Bombay High Court
Girish Ganesh Thakur vs The State Of Maharashtra And ... on 30 January, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
902-wp-1701-21 (Jt.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1701 OF 2021
Girish Ganesh Thakur
Age : 19 years, Occu.: Student,
R/o. New HODCO Colony
Wanjola Road, Bhusawal
Dist. Jalgaon ... Petitioner.
Versus
1. The State of Maharashtra
Through its Secretary
Home Department, Mantralaya,
Mumbai.
2. The Scheduled Tribe Certificate
Scrutiny Committee, Nandurbar
3. Commissionerate,
Common Entrance Test Cell,
8th Floor,New Excelsior Building
A.K. Nayak Marg, Fort,
Mumbai - 400 001.
4. Sub Divisional Officer
Faizpur, Dist. Jalgaon.
5. The Principal
Bhartiya Vidhyabhavan
Sardar Patel Institute of Technology
Andheri (West), Mumbai. ... Respondents.
....
Mr.anandsingh Bayas, Advcocate for the Petitioner.
Mr. P.S. Patil, Addl. G.P. for Respondents / State.
....
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
DATED : 30th January, 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, 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:
The caste claim of the petitioner of being "Thakur" Scheduled
Tribe was referred to the committee for tribe validation along with
documentary evidence. 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. According to the petitioner, the committee
has invalidated his tribe claim as being "Thakur" Scheduled Tribe
without considering the documentary evidence submitted by him. The
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documents relied upon by the petitioner are of pre-independence era.
The committee has discarded those documents without proper
consideration and invalidated his tribe claim.
4. Heard Mr. A.S. Bayas, learned counsel for the petitioner and Mr.
P.S. Patil, learned Addl. G.P. for respondents / State. Perused the
impugned order passed by the committee dated 25.01.2021, vigilance
report, report of the Research officer, genealogy and other papers.
5. Mr. Bayas, learned counsel for the petitioner invited our
attention to the old documentary evidence produced by the petitioner
right from the years 1916, 1919, 1923 and 1926 pertaining to his
great-grandfather, cousin grandfather to establish that the entry of
caste as "Thakur" is recorded right from the year 1916. Mr. Bayas
submitted that the genealogy is not disputed. The committee has
discarded the old documentary evidence and that too of the
pre-independence era without assigning the reasons. The findings
recorded by the committee are erroneous as well as contrary to the
decisions of the Hon'ble Supreme Court and the Bombay High Court.
He pointed out that during the vigilance enquiry, no contra entries
were found in order to take doubt about the caste claim of the
petitioner. The area restriction is removed even then the committee
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has considered that aspect and turn down the tribe claim of the
petitioner. The affinity test is not a litmus test. To support his
argument, Mr. Bayas has placed on record the decision of 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. Patil, learned Addl. G.P. for Respondents / State submitted
that the committee has taken into consideration 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. The findings recorded by
the committee are well reasoned. The decision given 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.
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 :
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(i) The petitioner has failed to prove his 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 of his forefathers in the form of school
record right from the years 1916, 1919 and 1923, wherein the caste
"Thakur" has been recorded.
The following documentary evidence was produced by the
petitioner before the committee.
v- nLr,sotkpk izdkj nLr,sot/kkjdkps uko vtZnkj Tkkrhph Ukkasn.kh
Ø- ;kaP;k'kh ukrs ukasn fnukad
1- 'kkys; iqjkok fxjh"k xqykc Bkdwj vtZnkj Bkdwj 06-06-2007
2- 'kkys; iqjkok x.ks'k rqG'khjke Bkdwj oMahy fganw 01-09-1992
¼O.B.C.½
3- 'kkys; iqjkok v..kk ukenso Bkdwj vktksck Bkdwj 24-06-1955
4- 'kkys; iqjkok Ukkenso jkepanz Bkdwj iatksck Bkdwj 09-08-1916
5- 'kkys; iqjkok fo'kk[kk x.ks'k Bkdwj Cfg.k fganw Bkdwj 15-06-2009
¼v-t-½
10. The vigilance officer has conducted enquiry and collected
following piece of documentary evidence.
v- nLr,sotkpk izdkj nLr,sot/kkjdkps uko vtZnkj Tkkrhph Ukkasn.kh
Ø- ;kaP;k'kh ukrs ukasn fnukad
1- 'kkys; iqjkok Ukkenso jkepanz Bkdwj iatksck Bkdwj 09-08-1916
2- 'kkys; iqjkok 'kkew jkepanz Bkdwj pqyr iatksck Bkdwj 17-06-1919
3- 'kkys; iqjkok gjpan jkepanz Bkdwj pqyr iatksck Bkdwj 23-03-1923
4- 'kkys; iqjkok eqjyh/kj gjpan Bkdwj pqyr Bkdwj 14-11-1949
vktksck
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5- 'kkys; iqjkok txUukFk gjpan Bkdwj pqyr Bkdwj 16-07-1955
vktksck
6- 'kkys; iqjkok v..kk ukenso Bkdwj vktksck Bkdwj 24-06-1955
7- 'kkys; iqjkok jes'k 'kkejko Bkdwj pqyr pqyr Bkdwj 19-06-1958
vktksck
8- 'kkys; iqjkok x.ks'k rqG'khjke Bkdwj oMahy fganw 12-06-1986
vks-ch-lh-
9- 'kkys; iqjkok fxjh"k xqykc Bkdwj vtZnkj fganw 06-06-2007
Bkdwj
11. Having regard to the above stock of documentary evidence, it is
seen that the petitioner has produced documentary evidence pertaining
to his great-grandfather namely Namdev Ramchandra Thakur in the
form of school record dated 09.08.1916, wherein his caste has been
recorded as "Thakur". It is evident that Shamu Ramchandra Thakur
and Harchand Ramchandra Thakur happen to be cousin
great-grandfathers of the petitioner and in their school record dated
17.06.1919 and 23.03.1923 respectively, their caste is recorded as
"Thakur". Further it is evident that Murlidhar Harchand Thakur
happens to be cousin grandfather of the petitioner and his school
record dated 14.11.1949 speaks about the entry of his caste in the
caste column as "Thakur". All the entries right from the year 1916
speak about the entry of "Thakur" in the caste column except
petitioner's father's school record dated 12.06.1986, wherein his caste
is recorded as "Hindu" (O.B.C.).
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12. Hindu is a religion and not a caste. It is evident from the record
right from the petitioner's great-grandfather and grandfather, in his
family caste "Thakur" is recorded. The documents placed on record by
the petitioner right from the years 1916, 1919 and 1923 are
supporting. The old documentary evidence produced by the petitioner
is of pre-independence era, which has more probative value and it
needs to be believed when there are no contra entries on record. The
vigilance officer has failed to collect any contra evidence during the
vigilance enquiry. There is no justifiable reason to discard the
documents of pre-independence era in absence of any contra evidence.
13. The committee has further recorded the finding 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 view is
expressed in the decision rendered by the Division Bench in case of
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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. The genuineness of the 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 the
Hon'ble Supreme Court has held that the affinity test is not a litmus
test for for establishing the link of the applicant with a Scheduled
Tribe. Nevertheless, the claim by an applicant that he is a part of a
Scheduled Tribe and is entitled to the benefit extended to that Tribe,
cannot per se be disregarded on the ground that his present traits do
not match his tribe's peculiar anthropological and ethnological traits,
deity, rituals, customs, mode of marriage, death ceremonies, method of
burial of dead bodies, etc. Thus, the affinity test may be used to
corroborate the documentary evidence and should not be the sole
criteria to reject a claim.
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15. On making careful scrutiny of the documentary evidence
produced by the petitioner as well as the documentary evidence
collected by the vigilance officer during the vigilance enquiry make
out a clear picture that the caste of the family of the petitioner is
recorded as "Thakur" right from the years 1916, 1919 and 1923.
16. 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. He is entitled to get the tribe validity certificate. 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 passed by the Committee is
quashed and set aside.
(iii) The committee shall issue the validity certificate to the
petitioner of "Thakur", Scheduled Tribe immediately.
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(iv) Rule is made absolute accordingly.
(v) 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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