Shubham Sham Salunke vs The State Of Maharashtra And ...
2021 Latest Caselaw 3861 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO. 6718 OF 2020

 Shubham S/o Sham Salunke
 Age - 22 years, Occu.: Student,
 R/o. 6/5-L/4, Ramnagar,
 Vitthal Chowk, N-2, CIDCO,
 Aurangabad, Tq. & Dist. Auranagabad.                 ... Petitioner.

          Versus

 1. The State of Maharashtra
    Department of Tribal Development
    Mantralaya, Mumbai -32.
    Through its Secretary.

 2. The Scheduled Tribe Certificate
    Scrutiny Committee,
    Aurangabad Division, Aurangabad,
    Through its Member Secretary.

 3. College of Agriculture,
    Run by Chhatrapati Shahu Maharaj
    Shikshan Sanstha, Kanchanwadi,
    Paithan Road, Aurangabad,
    Tq. & Dist. Aurangabad,
    Through its Principal.

 4. Vasantrao Naik Marathwada Krishi
    Vidyapeeth, Parbhani,
    Tq. & Dist. Parbhani,
    Through its Registrar.                            ... Respondents.
                                     ....
 Mr. Sushant C. Yeramwar, Advocate for the Petitioner.
 Mr. P.S. Patil, Addl. Government Pleader for Respondent Nos.1 and 2.
 Mr. S.B. Kakde, Advocate for Respondent No.3.
 Mr. B.A. Shinde, Advocate for Respondent No.4.
                                   ....

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                               CORAM : S.V. GANGAPURWALA AND
                                       SHRIKANT D. KULKARNI, JJ.

Closed for Judgment on : 24.02.2021

Judgment Pronounced on : 02.03.2021

JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-

1. Rule. Rule made returnable forthwith. With the consent of

learned counsel for both the sides, heard finally at admission stage.

2. By invoking the writ jurisdiction under Article 226 of the

Constitution of India, the petitioner is challenging the impugned

order passed by respondent No.2 / The Scheduled Tribe Certificate

Scrutiny Committee, Aurangabad Division, Aurangabad (hereinafter

referred to as the "committee" for the sake of convenience) dated

24.02.2020, thereby invalidating caste claim of the petitioner

belonging to "Thakur" Scheduled Tribe community. The Committee

has referred the case to the vigilance officer for enquiry. The vigilance

officer has submitted its report to the committee. The petitioner has

filed his reply to the show cause notice issued by the committee. The

committee has invalidated the tribe claim of the petitioner. The

petitioner has completed his B.Sc. (Agri.) Course, but did not get a

degree certificate for want of certificate of validity. In that

background, the petitioner is before us.

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3. Heard Mr. S.C. Yeramwar, learned counsel for the petitioner,

Mr. P.S. Patil, learned Addl. G.P. for respondent Nos.1 and 2. Mr.

S.B.Kakde, learned counsel for respondent No.3 and Mr. B.A. Shinde,

learned counsel for respondent No.4.

4. Perused the impugned order and papers annexed with the

petition.

5. The tribe claim of the petitioner came to be invalidated by

the committee on following three grounds:

(i) The petitioner has failed to prove his tribe claim on the basis of documentary evidence.

(ii) The petitioner is not entitled to get benefit of the tribe validity certificates issued to the blood relatives in his family.

(iii) The petitioner has failed to prove the affinity test.

6. Mr. Yeramwar, learned counsel vehemently submitted that

the petitioner has produced documentary evidence in support of his

tribe claim right from the year 1959, thereby establishing that the

family of the petitioner belongs to "Thakur" Scheduled Tribe. The

committee has not considered the old record in a proper perspective

and discarded the same simply relying upon alleged three contra

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entries. The said three contra entries were the subject matter of the

caste validity proceeding of the petitioner's uncle Mr. Appasaheb

Pandit Salunke. The petitioner's father Mr. Sham Pandit Salunke and

uncle Mr. Appasaheb Pandit Salunke are issued with the validity

certificates. The genealogy is not disputed by the committee. As such,

the committee ought to have given the benefit of caste certificates of

petitioner's uncle and father in view of the decision of this Court 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.

Mr. Yeramwar further submitted that the committee has

observed while invalidating the caste claim of the petitioner that

petitioner's family is not migrated from the tribal area. The said

observation is incorrect in view of "The Scheduled Castes and

Scheduled Tribes Orders (Amendment) Act, 1976". Mr. Yeramwar

submitted that the committee has also committed an error in

recording the finding that the petitioner has failed to prove the

affinity test, by placing reliance on the decision of the Apex Court in

case of Anand Vs. Committee for Scrutiny and Verification of Tribe

Claim and others reported in (2012) 1 SCC 113. Mr. Yeramwar

submitted that the affinity test is not a litmus test. He submitted that

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the impugned order passed by the committee is bad in law and liable

to be quashed and set aside.

7. Per contra, Mr. P. S. Patil, learned Addl. G.P. for respondent

Nos. 1 and 2 / State, argued that the committee has taken into

consideration the old documentary evidence produced by the

petitioner. The committee has considered the old documentary

evidence, vigilance report and the report of the Research officer and

arrived at conclusion that the petitioner has failed to prove his tribe

claim as "Thakur" Scheduled Tribe. He submitted that there are

contra entries pertaining to the petitioner's cousin grandfather,

wherein his caste is recorded as "Maratha" in the old register dated

09.09.1959. Mr. Patil further invited our attention to the entry of the

petitioner's grandfather Mr. Pandit Laxman Thakre and sister of

petitioner's grandfather Ku. Ashabai Laxman Salunke and submitted

that their caste has been recorded as "Thakar". Mr. Patil submitted

that the findings recorded by the committee are well reasoned. The

decision taken 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.

8. Mr. S.B. Kakde, Advocate for Respondent No.3. and Mr. B.A.

Shinde, Advocate for Respondent No.4 supported the argument

advanced by the learned Addl. G.P.

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9. We have considered the arguments advanced by learned

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

appearing for respondent Nos.3 and 4.

10. On making scrutiny of the impugned order, vigilance report

and other papers, it is noticed by us that the petitioner has placed on

record the documentary evidence right from the year 1959. So far as

the contra entries relied upon by the committee and pointed out by

the learned Addl. G.P. are concerned, those contra entries were the

subject matter while granting validity certificate in favour of

petitioner's uncle Mr. Appsaheb Pandit Salunke. It is evident from the

record that the petitioner's father Mr. Sham Pandit Salune and

petitioner's uncle Mr. Appasaheb Pandit Salunke are issued with the

validity certificates. Those validity certificates still hold the field. It is

observed by the committee that those validity holders have

suppressed the contra entries while obtaining the validity certificates

from the committee. The committee has taken a decision to issue

show cause notice to the validity holders regarding cancellation of

their validity certificates. Be that as it may, as on today the validity

certificates issued in favour of the petitioner's father and uncle still

hold the field. In view of decision of this Court in case of Apoorva

(supra), the petitioner is entitled to get the benefit of the tribe

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validity certificates issued in favour of his father and uncle when there

is no legal impediment and no dispute about the relationship.

Moreover, entry of "Thakar" in grandfather's old register and

entry as "Maratha" in cousin grandfather's school record while taking

the admission in the school on 09.09.1959, was the subject matter

while issuing the caste validity certificate in favour of petitioner's

uncle and therefore it can not be said to be suppression of the fact

from the committee. Therefore, we do not agree with the observations

made by the committee in this regarded. Except these two entries all

old entries in the documents are consistent with the tribe claim of the

petitioner.

11. Now coming to the another finding recorded by the

committee regarding failure to prove the affinity test. The

genuineness of a caste claim needs to be considered not only by way

of detail examination of the documents but also on the affinity test,

which would include the anthropological and ethnological traits etc.

of the petitioner. The affinity test is not a litmus test. We would like

to place reliance in case of Anand (supra).

12. The committee has also observed that the family of the

petitioner is not migrated from tribal area. That observation made by

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the committee is erroneous. The Parliament has enacted "The

Scheduled Castes and Scheduled Tribes Orders (Amendment) Act,

1976". It is precisely to overcome 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

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 the petitioner's family are certainly erroneous.

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

are found erroneous. The committee has not properly considered the

old documents as well as the validity certificates issued to the

petitioner's father and real uncle after conducting the vigilance

enquiry. The impugned order passed by the committee invalidating

tribe claim of the petitioner needs to be quashed and set aside. The

petitioner is entitled to get the tribe validity certificate. With these

reasons, we conclude and proceed to pass the following order.

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ORDER

(i) The impugned order passed by respondent No.2 / Scrutiny Committee, Aurangabad Division, Aurangabad dated 24.02.2020 is hereby quashed and set aside.

(ii) Respondent No.2 / Scrutiny Committee, Aurangabad shall issue validity certificate to the petitioner of being a member of "Thakur Scheduled Tribe" forthwith.

(iii) The said validity certificate shall be subject to the decision that would be taken by the committee in the proceedings re-opened of the validity holders relied by the petitioner.

  (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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