Bombay High Court
Smt. Jayshree Subhash ... vs The State Of Maharashtra, Through ... on 8 January, 2021
Bench: R.D. Dhanuka, Madhav Jayajirao Jamdar
WP 2230-13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Amk/kvm/ppn
WRIT PETITION NO. 2230 OF 2013
Smt. Jayshree d/o Subhash Suryawanshi )
@ Smt. Jayshree w/o Nitin Thakur, )
Age-32 years, Occ. Asstt. Teacher (Primary), )
At present - R/o. "Radhakrishna Apartment", )
C-Wing, Room No. 109, Dongarpada Road, )
Virar (West), Tq. Vasai, Dist.- Thane. ) .. Petitioner
Vs.
1. The State of Maharashtra )
Department of Tribal Development, )
Mantralaya, Mumbai-32 )
Through its Secretary )
2. The Scheduled Tribe Certificate )
Scrutiny Committee, Konkan Division, )
Vedant Sankul, Opp : Kores Company, )
Thane through its Member Secretary )
3. The Sub Divisional Officer (Rev), )
Dahanu Division, Dahanu, )
Dist.-Thane )
4. The Chief Executive Officer )
Zilla Parishad, Thane )
5. The Education Officer (Primary) )
Zilla Parishad, Thane. )
6. The Block Education Officer, )
Panchayat Samiti, Palghar ) .. Respondents
Mr. Madhav Golegaonkar a/w. Mr. A. S. Golegaonkar for the Petitioner.
Mr. A. I. Patel, Addl. G. P. a/w. Mr. K. S. Thorat, AGP and Ms. Geeta
Sonawane, AGP for the Respondent-State.
1/37
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CORAM : R. D. DHANUKA &
MADHAV J. JAMDAR, JJ.
Judgment reserved on :15th December 2020
Judgment pronounced on :8th January 2021
JUDGMENT (Per R. D. Dhanuka, J.)
1. By this Petition filed under Article 226 of the Constitution of India,
the Petitioner has impugned the decision and order of the Scheduled Tribe
Certificate Scrutiny Committee, Konkan Division, Thane-Respondent No.2
herein invalidating the claim of the Petitioner and seeks declaration that the
Petitioner belongs to "Thakur-Scheduled Tribe" (Reserved Category) by
issuing appropriate writ, order and direction as the case may be. Some of
the relevant facts for the purpose of deciding this Writ Petition are as under:
2. On or about 21.03.2000 the Petitioner was appointed as an Assistant
Teacher by Respondent No.4. She joined her services on 10.04.2000 in
Panchayat Samiti School, Palghar. She was posted in Zilla Parishad School,
Dharatpada, Taluka-Palghar on 28.06.2000. Her appointment was against
the Scheduled Tribe Reserved Category. Her tribe claim in the prescribed
format was referred to Respondent No.2-Committee through Block
Education Officer, Panchayat Samiti, Palghar vide letter dated 21.01.2011.
The Petitioner submitted 38 documents before Respondent No.2-Committee
in support of her Tribe Claim.
3. It is the case of the Petitioner that the Petitioner had submitted School
Leaving Certificate issued by the Principal, Savitribai Fule Adhyapak
Vidyalaya, Kinhwali showing her caste recorded as "Thakur". The
Petitioner also submitted Government Gazette dated 04.11.1999 showing
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the change in the name of the Petitioner from Jayshree Subhash
Suryawanshi to Jayshree Nitin Thakur after her marriage. The Petitioner
submitted School Leaving Certificate in respect of her father Subhash
Pitambar Suryawanshi issued by Head Master, Zilla Parishad School, Hol,
Taluka Sindkheda where he had completed his Primary School education.
His caste was recorded as Thakur on 22.06.1965. Father of the Petitioner
had completed his High School education from Vikas Vidyalaya, Nardhane,
Dist.- Dhule wherein his caste was recorded as "Thakur" on 16.06.1972.
The said Certificate also submitted by the Petitioner before Respondent
No.2-Committee.
4. The Petitioner had submitted Caste Certificate as well as 1 st page of
extract of Service Book of her father, who was in Government service at
Manor, recording caste of her father as "Thakur-Scheduled Tribe". The
Petitioner also submitted the school record of her real paternal uncles i.e.
School Leaving Certificates issued by the Head Master, Zilla Parishad
Marathi School, Hol, Taluka Sindkheda in respect of Motilal Pitambar
Suryawanshi and Shantilal Pitambar Thakur who were admitted in the said
school on 19.06.1967 and 17.06.1971 respectively. It is the case of the
Petitioner that both these uncles had been issued Caste Certificates as
belonging to "Thakur-Scheduled Tribe" by the Tahsildar and Executive
Magistrate, Sindkheda.
5. The Petitioner submitted the School Leaving Certificate of her grand-
father Pitambar Vedu Thakur who was admitted in Zilla Parishad Marathi
School, Hol, Taluka-Sindkheda on 19.07.1941 wherein his caste was
recorded as "Thakur". The mother of the Petitioner i.e. Meena Handu
Thakur had been issued Caste Certificate by the Executive Magistrate,
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Dhule belonging to "Thakur-Scheduled Tribe". The name of the mother of
the Petitioner was changed from Ku. Meena Handu Thakur to Sou. Meena
Subhash Suryawanshi after her marriage and was notified vide Government
Gazette dated 27.05.1982. The said Caste Certificate was also submitted by
the Petitioner before Respondent No.2-Committee. The Petitioner also
submitted the Caste Validity Certificate issued to Jamsing Handusing
Bhamare who is the maternal uncle i.e. brother of Petitioner's mother issued
by Scheduled Tribe Certificate Scrutiny Committee, Nashik on 16.02.2000
accepting the Tribe Claim of the said uncle of the Petitioner. Along with
said Caste Validity Certificate the Petitioner also submitted an affidavit of
the said Jamsing Handusing Bhamare showing genealogy and relationship
with the Petitioner.
6. The Petitioner submitted detailed affidavit mentioning the details of
documents as well as letter dated 10.04.2006 issued by the Information
Officer and Desk Officer, Adiwasi Sanshodhan Va Prashikshan Sanstha,
Maharashtra State, Pune in favour of Raju Madhukar Ingle mentioning
therein that as per revised order of 1976, there is no area restriction in case
of "Thakur-Scheduled Tribe". The Petitioner also submitted Maharashtra
State Gazettee of Jalgaon district published by Department of Cultural
Affairs, Maharashtra State of the year 1994 showing the population of
"Thakur" Caste in Khandesh district since long. The Petitioner also
submitted in detail the special characteristic of her community.
7. It is the case of the Petitioner that since Respondent Nos.4 to 6 were
insisting the Petitioner to submit Caste Validity Certificate and had stopped
payment of her salary from February, 2011, the Petitioner filed a Writ
Petition bearing No. 8375 of 2011 in this Court. The said Writ Petition was
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admitted on 30.11.2011. This Court directed the Caste Scrutiny Committee
to decide the Tribe Claim of the Petitioner on or before 31.03.2012 and
directed the Respondents not to take any coercive action against the
Petitioner till next date.
8. The matter of the Petitioner was thereafter referred to Vigilance Cell
for Home and School for inquiry wherein the Police Inspector of Vigilance
Cell Shri A. S. Pawar from Nandurbar Committee visited original place of
residence of the Petitioner and submitted his report to the Committee at
Nandurbar on 20.01.2012. The Vigilance Cell thereafter submitted a report
to the Committee on 30.01.2012. The Research Officer however offered his
negative remarks on the Vigilance Cell Report on 08.02.2012. On
09.02.2012 the said Vigilance Report was served on the Petitioner by
Respondent No.2-Committee with a direction to reply to the said report
within 15 days from the date of receipt of the said report.
9. On 25.02.2012 the Petitioner submitted her detailed reply to the
Vigilance Cell Report to the Committee on each and every point raised by
the Research Officer and objected to the remarks of the Research Officer.
The Petitioner was called for personal hearing on 31.03.2012 which was
attended by her along with her father. The Petitioner and her father were
asked to explain the characteristics of their community in respect of
marriage system, traditional dress, surnames of relatives which were
disclosed by the Petitioner and her father.
10. By an order dated 31.03.2012 Respondent No.2-Committee
invalidated the claim of the Petitioner on the ground that the Petitioner had
failed to prove her claim on the count of entire evidence on record,
prevailing legal position, area restriction, Validity Certificate issued in
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favour of maternal uncle and Affinity Test. The Petitioner impugned the
said decision of the Scrutiny Committee dated 31.03.2012 by filing a Writ
Petition bearing No. 4854 of 2012 before this Court. This Court passed an
order in the said Writ Petition on 14.12.2012 thereby quashing and setting
aside the said decision of the Scrutiny Committee and directing the Scrutiny
Committee to consider the claim of the Petitioner afresh on the ground that
there was no serious consideration of the issue of Affinity Test as there was
no analysis with regard to Affinity Test in the said impugned decision of the
Committee. This Court kept all the questions raised in the said Writ Petition
by the Petitioner as open while remanding the matter back to the Scrutiny
Committee.
11. By an order dated 24.11.2012 the Respondent No.4 terminated the
services of the Petitioner after the said decision of the Scrutiny Committee
dated 31.03.2012 invalidating the Caste Claim of the Petitioner. Respondent
No.6 issued a final termination order dated 30.11.2012 based on the order
dated 24.11.2012 passed by Respondent No.4. The Respondent No.6
however by an order dated 24.01.2013 cancelled the order of termination
dated 24.11.2012 issued to the Petitioner. The Petitioner accordingly joined
the services with Respondent Nos.4 to 6 on 07.02.2013 and still is in
service.
12. Pursuant to the said order dated 14.12.2012 passed by this Court
remanding the matter back to the Scrutiny Committee, the Petitioner was
called for personal hearing by the Scrutiny Committee on 10.01.2013 which
was attended by the Petitioner and her father. It is the case of the Petitioner
that the Petitioner and her father gave various detailed information to the
Scrutiny Committee including the copy of genealogy of the Petitioner's
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family and the documents which were already filed before the Committee. It
is the case of the Petitioner that the Scrutiny Committee however once again
rejected the Tribe Claim of the Petitioner on the same ground of Affinity
Test without giving any reasoning by order dated 05.02.2013. The
Petitioner has impugned the said decision and order of Respondent No.2-
Committee dated 05.02.2013 in this Writ Petition.
13. Mr. Golegaonkar, learned Counsel for the Petitioner invited our
attention to various exhibits annexed to the Petition, tendered written
submission and also filed two compilations of Judgments some of which are
referred to and relied upon during the course of his oral submission. It is
submitted by the learned Counsel that the Vigilance Officer had submitted
the Vigilance Report to the Scrutiny Committee after due verification of the
documents produced by the Petitioner and found those documents to be
correct. The Scrutiny Committee however totally ignored the entire
documentary evidence on record produced by the Petitioner including the
basic school record of the Petitioner herself, her father, real paternal uncles
and other close blood relatives issued by the Competent Authorities showing
social status of the entire family. Though all these documents which are old
and for pre-independence period had great probative value are totally
ignored in the impugned order. Not a single contra documentary evidence
was produced on record warranting the rejection of the Tribal Claim made
by the Petitioner.
14. The learned Counsel placed reliance on the Judgment of the Supreme
Court in the case of Anand Vs. Committee for Scrutiny and Verification of
Tribe Claims & Ors. 2012 (1) SCC 113. It is held that:
"20. The rules further stipulate that the Vigilance Officer shall
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personally verify and collect all the facts about the social status
claimed by the applicant or his parents or guardians, as the case may
be. He is also required to examine the parents or the guardians or the
applicant for the purpose of verification of their tribe. It is evident
that the scope of enquiry by the Vigilance Officer is broad-based and
is not confined only to the verification of documents filed by the
applicant with the application or the disclosures made therein.
Obviously, the enquiry, supposed to be conducted by the Vigilance
Officer, would include the affinity test of the applicant to a particular
tribe to which he claims to belong. In other words, an enquiry into
the kinship and affinity of the applicant to a particular Scheduled
Tribe is not alien to the scheme of the Act and the Rules. In fact, it is
relevant and germane to the determination of social status of an
applicant.
21. We are of the view that for the purpose of examining the
caste claim under the Rules, the following observations of this Court
in Madhuri Patil, still hold the field:
"13. ...5. ... The vigilance officer should personally
verify and collect all the facts of the social status claimed
by the candidate or the parent or guardian, as the case
may be. He should also examine the school records, birth
registration, if any. He should also examine the parent,
guardian or the candidate in relation to their caste etc. or
such other persons who have knowledge of the social
status of the candidate and then submit a report to the
Directorate together with all particulars as envisaged in
the pro forma, in particular, of the Scheduled Tribes
relating to their peculiar anthropological and ethnological
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traits, deity, rituals, customs, mode of marriage, death
ceremonies, method of burial of dead bodies etc. by the
castes or tribes or tribal communities concerned, etc."
22. It is manifest from the afore-extracted paragraph that the
genuineness of a caste claim has to be considered not only on a
thorough examination of the documents submitted in support of the
claim but also on the affinity test, which would include the
anthropological and ethnological traits etc., of the applicant.
However, it is neither feasible nor desirable to lay down an absolute
rule, which could be applied mechanically to examine a caste claim.
Nevertheless, we feel that the following broad parameters could be
kept in view while dealing with a caste claim:
(i) While dealing with documentary evidence, greater
reliance may be placed on pre-Independence documents
because they furnish a higher degree of probative value to the
declaration of status of a caste, as compared to post-
Independence documents. In case the applicant is the first
generation ever to attend school, the availability of any
documentary evidence becomes difficult, but that ipso facto
does not call for the rejection of his claim. In fact the mere fact
that he is the first generation ever to attend school, some
benefit of doubt in favour of the applicant may be given.
Needless to add that in the event of a doubt on the credibility of
a document, its veracity has to be tested on the basis of oral
evidence, for which an opportunity has to be afforded to the
applicant;
(ii) While applying the affinity test, which focuses on the
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ethnological connections with the Scheduled Tribe, a cautious
approach has to be adopted. A few decades ago, when the
tribes were somewhat immune to the cultural development
happening around them, the affinity test could serve as a
determinative factor. However, with the migrations,
modernisation and contact with other communities, these
communities tend to develop and adopt new traits which may
not essentially match with the traditional characteristics of the
tribe. Hence, the affinity test may not be regarded as a litmus
test 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 tribes' 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.
23. Needless to add that the burden of proving the caste
claim is upon the applicant. He has to produce all the requisite
documents in support of his claim. The Caste Scrutiny Committee
merely performs the role of verification of the claim and therefore,
can only scrutinise the documents and material produced by the
applicant. In case, the material produced by the applicant does not
prove his claim, the Committee cannot gather evidence on its own to
prove or disprove his claim."
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15. It is submitted that the order passed by the Scrutiny Committee is
totally contrary to the principles laid down by the Supreme Court in the said
Judgment of Anand (supra).
16. Learned Counsel placed reliance on the Judgment of this Court in the
case of Apoorva d/o Vinay Nichale Vs. Divisional Caste Certificate
Scrutiny Committee No.1 & Ors. 2010 (6) Mh.L.J. in support of his
submission that the Scrutiny Committee ought to have considered the
Validity Certificate issued to the close blood relatives of the Petitioner i.e.
cousin grand-father of the Petitioner from paternal side while considering
the tribal claim made by the Petitioner. He relied upon paragraphs 7 and 9
of the said Judgment. He submits that Respondent No.2-Committee could
not have invalidated the Tribe Claim of the Petitioner solely on the ground
of Affinity Test.
17. It is submitted by the learned Counsel that in the impugned decision
Respondent No.2-Committee referred to the statement of the grand father of
the Petitioner (Thakur) bearing information on traits, characteristic, rituals
category sought and answers given by the grand-father of the Petitioner
about wedding, after birth ceremonies, rituals followed in tribal community
as well as the information given about the traditions, marriages and funeral
and special traits and characteristics, rituals which answers were correct and
totally matched with the traditions followed in Thakur Schedule Tribe. The
surname of the relatives of the Petitioner were stated as Pawar, Bhil, Ahire,
Sonwane, Vaishva etc. It is submitted that even in these families, the
Scrutiny Committee after following the procedure had already issued a
Validity Certificate. The finding of the Scrutiny Committee that the
Petitioner had failed in Affinity Test is without any reasons and without
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recording any specific finding as to which answers given by the Petitioner
were incorrect or there was any lack of information on the part of the
Petitioner. The Scrutiny Committee has passed a casual order by
overlooking the large number of documents produced by the Petitioner and
various replies given to various questions by the Petitioner and her father
during the course of oral hearing. The impugned decision of the Committee
is in breach of the order dated 05.02.2013 passed by this Court by
remanding the matter back to the Committee and shows non application of
mind.
18. It is submitted by the learned Counsel that the copies of school record
in respect of the Petitioner and her relatives wherein caste was recorded as
Hindu Thakur have been discarded on the ground that nowhere on those
school records it was mentioned as "Thakur-Scheduled Tribe". He submits
that only entry as Thakur cannot be the reason in an automatic validation of
Tribe Claim. He submits that once a particular community is included in the
list of Scheduled Tribe for the State then the said community from the State
stands to be Scheduled Tribe and it cannot be said that the said community
is from non-tribal group. Once a particular community is declared as
Scheduled Tribe, then it is to be treated as Scheduled Tribe throughout the
State.
19. It is submitted that the Scrutiny Committee could not have bifurcated
the Thakur community which is declared as Scheduled Tribe by inserting in
serial No.44 in the list of Scheduled Tribe in the State of Maharashtra in
1950 by holding that "Thakur community" in the State of Maharashtra was
in existence other than "Thakur Scheduled Tribe" i.e. "Non Tribal-Thakur".
He submits that this part of the order is ex facie contrary to the Presidential
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Orders since 1950 amended by the Amendment Act, 1976 by which the
"Thakur" community is included in Scheduled Tribes. The learned Counsel
placed reliance on the Judgment of Supreme Court in the case of State of
Maharashtra Vs. Milind Khatware & Ors., 2001 (1) Mh.L.J. 1.
20. Learned Counsel submits that the Scheduled Tribe orders must be
read as it is. In case of Thakur community, in the First Presidential Order of
1950 Part-VII A-Maharashtra at Sr. No.5 Thakur/Thakar including Ka-
Thakur, Ka-Thakar, Ma-Thakur, Ma-Thakar have been shown as Scheduled
Tribes. In Part IX of the Maharashtra Scheduled Castes and Scheduled
Tribes Orders Amendment Act, 1976 at Sr. No.44 the castes Thakur, Thakar,
Ka-Thakur, Ka-Thakar, Ma-Thakur, Ma-Thakar are entered as Scheduled
Tribes. So far as 'Thakur' community is concerned, there are no synonyms
in existence. In Presidential Order it is clearly provided 'Thakur' since 1950
in the list of Scheduled Tribes. It is not open to State Government or the
Courts or Tribunals or any other authority to modify, amend or alter the list
of Scheduled Tribes specified in the Notification issued under Clause 1 of
Article 342. The Committee, therefore, could not have rejected the Caste
Claim of the Petitioner by holding that there is different class or group of
'Thakur' as 'Non-tribal Thakur'.
21. The learned Counsel for the Petitioner placed reliance on the
Judgment of Supreme Court in the case of Jaywant Dilip Pawar Vs. State
of Maharashtra & Ors. delivered on 08.03.2017 in Civil Appeal No. 2336
of 2011 and would submit that the issue of area restriction is wholly
irrelevant. The Petitioner was required only to establish that she belongs to
the community mentioned at Sr. No.44 of Part IX of Second Schedule of the
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. In
this case Respondent No.2, however, referred to the Scheduled Castes and
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Scheduled Tribes Act, 1976 and the Bombay Reorganization Act, 1960
erroneously and contrary to the law laid down by the Supreme Court in the
case of Jaywant (supra).
22. The learned Counsel for the Petitioner placed reliance on the
Judgment delivered by a Division Bench of this Court on 26.09.2017 in Writ
Petition No. 2152 of 2007 in the case of Jaywant Dilip Pawar Vs. State of
Maharashtra & Ors. which adverted to the Judgment of Supreme Court
delivered on 08.03.2017 arising out of the said Writ Petition and would
submit that this Court declared that the Petitioner therein belongs to
"Thakur" Scheduled Tribe after adverting to the Judgment of the Supreme
Court and directed Respondent No.2 to issue Caste Validity Certificate in
favour of the Petitioner.
23. Learned Counsel for the Petitioner placed reliance on the Judgment in
the case of Palghat Jilla Thandan Samudhaya Samrakshna Samithi &
Anr. Vs. State of Kerala & Anr. (1994) 1 SCC 359 and would submit that
after considering the Presidential Order, Thakur Tribe has been categorized
as Scheduled Tribe at Sr. No.44 and thus it would not be open either for the
State or to the Court to hold that Thakur does not belong to Scheduled Tribe.
24. Learned Counsel for the Petitioner placed reliance on the Judgment of
this Court in the case of Pawan Ramkrishna Deore Vs. State of
Maharashtra & Anr. delivered on 05.07.2013 in Writ Petition No. 6176 of
2012 and in particular paragraph 8 and would submit that the Caste Scrutiny
Committee could not have solely relied upon the Affinity Test for the
purpose of determining the validity of the Caste Certificate. He relied upon
the Judgment of this Court in the case of Prakash s/o. Shrawan Deore Vs.
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Scheduled Tribe Certificate Scrutiny Committee, Nashik & Anr. delivered
on 22.02.2019 in Writ Petition No. 2363 of 2013 and in particular paragraph
13 and would submit that in the said Judgment, the Division Bench of this
Court held that the Judgment of Division Bench of this Court in the case of
Apoorva (supra) not having been brought to the notice of the Division
Bench at Aurangabad in the case of Smt. Monika d/o. Satish Thakur Vs.
The State of Maharashtra & Ors. in Writ Petition No. 10123 of 2010 dated
04.05.2018, the said Judgment in the case of Smt. Monika (supra) will have
to be held per incuriam in law.
25. The learned Counsel for the Petitioner placed reliance on the
Judgment of this Court in the case of Amol Narayan Wakkar & Anr. Vs.
State of Maharashtra & Ors. 2005(1) Mh.L.J. 798 and in particular
paragraphs 16 and 17 in support of submission that the Scrutiny Committee
was not justified in proceeding with the ensuing on the basis of alleged
socio-cultural traits and ethnical linkage to find out whether the Petitioners
belong to Thakar Scheduled Tribe when admittedly the Petitioners belong to
Thakar community.
26. The learned Counsel for the Petitioner placed reliance on the
Judgment of this Court in the case of Narendra Dhudku Thakur Vs.
Scheduled Tribe Certificate Scrutiny Committee, Pune & Ors. 2004(2)
Mh.L.J. 578 and in particular paragraph 3 and would submit that the order
of the Scrutiny Committee that the candidate belonging to 'Thakur' Caste
and not 'Thakur' under the category of Scheduled Tribe, as there was a clear
mis-classification of 'Thakur' Caste into 'Thakur' Tribe has been set aside
by the Division Bench of this Court after considering the entry at Sr. No.44
Part IX of the Second Schedule to Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1976.
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27. The learned Counsel for the Petitioner placed reliance strongly on the
Judgment of this Court in the case of Motilal s/o. Namdeo Pawar Vs.
Scheduled Tribe Certificate Scrutiny Committee, Nashik & Ors. and in
particular paragraphs 6, 7, 15 and 17 and would submit that this Court in the
identical facts has allowed the said Writ Petition by accepting the Tribal
Claim of the Petitioner and set aside the decision of the Scrutiny Committee.
28. The learned Counsel for the Petitioner placed reliance on the
Judgment of this Court in the case of Madhuri Nitin Jadhav Vs. State of
Maharashtra & Ors. 2014(3) Mh.L.J. 900 and in particular paragraphs 20
to 22, 28, 29 and 39 and would submit that once the regional restrictions are
removed, the oral as well as the material documents pertaining to other area
are irrelevant and/or cannot be considered. All the parties are bound by the
Constitutional orders and protection provided to the Scheduled Tribe in
question.
29. The learned Counsel for the Petitioner invited our attention to various
grounds raised in the Writ Petition and more particularly relating to the
material produced by the Petitioner before the Scrutiny Committee to prove
the Affinity Test by showing the (i) manner of conducting funeral in the
community of the Petitioner, (ii) the dress used in all community, (iii) about
the family deities, (iv) surnames of her relatives in whose case the
Committee had validated the Tribe Claims, (v) the traditional profession of
the community as agriculture and to collect wood, (vi) performance of the
dance i.e. Dhol Nach and Bohada Nach at the time of marriage and festivals
by consuming the liquor, (vii) marriages not being performed within the
same Kul in her community etc. The Scrutiny Committee however has
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totally overlooked those material and crucial data provided by the Petitioner
and her father during the course of personal hearing.
30. Mr. A. I. Patel, learned Addl. Govt. Pleader for the State on the other
hand supported the findings recorded in the impugned order passed by the
Scrutiny Committee and would submit that various findings of facts
recorded by the Scrutiny Committee being not perverse cannot be interfered
with by this Court in this Writ Petition filed under Article 226 of the
Constitution of India. He submits that the Petitioner had submitted the
documents about school admission and general register extract of father and
two real uncles and grand-father. However in the documents pertaining to
the father and two real uncles' caste mentioned was "Hindu Thakur" while
in the extract of grand-father the caste mentioned was "Thakur". He relied
upon the remarks of the Research Officer addressed to the Vigilance Cell
and would submit that the said remarks would clearly show that traits,
characteristic customs etc. do not match with that of "Thakur-Scheduled
Tribe Community". He submits that the Caste Claim of the Petitioner was
considered in the light of documentary as well as oral evidence and Affinity
Test in the light of the specific provisions of the Maharashtra Scheduled
Castes, Scheduled Tribes, De-Notified (Vimukta Jatis), Nomadic Tribes,
other Backward Classes and Special Backward Category (Regulation of
Issuance and Verification of Caste) Certificate Act, 2000 and more
particularly Section 4(2) thereof.
31. It is submitted by the learned Addl. G.P. that the Caste Scrutiny
Committee has considered the principles laid down by this Court and
Supreme Court in several Judgments while invalidating the Caste Claim of
the Petitioner. All these Judgments relied upon by the Scrutiny Committee
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would clearly show that there are "Thakar" and "Thakur" existing in higher
castes and merely the caste mentioned in the school certificate as Hindu-
Thakur and Thakur itself would not satisfy that she belongs to Thakur-
Scheduled Tribe and is thus rightly discarded by the Scrutiny Committee.
The onus was upon the Petitioner to substantiate the claim and character as
"Thakur-Scheduled Tribe" which the Petitioner has failed to discharge. The
Petitioner has also failed in the Affinity Test by not producing any material
and/or the evidence by the statement of her father and other members of her
family to establish her Caste Claim.
32. It is submitted that it is correct that an entry made in the school
register as 'Hindu-Thakur' 'Thakur' has been discarded by the Scrutiny
Committee. He however submits that it was for the Petitioner to prove her
Caste Claim "Thakur-Scheduled Tribe" by adducing necessary evidence.
The Caste Validity Certificate of the maternal uncle produced by the
Petitioner was of no assistance to the Petitioner. None of the Judgments
cited by the Petitioner would be of any assistance to the Petitioner in view
of the Petitioner not having adduced any evidence to prove her case. Since
there are various Thakur-Thakar communities in higher castes, entry of
Thakur-Thakar under Article 342 of the Constitution of India cannot be
construed to belong to Schedule Tribe community unless the same is
specifically proved. The Petitioner did not produce any material to falsify
the Vigilance Cell Report before the Scrutiny Committee.
REASONS AND CONCLUSION
33. The Petitioner claims to be belonging to 'Thakur Scheduled Tribe'
community and is resident of Palghar, District Thane. It is the case of the
Petitioner that in the State of Maharashtra, Thakur is included in the list of
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Scheduled Tribes at Serial No.44. With the assistance of the learned counsel
for the Petitioner we have perused those documents annexed to the Writ
Petition and also the original files of the papers and proceedings before the
Respondent No.4 Committee produced by the learned Additional Govt.
Pleader.
34. A perusal of the impugned order passed by the Scrutiny Committee
clearly indicates that the Petitioner had admittedly produced 38 documents
described in paragraph 2 of the impugned order. On 31.03.2012, the
Respondent No.2 Scrutiny Committee had invalidated the caste claim made
by the Petitioner. By an order dated 14.12.2012 passed by the Division
Bench of this court in Writ Petition No.4854 of 2012, this court quashed and
set aside the said decision dated 31.03.2012 rendered by the Scrutiny
Committee and relegated the Petitioner before the Scrutiny Committee for
fresh consideration of the matter in accordance with law keeping all
questions raised in the said writ petition open.
35. This court directed the Petitioner to appear before the Scrutiny
Committee on 26.12.2012 and directed the Scrutiny Committee to decide
the matter on the basis of the documents already on record and shall
examine on all aspects relevant for examining the claim of the Petitioner as
belonging to Scheduled Tribe Community. This Court observed that the
Committee had referred to the documents which were relevant for
considering affinity test but no analysis thereof was made in the context of
the affinity test in the impugned decision. It was further directed that the
Committee was obliged to consider the issue of affinity test keeping in mind
the affidavits relied upon by the Petitioner in support of her claim as well as
enquiry made by the Vigilance Cell in that behalf in the impugned decision.
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36. Before we deal with the impugned order dealing with those 38
documents by the Scrutiny Committee, it would be appropriate to refer to
some of the documents which had bearing on the issue of deciding the Caste
Validity Certificate by the Committee. The Petitioner was issued Caste
Certificate by the Sub-Divisional Officer, (Rev.) Dahanu Division on
08.02.2011 after considering various documents certifying that the
Petitioner belongs to Hindu - Thakur Sr.No.44 which was recognized as a
Scheduled Tribe under the Constitution (Scheduled Caste) Order, 1950 as
amended from time to time as on the date of the said certificate. It was
stated in the said certificate that the said certificate was issued on the basis
of the certificate of Scheduled Tribe issued to Subhash Pitambar
Suryawanshi, father of the Petitioner of village Palghar, Taluka Palghar of
Thane District of the State of Maharashtra who belongs to the Hindu-
Thakur-44 Tribe which is recognized as a Scheduled Tribe in the
Maharashtra State issued by the Executive Magistrate of Sindkheda of
Dhule District of the State of Maharashtra.
37. The Petitioner had produced the school leaving certificates of her
father and the grandfather, service book, caste certificate of the father issued
by the Tahsildar, caste certificate of the uncle issued by the Executive
Magistrate, caste certificate of another uncle issued by the Executive
Magistrate and caste certificate of the sister of the Petitioner issued by the
Sub-Divisional Officer of Dahanu. In the school leaving certificate of the
Petitioner dated 23.09.1999, the religion under the column 'Religion and
Caste ' it was mentioned as 'Hindu - Thakur'. In the school leaving
certificate of the father of the Petitioner Subhash Pitambar Suryawanshi
issued by the Headmaster, Zilla Parishad School, Hol, Taluka Sindkheda,
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District Dhule, the Religion and Caste was mentioned as 'Hindu Thakur'.
38. The father of the Petitioner was issued a caste certificate by the
Tahsildar, Sindkheda certifying that he was the resident of Hol, Taluka
Sindkheda, District Dhule and belongs to Thakur Caste which is recognized
as Scheduled Tribe under the Scheduled Caste and Scheduled Tribe order
(Amendment) Act, 1976. The Petitioner had also produced the first page of
the extract of the service book of the father wherein the caste of the father
was recorded as Thakur Scheduled Tribe.
39. In the school leaving certificate of the real uncles of the Petitioner i.e.
Motilal Pitambar Suryawanshi and Shantilal Pitambar Thakur who were
admitted in the school at Hol, Sindkheda issued on 19.06.1967 and
17.06.1971 respectively, their religion and caste were mentioned as Hindu-
Thakur. The Petitioner had also produced the caste certificate issued in
favour of those two uncles by the Executive Magistrate of Taluka Sindkheda
certifying that they belong to Thakur - Scheduled Tribe.
40. The Petitioner had also produced the school leaving certificate of the
great grandfather of the Petitioner i.e. Pitambar Vedu Thakur issued on
27.03.2010 showing that he was admitted in the said Zilla Parishad School,
Hol on 19.07.1941 and had left the school on 21.10.1942. In the column of
Religion and Caste, it was recorded that he belongs to Hindu Thakur. In the
certificate issued by the Executive Magistrate, Dhule in the name of the
mother of the Petitioner i.e. Meena Handu Thakur on 15.07.1980 it was
certified that she belongs to Thakur Community which was classified as
Scheduled Tribes as per Social Welfare Sports and Tourism Department's
letter No.CBC-1478/12819-D-V dated 17.04.1978 at serial No.44. The said
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certificate was issued on the strength of school leaving certificate. The
Petitioner also placed reliance on the caste validity dated 16.02.2000 issued
by the Member Secretary, Scrutiny Committee and Verification of Tribe
Claims, Nashik Division, Nashik certifying that the maternal uncle of the
Petitioner i.e. brother of the Petitioner's mother belongs to 'Thakur,
Scheduled Tribe'.
41. The Petitioner had also produced an affidavit before the Scrutiny
Committee mentioning the details of the documents as well as the letter
dated 10.04.2006 issued by the Information Officer and Desk Officer,
Adiwasi Sanshodhan va Prashikshan Sanstha, Maharashtra State, Pune in
favour of Raju Madhukar Ingle mentioning therein that as per the revised
order of 1976, there was no area restriction in case of 'Thakur-Scheduled
Tribe'.
42. A perusal of the reply dated 25.02.2012 from the Petitioner to the
Respondent No.2 Committee in respect of the Vigilance Report and the
comments of the Research Officer clearly indicates that the Petitioner had
not only referred to large number of documents once again but had also
dealt with the observations of the Research Officer stating that the
information mentioned in the statements recorded regarding the surnames of
close blood relatives, traits, living style, birth/funeral rituals, marriage
ceremonies, festivals, Panchayat system etc. do not match with that of the '
Thakur - Scheduled Tribe '.
43. The Petitioner had submitted the details in respect of all these issues
raised by the Research Officer to demonstrate that all these rituals and social
status of the entire Thakur caste would match with that of the Thakur -
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Scheduled Tribe. The Petitioner also pointed out that though most of the
Thakurs are following Hindu religion and by that they worship Hindu
deities but they mainly worship Chedya, Hirwa, Bhawani (Goddesses),
Khandoba, Waghya and Vetal. They also worship Hanuman and Gaodevi as
their deities.
44. A perusal of the impugned order dated 05.02.2013 passed by the
Scrutiny Committee indicates that in paragraph (6) of the impugned order,
the Scrutiny Committee has referred to some of the documents relied upon
by the Petitioner. Insofar as the documents at paragraph nos. 2(I), (X),
(XIII), (XV) and (XXII) are concerned, the same were copies of the caste
certificates pertaining to the applicant, her father, mother and real uncles
showing caste as Thakur, Scheduled Tribe. The Scrutiny Committee stated
that the caste certificate is always subject to scrutiny in view of section 4(2)
of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special
Backward Category (Regulation of Issuance and Verification of) Caste
Certificate Act, 2000.
45. The documents described in paragraphs 2(V), (IX), (XI), (XIX),
(XX), (XXIII), (XXIV), (XXV), (XXVI), (XXVII) and (XXVIII) are the
copies of Rajpatras, Domicile certificate, 1st page of service books, affidavit,
a copy of Gazette, a copy of letter of President, Shri Madhukarji Pichad,
President, Maharashtra Adiwasi Thakur Jamat Mandal, a copy of Note
issued to President, Maharashtra Adiwasi Thakur Jamat, a copy of G.R., a
copy of letter issued by Sarpanch, Grampanchayat, Hol Pra Be, Taluka
Sindkheda, District Dhule. It is erroneously held by the Scrutiny Committee
that all these documents were not important while determining the tribe
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claim of the applicant and could not be considered as supportive documents.
46. Though some of these documents indicated the caste of the father of
the Petitioner and other relatives of paternal side as Hindu Thakur and
though in the affidavit filed by the Petitioner various explanation on the
issue raised by the Research Officer were given including the rituals as well
as social status being followed in the Thakur Scheduled Tribe Community,
the Scrutiny Committee did not consider any of those documents and
erroneously held that all these documents were not important while
determining the tribe claim of the applicant.
47. Division Bench of this court in the order dated 14th December, 2012
while passing and setting aside the order dated 31 st March, 2012 passed by
the Scrutiny Committee in Writ Petition No.4854 of 2012 filed by the
Petitioner had made it clear that the Scrutiny Committee shall decide the
matter on the basis of the documents already on record and shall consider
the issue of affinity test keeping in mind the affidavits relied upon by the
Petitioner in support of her claim as well as enquiry made by the Vigilance
Cell in that behalf in the impugned decision. The Scrutiny Committee
ignored such affidavit on the ground that such affidavits were not important
while determining the tribe claim of the Petitioner and could not be
considered as supportive documents contrary to the directions issued by this
court.
48. Insofar as documents described in paragraph nos. 2 (II), (III), (IV),
(VI), (VII), (VIII), (XII), (XIV), (XVI) are concerned, it is stated in the
impugned order that those documents were the copies of the school records
in respect of the Petitioner and her relatives, wherein caste is recorded as
Hindu Thakur only. Nowhere on these school records mentioned as
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'Thakur, Scheduled Tribe'. It is held that the entry as Thakur cannot,
therefore result in an automatic validation of the tribe claim. Caste Thakur
and Scheduled Tribe Thakur are altogether two different entities and they
had no ethnic linkage with each other. The Scrutiny Committee rejected the
Caste Validity Certificate of the Petitioner's maternal uncle relied upon by
the Petitioner erroneously on the ground that the same was not of any use to
the Petitioner's claim.
49. Insofar as affinity test is concerned, the Scrutiny Committee has dealt
with the said issue in paragraph (7) of the impugned order. Various traits,
characteristics, customs etc. were referred by the Petitioner which were the
answers to various questions asked to the father of the Petitioner during the
oral evidence and in various affidavits. However the same are rejected on
the ground that they were not peculiar traits, characteristic, customs etc. as
observed in the genuine Thakur, Scheduled Tribe community and thus
information furnished by the Petitioner would not indicate that the Petitioner
was a true Thakur which falls at Serial No.44 in the list of Scheduled Tribes.
The Scrutiny Committee erroneously came to the conclusion that the
Petitioner had failed to succeed in the affinity test. It is held that whether
the Petitioner proves her claim as Thakur, Scheduled Tribe which was listed
at Serial No.44 in the list of Scheduled Tribes, it is not possible only to rely
upon the documentary evidence to prove such claim but such claim should
be verified by considering the traits, characteristics, customs of the
Petitioner i.e. the crucial affinity test.
50 In paragraph (9) of the impugned order, the Scrutiny Committee has
held that from the documents produced by the Petitioner and obtained by the
Vigilance Enquiry Officer, pertaining to oldest period, it has become clear
that the ancestors of the Petitioner are permanent residents of Hol, Taluka
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Sindkheda, District Dhule. Before enactment of Removal of Area
Restrictions Order, 1976 the Thakur/Thakar, Scheduled Tribes were
restricted only to following areas :-
(A) Ahmednagar District - Akola, Rahuri and Sangamner Talukas.
(B) Kolaba District - Karjat, Khalapur, Pen, Panvel and Sudhagad
Talukas and Matheran.
(C) Nashik District - Igatpuri, Nashik and Sinnar Talukas.
(D) Poona District - Ambegaon, Junnar, Khed and Maval Talukas.
(E) Thana District - Thana, Kalyan, Murbad, Bhivandi, Bassein,
Wada, Shahapur, Palghar, Jawhar and Mokhada Talukas.
It is held by the Committee that it is not the case of the Petitioner that
her forefathers had been migrated to Hol, Taluka Sindkheda, District Dhule
from any one of the aforesaid areas/Talukas. The Scrutiny Committee held
that the Petitioner was well aware about her caste status but only with an ill
intention to take the benefit of similarity in nomenclature of caste had
obtained the certificate as belonging to Thakur, Scheduled Tribe.
51. In paragraph (11) of the impugned order, it is held by the Scrutiny
Committee that it is true that a Thakur is a community which is also
included in the Scheduled Tribes list, for the State of Maharashtra under
Article 342 of the Constitution of India, it does not mean that every person
who is "Thakur" also belongs to the Scheduled Tribe Community. During
the course of the arguments, Mr.Patel, learned Additional Government
Pleader stated that the Scrutiny Committee has referred to large number of
judgments when invalidating the caste claim of the Petitioner.
52. Division Bench of this court in case of Motilal N. Pawar (supra)
delivered on 22.12.2017 considered a situation where the Petitioner claimed
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to be of 'Thakur Scheduled Tribe' and was resident of Anturli, Taluka
Bhadgaon, District Jalgaon. Since the year 1960, the father of the petitioner
had shifted to Nashik for joining a job. The caste claim of the Petitioner
therein was invalidated by the Scheduled Tribe Certificate Scrutiny
Committee. The Caste Scrutiny Committee in that matter also had held that
though in the school records of the Petitioner and his father etc. the caste
was recorded as "Hindu Thakur" and /or "Thakur", the Petitioner had failed
to prove that his caste fell in the entry appearing at Serial No. 44 i.e. Thakur,
Scheduled Tribe.
53. The Scrutiny Committee in that matter also had held that the
Petitioner therein had failed to establish his affinity and ethnic linkage
towards the "Thakur", Scheduled Tribe community appearing at serial no.
44 and thus the claim of the petitioner that he belonged to Thakur Scheduled
Tribe was not sustainable and was accordingly declared as invalid. The
Committee also rejected the case of the Petitioner therein on the ground that
the Petitioner was not an ordinary resident of the habitated area of Thakur
community and, therefore, he could not be said to be belonging to "Thakur",
scheduled tribe. The Scrutiny Committee had also rejected the case of the
Petitioner that he had established affinity test towards "Thakur", scheduled
tribe appearing at serial no. 44".
54. This court in the said judgment after referring to entry no. 44 of the
Scheduled Tribe Order as it stood in Scheduled Tribe Order of 1950 i.e.
"Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar" held that
the entry is 'Thakur' which is recognized as the Scheduled Tribe amongst
other Scheduled Tribes in the State of Maharashtra. The entry at Serial
No.44 is not the "Thakur, the scheduled tribe". The Scrutiny Committee is
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therefore required to ascertain on the basis of the documentary evidence,
whether the person is "Thakur" which is recognized as "Thakur", scheduled
tribe.
55. This Court held that it is unfathomable to believe that prior to
enactment of the Scheduled Tribe Order of 1950, any entries would have
been recorded as "Thakur scheduled tribe". This expectation of the
Committee that the entries ought to have been recorded as "Thakur,
scheduled tribe", is too much to expect, since that was never the purport of
recognition to be granted to the existing tribes as Scheduled Tribe. The
person who claims to be belonging to "Thakur Scheduled Tribe" did not
foresee that their caste is going to be recognized as the Scheduled Tribe on
the Constitution of India being brought into effect and therefore, they should
record their entry as "Thakur, Scheduled Tribe". This court recorded that it
had not come across any entry in such pre-constitutional documents also
reflecting the caste as "Thakur, Scheduled Tribe", but entry "Thakur", which
is a recognized Scheduled Tribe.
56. The Division Bench of this court accordingly held that the reasoning
adopted by the Committee was therefore, completely fallacious and such
reasoning is put-forth by the committee in cases after cases while rejecting
the pre-constitutional documents recording caste as "Thakur", on illusory
reason that the entry recorded is not "Thakur, Scheduled Tribe" but is only
"Thakur". This court in the said judgment rejected the reasoning of the
Scrutiny Committee that the entry of caste in these documents produced by
the Petitioner therein as "Thakur" but it was not mentioned as "Thakur
Scheduled Tribe". This court failed to understand the said stand of the
committee, as the entry in the Scheduled Tribe order is "Thakur" and a
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person has to establish his claim as belonging to caste "Thakur" as finds
place in the scheduled tribe order, for the first time introduced in the year
recognized 1950. The "Thakur" came to be recognized as a Scheduled
Tribe only for the first time in 1950.
57. This court noticed that even as on today, the caste certificates are not
issued as "Thakur' scheduled tribe" by the competent authority but the caste
certificates mentions the caste as "Thakur" which is recognized as
Scheduled Tribe since the caste "Thakur" finds place in the Scheduled Tribe
order. Since the Scheduled Tribe order has come into effect in the year
1950, the documents in existence prior to the inclusion of the caste
"Thakur" in the scheduled tribe order,therefore, have attained great
significance to establish the genuineness, with a specific object that the
claimant has not manipulated the entries intentionally so as to avail benefit
of being a "Thakur". It is for this reason that the pre-constitutional
documents are given weightage. The rejection of the claim of the claimant
like the petitioner on the ground that though the caste is mentioned as
"Thakur", it was not mentioned as "Thakur Scheduled Tribe", is nothing but
an endeavor to defeat the claim of the persons belonging to said caste.
58. Insofar as rejection of the caste claim by the Scrutiny Committee in
that matter on the ground that the Petitioner was not able to establish the
affinity test is concerned, this court adverted to the judgment of the Supreme
Court in case of Anand (supra) in which it has been held that while applying
the affinity test, a cautious approach has to be adopted. A few decades ago,
when the tribes were somewhat immune to the cultural development
happening around them, the affinity test could serve as a determinative
factor, however, with the migrations, modernization and contact with the
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other communities, these communities tend to develop and adopt new traits
which may not essentially match with the traditional characteristics of a
tribe and therefore, the affinity test may not be regarded as a litmus test for
establishing the link of the applicant with a scheduled tribe.
59. The Supreme Court in the said judgment also observed that the
Petitioner could not be denied benefit on the ground that his present traits do
not match his tribe's peculiar anthropoligical and ethnological traits, deity,
rituals, customs, mode of marriage, death ceremonies etc., and thus the
affinity test can only be used to corroborate the documentary evidence and
should not be the sole criteria to reject the claim.
60. This court also adverted to the judgment of the Supreme Court in the
case of Kumari Madhuri Patil and Anr. Vs. Addl. Commissioner, Tribal
Development, Thane & Ors. which laid down great emphasis on the
ethnological and anthropological traits which are peculiar to a tribe and
while constituting the committee, mandated an inclusion of Research
Officer, who had intimate knowledge in identifying the tribal community /
group of tribes or tribal communities. This court observed that the Research
Officer was not merely expected to match the traits sought by the applicant
but is expected to investigate the community's social status claim by finding
out as to what is the place of his origin, whether he has migrated from his
original place and to collect all other information by throwing light on his
social status including peculiar traits/customs etc.
61. This court in the said judgment did not accept the view of the
Scrutiny Committee holding that the Petitioner therein was not from the area
where the "Thakurs" were found in namely, 25 tahsils and 5 districts. This
court adverted to the judgment in case of Yogita Anil Sonawane vs. State
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of Maharashtra & Ors., reported in 2017 (1) Mh.L.J. 643 in which the
judgment of Division Bench of this court relied upon the Full Bench
judgment in the matter of Shilpa Vishnu Thakur (supra) in which it was held
that upon removal of the area restriction by the amending Act of 1976, the
persons belonging to a particular different Scheduled Tribe, though residing
in areas than earlier specified or migrated from the said area, can also claim
to be belonging to the same Scheduled Tribe.
62. This Court also adverted to the Articles 342 and 340 of the
Constitution of India. This court considered the statement of objects and
reasons of the Act No.108 of 1976 and held that the tribe identified as
Scheduled tribes in the Scheduled Tribes Order of 1950, as amended by the
Act of 1956, came to be recognized as "Scheduled Tribe" throughout the
said State, in contrast to they being confined to a particular area of the State.
As a result of removal of the area restrictions, the tribe or caste, if it is
recognized as a scheduled caste or scheduled tribe in the State was entitled
to avail the benefits irrespective of the places where they were normally
traced to since the tribes normally dwelled in clusters and mostly found in
certain hilly areas. However, by the amendment of 1976, the restriction of
"Thakurs" being hailing from the districts specified in 1956 Order was
completely done away with.
63. This Court after perusal of Article 342 of the Constitution of India
held that tribes or tribal communities specified by the President, in
consultation with the Governor of a State, are deemed to be scheduled tribes
in relation to that State. There is no intention to sub-divide, classify or
discriminate these tribes based on their place of residence or place of their
origin and it would rather create class of tribes within the same "tribe" in a
particular State. It is not the intention flowing from the scheme of the
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Constitution. This court also considered the fundamental right conferred on
every citizen in the form of Article 19 (d) and Article 19 (e) of the
Constitution of India, namely to move freely throughout the territory of
India and right to reside and settle in any part of the territory of India. This
court accordingly quashed and set aside the impugned order passed and
directed to forthwith issue the validity certificate in favour of the petitioner
therein, as belonging to "Thakur, Scheduled Tribe, at the earliest and in any
case, not beyond the period of four weeks from the date of the receipt of the
said order. In our view, the facts before this court in case of Motilal N.
Pawar (supra) squarely applies to the facts of this case. We are respectfully
bound by the said judgment.
64. This Court in the case of Apoorva Vinay Nichale (supra)
held that where the caste claim of the applicant has been scrutinised and
accepted and one committee has given a finding about the validity of the
caste, another committee ought not to refuse the same status to a blood
relative who applies. In this case, Scrutiny Committee ought to have
considered the caste validity certificate issued to other close blood relatives
of the petitioner while considering the tribe claim of the petitioner. The
impugned order passed by the Scrutiny Committee is in violation of
principles of law laid down by this Court in the case of Apoorva Vinay
Nichale (supra).
65. The Scrutiny Committee has already issued a caste validity
certificates in favour of relatives of the petitioner whose surnames are as
Pawar, Bhil, Ahire, Sonwane and Vaishva etc. after following due
procedure. A perusal of the order passed by the Scrutiny Committee
indicates that the Scrutiny Committee has invalidated the tribe claim of
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the petitioner solely on the ground of Affinity Test. The statement of the
father of the petitioner was recorded by the Vigilance Officer who had
submitted various information regarding primitive, traits, characteristics
and rituals, about the wedding, after birth ceremonies, rituals, followed in
tribal community as well as information given about the traditions
followed in marriage, funeral and special traits and characteristics
relating to which questions were asked to the father of the petitioner.
66. The Scrutiny Committee has totally overlooked the said part
of evidence. The Scrutiny Committee has also overlooked the documentary
evidence produced by the petitioner showing that after due enquiry,
various authorities had already issued caste certificate in favour of the
petitioner and the caste validate certificate in favour of various relatives
of the petitioner.
67. In our view once a particular community is declared as
Scheduled Tribe, then it is to be treated as Scheduled Tribe throughout the
State. The Scrutiny Committee could not have bifurcated the Thakur
community which is declared as Scheduled Tribe by inserting in serial
No.44 in the list of Scheduled Tribe in the State of Maharashtra in 1950 by
holding that "Thakur community" in the State of Maharashtra was in
existence other than "Thakur Scheduled Tribe" i.e. "Non Tribal-Thakur". In
our view, this part of the impugned order is ex facie contray to the
Presidential Orders issued in 1950 amended by the Amendment Act, 1976
by which the "Thakur" community is included in Scheduled Tribes.
68. The Hon'ble Supreme Court in the case of State of
Maharashtra Vs. Milind Khatware & Ors. (supra) has held that the
Scheduled Tribe orders must be read as it is. Since in the First Presidential
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Order, it is clearly provided that 'Thakur' since 1950 is included in the list
of Scheduled Tribes, neither State Government nor Courts or Tribunals or
any other authority to modify, amend or alter the list of Scheduled Tribes is
specified in the Notification issued under Clause 1 of Article 342. In our
view, the Scrutiny Committee thus could not have rejected the caste claim
of the petitioner by holding that there was different class or or group of
"Thakur" as "Non-tribal Thakur".
69. Supreme Court in the case of Jaywant Dilip Pawar Vs. State of
Maharashtra & Ors. (supra) has held that the petitioner was required only
to establish that she belongs to community mentioned at Sr. No.44 of Part
IX of Second Schedule of the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1976. The Scrutiny Committee thus could not
have relied upon the provisions of the Bombay Reorganization Act, 1960
while rejecting the caste claim of the petitioner on the ground of area
restriction. This Court held that if the caste claim of the candidate has been
held to be belonging to Scheduled Tribe then other close blood relatives
cannot be denied the validity certificate. The view of the Scrutiny
Committee is ex facie contrary to the principles of law laid down by the
Supreme Court in the case of Jaywant Dilip Pawar (supra).
70. Division Bench of this Court in the case of Sachinkumar Vasantrao
Wankhede Vs. State of Maharashtra (supra) has held that categorization
of "Thakur" as "Thakur, Scheduled Tribe" has come into effect after the
Constitution was adopted and, therefore, obviously there was no question of
having any entry of such caste (tribe) in the pre-constitutional era. As
regards the area restriction is concerned, the area restriction was lifted in
1976. This Court in the said judgment also adverted to the Division
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Bench of this Court in the case of Motilal Namdeo Pawar Vs. Scheduled
Tribe Certificate Scrutiny Committee & Ors. (supra) and was pleased to
set aside the order passed by the Scrutiny Committee and to direct the
Scrutiny Committee to issue a caste validity certificate i.e. Thakur,
Scheduled Tribe. The principles of law laid down by the Division Bench
of this Court in the case of Sachinkumar Vasantrao Wankhede (supra)
squarely applies to the facts of this case. The Scrutiny Committee could
not have rejected the caste claim of the Petitioner on the ground that prior to
1976 also the entry in the record produced by the Petitioner ought to show
the caste as Thakur, Schedule Tribe.
71. The Supreme Court in the case of Palaghat Zilla Thandan
Samudaya Samrakshana Samittee and Anr. Vs. State of Maharashtra &
Anr. (supra) has held that it is not for the State Government or for Court to
enquire into in evidence about the correctness of entry of Scheduled Caste in
the Scheduled Castes Order or it has to be applied as it stands until the
Scheduled Castes Order needs amendment by appropriate legislation. In our
view, rejection of caste claim of the petition by the Scrutiny Committee
is ex facie contrary to the principles of law laid down by the Supreme Court
in the case of Palaghat Zilla Thandan Samudaya Samrakshana Samittee
and Anr. (supra). The order passed by the Scrutiny Committee is
overlooking the entry No.44 ex facie illegal.
72. This Court in the case of Narendra Dhudku Thakur Vs.
Scheduled Tribe Certificate Scrutiny Committee, Pune & Ors. (supra) has
held that the order of Scrutiny Committee that the candidate belonging to
'Thakur' Caste and not 'Thakur' under the category of Scheduled Tribe
amounts to clear mis-classification of 'Thakur' Caste into 'Thakur' Tribe
has been set aside by the Division Bench of this Court in the said matter
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after considering the entry at Sr. No.44 Part IX of the Second Schedule to
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.
The said Judgment squarely applies to the facts of this case.
73. In view of the fact that various findings recorded by the
Scrutiny Committee are ex facie contrary to in utter disregard to the
principles of law laid down by the Supreme Court and this Court and also
contrary to the entry at Serial No.44 of Part IX of Second Schedule of the
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976,
this Court has ample power to set aside the said perverse findings of facts
as well as the order being perverse.
74. Learned Addl. Govt. Pleader could not distinguish the
judgments referred to and relied upon by the petitioner. The judgments
referred to and relied upon by the learned Additional Government Pleader
are totally distinguishable in the facts of this case. Even otherwise later
judgments of the Supreme Court and this Court referred aforesaid taking
different views are applicable to the facts of this case and are binding on this
Court.
75. There is no substance in the submission of the learned
Additional Government Pleader that the caste claim of the petitioner was
totally considered in the light of documentary as well as oral evidence and
Affinity Test in the light of the specific provisions of the said Act. In our
view, the impugned order dated 5th February 2013 passed by the Scrutiny
Committee invalidating the claim of the petitioner is totally perverse and
is unsustainable.
76. We, therefore, pass the following order :-
WP 2230-13
(i) The impugned order dated 5th February 2013 passed by the
respondent no.2-The Scheduled Tribe Certificate Scrutiny Committee,
Konkan Division, Thane (Exhibit-P to the petition) is hereby quashed
and set aside;
(ii) The Respondent no.2 Scrutiny Committee is hereby directed to
issue caste validity certificate in favour of the petitioner as "Thakur"
Scheduled Tribe within a period of two weeks from the date of
communication of this order;
(iii) Rule is made absolute in aforesaid terms.
(iv) There shall be no order as to costs.
[MADHAV J. JAMDAR, J.] [R. D. DHANUKA, J.]
Digitally signed
Arjun by Arjun M.
Kadam
M. Date:
2021.01.08
Kadam 12:03:35
+0530
