitioner has placed on record the following documentary
evidence before the committee in support of his tribe claim.
v- nLr,sotkpk izdkj nLr,sot/kkjdkps uko vtZnkj Tkkrhph Ukkasn.kh
Ø- ;kaP;k'kh ukrs ukasn fnukad
1- tkr izek.ki«k jkgwy izdk'k fude vtZnkj Bkdwj 23-12-2011
2- 'kkGk lksMY;kpk nk[kyk jkgwy izdk'k fude vtZnkj Bkdwj 23-06-2014
3- 'kkys; izos'k o fuxZe jkgwy izdk'k fude vtZnkj Bkdwj 04-04-2007
mrkjk
4- 'kkys; izos'k o fuxZe jkgwy izdk'k fude vtZnkj Bkdwj 30-06-2010
mrkjk
5- 'kiFki«k ¼uequk Q½ izdk'k ,dukFk fude oMahy & & 25-02-2019
6- 'kiFki«k ¼oa'kkoG½ Hkkuqnkl ,dukFk dkdk & & 18-02-2019
fude
7- oS/krk izek.ki«k Hkkuqnkl ,dukFk dkdk Bkdwj 21-03-2003
fude
8- 'kiFki«k ¼oa'kkoG o fnxacj x.kir fude pqyr dkdk & & 25-02-2019
oS/krk½
9- oS/krk izek.ki«k fnxacj x.kir fude pqyr dkdk Bkdwj 09-02-1998
10- 'kiFki«k ¼oa'kkoG o Lfork Hkkuqnkl fude pqyr cfg.k & & 18-02-2019
oS/krk½
11- oS/krk izek.ki«k Lfork Hkkuqnkl fude pqyr cfg.k Bkdwj 26-02--2002
12 'kiFki«k ¼oa'kkoG o fnid Hkkuqnkl fude pqyr HkkÅ & & 18-02-2019
oS/krk½
13- oS/krk izek.ki«k fnid Hkkuqnkl fude pqyr HkkÅ Bkdwj 28-04-2003
14- 'kiFki«k ¼oa'kkoG o Xkk;«kh jkew fude pqyr cfg.k & & 18-02-2019
oS/krk½
15- oS/krk izek.ki«k Xkk;«kh jkew fude pqyr cfg.k Bkdwj 31-05-2011
16- tkr izek.ki«k jkgwy izdk'k fude vtZnkj & & 31-12-2001
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17- gDd uksan.kh i«kd jktkjke l[kkjke pqyr iatksck & & 1347 Qlyh
fude
18- gDd uksan.kh i«kd Ckthjko Bkdwj pqyr iatksck & & & &
19- gDd uksan.kh i«kd gjhck l[kkjke iatksck Bkdwj & &
20 QsjQkj i«kd ,dukFk gjh vktksck Bkdwj 1951
21 QsjQkj i«kd gjhck l[kkjke iatksck Bkdwj 1950&51
22 QsjQkj i«kd ukenso gjh pqyr Bkdwj & &
vktksck
23 [email protected] mrkjk ,dukFk vktksck & & & &
24 'kkGk lksMY;kpk nk[kyk izdk'k ,dukFk fude oMhy Bkdwj 25-05-1981
25 'kkys; izos'k o fuxZe izdk'k ,dukFk fude oMhy Bkdwj 30-06-1977
mrkjk
26 vkMuko nq:Lrhckcr izdk'k ,dukFk Bkdwj oMhy & & 04-10-1985
vtZ mQZ izdk'k ,dukFk
fude
27 'kiFki«kkph Nk;kizr ,dukFk gjh fude vktksCkk & & 28-01-1986
¼vkMuko nq:Lrhckcr½
28 'kkys; izos'k o fuxZe izdk'k ,dukFk ¼Bkdwj½ oMhy Bkdwj 25-05-1981
jftLVj lR;izr fude
29 tkr izek.ki«k Hkkuqnkl ,dukFk dkdk Bkdwj 18-04-1977
fude
30 lsokiVkP;k izFke i`"Bkph Hkkuqnkl ,dukFk dkdk Bkdwj & &
izr fude
31 'kkys; izos'k o fuxZe Hkkuqnkl ,dukFk dkdk Bkdwj 08-07-1964
mrkjk fude
32 'kkys; izos'k o fuxZe Hkkuqnkl ,dukFk dkdk Bkdwj 22-06-1966
mrkjk fude
33 'kkGk lksMY;kpk nk[kyk Hkkuqnkl ,dukFk dkdk Bkdwj 12-11-1968
fude
34 'kkys; izos'k o fuxZe Hkkuqnkl ,dukFk dkdk Bkdwj 1969&70
mrkjk fude
35 'kkys; izos'k o fuxZe Hkkuqnkl ,dukFk dkdk Bkdwj 12-11-1968
mrkjk fude
36 'kkys; izos'k o fuxZe Hkkuqnkl ,dukFk dkdk Bkdwj 12-11-1968
mrkjk fude
37 'kkGk lksMY;kpk nk[kyk Hkkuqnkl ,dukFk dkdk Bkdwj 22-06-1966
fude
38 tkr izek.ki«k Lfork Hkkuqnkl fude pqyr cfg.k Bkdwj 04-09-1998
39 tkr izek.ki«k Xkk;«kh jkew fude pqyr cfg.k Bkdwj 24-07-2003
40 tkr izek.ki«k d`".kk xaxk/kj fude pqyr cfg.k Bkdwj 07-04-1989
41 vfiy eatqjh vkns'k d`".kk xaxk/kj fude pqyr cfg.k Bkdwj 02-08-1991
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42 tkr izek.ki«k dkapu xaxk/kj fude pqyr cfg.k Bkdwj 16-07-1993
43 ek- mPp U;k;ky;kP;k dkapu xaxk/kj fude pqyr cfg.k Bkdwj 10-07-1995
fu.kZ;kph izr
¼fjV ;kfpdk dz-
[email protected]½
44 oS/krk izek.ki«k dkfrZdh xaxk/kj fude pqyr cfg.k Bkdwj 10-06-1999
45 oS/krk izek.ki«k nhukukFk vacknkl pqyr dkdk Bkdwj 24-01-2005
fude
46 tkr izek.ki«k nhukukFk vacknkl pqyr dkdk Bkdwj 05-11-1977
fude
47 'kkys; izos'k o fuxZe nhukukFk vacknkl pqyr dkdk Bkdwj 01-04-1958
mrkjk
48 lsokiVkP;k izFke i`"Bkph xaxk/kj vacknkl fude pqyr dkdk Bkdwj & &
izr
49 tkr izek.ki«k xaxk/kj vacknkl fude pqyr dkdk Bkdwj 26-10-1977
50 lsokiVkrhy uksanhckcr th-,- fude pqyr dkdk Bkdwj 04-07-1991
izek.ki«k
51 oS/krk izek.ki«k /kuat; fnukukFk fude pqyr HkkÅ Bkdwj 26-06-1997
52 tkr izek.ki«k /kuat; fnukukFk fude pqyr HkkÅ Bkdwj 09-06-1992
53 oS/krk izek.ki+«k v..kklkgsc ukjk;.k pqyr dkdk Bkdwj & &
fude
54 tkr izek.ki«k v..kklkgsc ukjk;.k pqyr dkdk Bkdwj 23-08-1978
55 'kkGk lksMY;kpk nk[kyk Ukkjk;.k ckthjko pqyr Bkdwj 11-06-1936
vktksck
56 'kkys; izos'k o fuxZe Ukkjk;.k ckthjko pqyr Bkdwj 11-06-1936
mrkjk vktksck
57 oS/krk izek.ki+«k iqtk v..kklkgsc pqyr cfg.k Bkdwj 13-09-2011
fude
58 oS/krk izek.ki+«k fizrh v..kklkgsc pqyr cfg.k Bkdwj 28-06-2011
fude
59 ek- mPp U;k;ky;kP;k ruqJh fnyhi fude pqyr cfg.k Bkdwj 08-11-2019
fu.kZ;kph izr
¼fjV ;kfpdk dz-
[email protected]½
60 ek- mPp U;k;ky;kP;k fiz;k v..kklkgsc pqyr cfg.k Bkdwj 15-07-2019
fu.kZ;kph izr fude
¼fjV ;kfpdk dz-
[email protected]½
12. The petitioner's father has placed on record genealogy on behalf
of his son as well as in detail genealogy at page Nos. 65 and 66. The
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committee has not disputed the genealogy. Mr. Patil, learned Addl.
G.P. for State has also fairly conceded the position about the various
validity certificates issued in favour of the blood relatives of the
petitioners from paternal side in view of orders passed by this Court in
number of writ petitions. He still justified the order passed by the
committee by placing reliance on the reasons recorded by the
committee while giving findings against the issue Nos. 1 to 3.
13. It is evident from the record that following validity certificates
have been issued in favour of the blood relatives of the petitioner from
paternal side viz. real uncle, cousin uncles, aunts, cousin brothers,
which are as follows.
(i) Validity certificate of Bhanudas Eknath Nikam dated 21.03.2003.
(ii) Validity certificate of Savita Bhanudas Nikam dated 26.02.2002.
(iii) Validity certificate of Kavita Bhanudas Nikam dated 28.03.2003.
(iv) Validity certificate of Ashish Annasaheb Nikam dated 9.6.2000.
(v) Validity certificate of Dhananjay Dinanath Nikam dt. 26.6.1997.
(vi) Validity certificate of Digambar Ganpat Nikam dated 9.2.1998.
(vii) Validity certificate of Kartrik Gangadhar Nikam dt. 10.06.1999.
(viii) Validity certificate of Dinanath Ambadas Nikam dt. 24.01.2005.
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(ix) Validity certificate of Ajaykumar Annasaheb Nikam dated
22.11.2004.
(x) Validity certificate of Annasaheb Narayan Nikam dt. 07.10.2005.
(xi) Validity certificate of Priti Annasaheb Nikam dated 28.06.2011.
(xii) Validity certificate of Puja Annasaheb Nikam dated 13.9.2011.
(xiii) Validity certificate of Ravindra Vishambar Nikam dt. 24.1.2005.
(xiv) Validity certificate of Alka Vishambar Nikam dated 24.01.2005.
14. Tanushri Dilip Nikam happens to be cousin niece of the
petitioner. Her tribe claim was invalidated by the committee. Feeling
aggrieved by the said decision, she had filed writ petition No.13417 of
2018 before this Court. The said writ petition came to be allowed by
this Court vide judgment and order dated 08.11.2019 and thereby
quashed and set aside the order passed by the committee and directed
to issue certificate of validity as belonging to "Thakur" Scheduled
Tribe.
The following validity certificates have been issued as per the
judgments and orders passed by this Court in writ petitions, which are
as under.
Sr. Name Relationship Writ petition
No. with the No. and date of
petitioner decision
1 Tanushir Dilip Nikam Cousin Niece Writ Petition No.
13417/2018
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dtd. 08.11.2019
2 Priya Annasaheb Nikam Cousin Sister Writ Petition No.
8197/2019
dtd. 15.07.2019
3 Krushna Gangadhar Nikam Third degree Appeal 6/91 dtd
Sister 2.8.1991 by
Trible
Commissioner,
Nashik
4 Kanchan Gangadhar Nikam Third degree Writ Petition No.
Sister 3082/1995
dtd. 10.07.1995
5 Digambar Ganpatrao Nikam Uncle Writ Petition No.
3082/1995
dtd. 10.07.1995
6 Dhananjay Dinanath Nikam Cousin Brother Writ Petition No.
3082/1995
dtd. 10.07.1995
15. Apart from that, the petitioner has also placed on record the
validity certificate of his real uncle namely Bhanudas Eknath Nikam
dated 21.03.2003 issued by the Scrutiny Committee, Nahsik as well as
the validity certificate issued in favour of real uncle Digambar
Ganpatrao Nikam dated 09.02.1998 issued by the Scrutiny Committee,
Nashik and the validity certificate issued in favour of cousin brother
namely Dhananjay Dinnanath Nikam dated 26.06.1997.
16. The contra entries were considered while issuing validity
certificate to the close blood relatives from paternal side of the
petitioner as per the order of this Court in above referred writ
petitions.
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17. The reasons given by the committee while invalidating the tribe
claim of the petitioner and answering negatively to issue No.1 are not
in tune with the judgments and orders passed by this Court while
deciding the above said bunch of writ petitions.
18. The petitioner is entitled to get benefit of tribe validity certificate
issued to his close blood relatives like real uncle, real cousin sister in
view of ratio laid down in case of Apoorva D/o Vinay Nichale Vs.
Divisional Caste Certificate Scrutiny Committee No. 1 and others
reported in 2010 (6) Mh.L.J. 401, when there is no legal impediment
before the committee. The committee has refused to extend the benefit
while recording the finding against issue No.2 without considering the
legal position.
19. The committee has also observed that the family of the
petitioner is not migrated from tribal area. That observation made by
the committee is again 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
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inhabited by Thakurs to claim benefits 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.
20. 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 Vs. Committee for Scrutiny and Verification of Tribe claim
and ors. reported in (2012)1 SCC 113, wherein it is observed by the
Hon'ble Supreme Court that the affinity test is not a litmus test for
establishing the link of the petitioner to be Scheduled Tribe. The
affinity test may be used to corroborate the documentary evidence and
should not be the sole criteria to reject a claim.
21. Having regard to the above reasons and discussion, we arrived at
conclusion that the impugned order passed by the committee dated
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18.01.2021, thereby invalidating tribe claim of the petitioner needs to
be quashed and set aside. The petitioner is entitled to get the tribe
validity certificate as belonging to "Thakur" Scheduled Tribe, when
there are number of validity certificates issued in the family of the
petitioner from paternal side. With these reasons, we conclude and
proceed to pass the following order.
ORDER
(i) The writ petition is allowed.
(ii) The impugned judgment and order of the Committee is quashed
and set aside.
(iii) The Committee shall issue validity certificate to the petitioner of
"Thakur" (Scheduled Tribe) immediately.
(iv) In case the orders passed by the High Court in the matter of
validity holders relied by the petitioner are reviewed, then present
judgment would be subject to the same.
(v) Rule is made absolute accordingly.
(vi) 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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