Pooja Balasaheb Shinde vs State Of Maharashtra Through ...
2021 Latest Caselaw 14471 Bom

                                                             WP 2997-16.doc

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

                  WRIT PETITION NO. 2997 OF 2016

Pooja Balasaheb Shinde
Age 22 Years, R/o, Indraprashtha
Flat No. 501, A-Wing, 5th Floor,
Sector No. 10, Near Beer Hospital,
Shivaji Chowk, Khanda Colony,
Taluka Panvel, Dist. Raigad                           ... Petitioner
            Vs.
1. State of Maharashtra,
Through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai-400 032.

2. Scheduled Tribe Certificate
Scrutiny committee, Pune Division,
Pune through its Member Secretary
having its office at 28, Queen's Garden,
Pune-411 001.

3. Maharashtra University of Health
Sciences Nasik, through its Registrar
having its office at Govt. Dental College,
Bldg, CST, Mumbai-1.

4. Dean, Government Dental College
and Hospital, CST, Mumbai                        ..Respondents

                              -------
Mr. R.K. Mendadkar with Mr. C. K. Bhangoji, Advocate for the
Petitioner.
Ms. Kavita Solunke, AGP for the Respondents No. 1, 2 and 4.
Mr. Rajshekhar Govilkar, Advocate for Respondent No.3.
                             ---------

                        CORAM        :       R.D. DHANUKA &
                                             ABHAY AHUJA, JJ.

                        DATE         :       5TH OCTOBER 2021




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ORAL JUDGMENT:-(PER ABHAY AHUJA, J)

1. Rule. Rule made returnable forthwith. Ms. Solunke, the

learned AGP waives service for Respondents No.1, 2 and 4. Mr.

Govilkar waives service for Respondent No.3.

2. By consent of counsel for the parties, Writ Petition was

heard finally on 30th September 2021. Today it has been listed for

orders.

3. By this petition filed under Article 226 of the Constitution

of India, petitioner who is claiming to belong to Thakar,

Scheduled tribe, is aggrieved that his tribe claim has been

invalidated by the respondent no. 2-Committee for the second

time vide impugned order dated 21 st December 2015. Petitioner

had initially filed writ petition no. 2562 of 2014 challenging the

earlier order dated 30th January 2014, when this Court had

remanded the matter back to the Committee on 12th March 2014

with further directions to reconsider the case in accordance with

the law laid down in the case of Madhuri Nitin Jadhav and Ors

Vs. State of Maharashtra and Ors. (2014(4) BCR 753). However,

petitioner is aggrieved that even on remand, the respondent

no.2-Committee has passed the almost same order, impugned in

this petition.

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4. Learned counsel for petitioner, Mr. Mendadkar, submits

that the second respondent-Committee has invalidated

petitioner's tribe claim on principally the following three

grounds:- (i) the documents submitted by Enquiry Officer, in

relation to blood relatives of petitioner shows caste as Thakar,

Maratha and Marathi before 1950, (ii) the caste validity

certificates issued to cousin uncles and cousin brothers of

petitioner are based on legal position existing then, which does

not apply to changed circumstances, and (iii) that petitioner had

failed the affinity test and she did not come from restricted area.

5. Learned counsel submits that there are several pre-

constitutional documents including one of the year 1923, which

has been furnished as documentary evidence, in support of

petitioner's tribe claim. He submits that the Maratha entries are

not older than the Thakar entry of 1923, that Marathi is not a

caste. He vehemently submits that the second respondent-

Committee has itself validated tribe claims of her two cousins

from paternal side on almost the same documentary evidence,

which is evident from enquiry report dated 17 th May 2019 of

Nilesh Wamanrao Shinde which is annexed to the interim

application. It is submitted that Nilesh was granted validity

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certificate by the respondent no.2 - Committee on 15 th June

2020. He submits that another cousin viz. Ramchandra

Wamanrao Shinde has also been granted caste validity certificate

on 12th June 2020. Learned counsel submits that in view of

settled law once caste claim of a relative has been validated then

the caste claim of the applicant ought to be allowed without

insisting on any other proof. Learned counsel submits that on

the same set of facts and evidence, the Committee could not have

taken a different view.

6. With respect to the issue of failed affinity test, learned

counsel submits that affinity test is not a litmus test and it may

be used to corroborate the documentary evidence, but cannot be

a sole criteria to reject a claim.

7. Mr. Mendadkar, learned counsel for petitioner, has

laboriously taken us through the impugned order. He submits

that the findings of the Committee suggest a complete non

application of mind despite clear directions by this Court in the

earlier round of litigation due to a stubborn mind set to reject

petitioner's claim, come what may. He refers to paragraph 15 (at

page 17 of the petition) with respect to the rejection of evidence

in respect of the cousin uncles and cousin brothers to submit that

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those certificates of validity have been issued after the Supreme

Court decision in the case of Chairman and Managing Director,

Food Corporation of India Vs. Jagdish Balram Bahira and Ors.

(2017) 8 SCC 670, i.e. after 18th December 2001 and therefore, to

say that the circumstances and the legal position has changed

reflects a complete non application of mind apart from being

general and vague.

8. Learned counsel for petitioner has relied upon and taken

us through the following decisions in support of his contentions:-

i. Madhuri Nitin Jadhav and Ors. Vs. State of Maharashtra and Ors. 2014 (4) Bom. C. R. 753 ii. Raju Ramsingh Vasave Vs. Mahesh Deorao Bhivapurkar and Ors. (2008) 9 SCC 54

iii. Anita Atmaram Gaikwad Vs. State of Maharashtra and Ors. In Civil Appeal No. 3881/13 arising out of SLP (C) 23081 of 2010

iv. Apoorva Vinay Nichale Vs. Divisional Caste Certificate Scrutiny Committee No. 1 and Ors. 2010 (6) Mh. L. J.

v. Anand Vs. Committee for Scrutiny and Verification of Tribe Claims and Ors. (2012) 1 SCC 113

vi. Vaibhav Dharma Pawar & Ors. Vs. State of Maharashtra in Writ Petition No. 8618 of 2019

vii. Subodh Digambar Donge Vs. State of Maharashtra and Ors. 2020 (1) Bom. C. R. 210.

viii. Shubham S. Suryawanshi Vs. State of Maharashtra and Ors. 2021 (3) Bom C. R. 671.

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9.        Learned   counsel    submits   that   the   Committee         has

completely ignored the order passed in the case of petitioner in

the earlier round of litigation and therefore, interference of this

Court is required.

10. Mr. Mendadkar has also submitted copy of vigilance cell

report as well as copy of certificate of validity of Shri Nilesh

Wamanrao Shinde as belonging to Thakar (44), Schedule Tribe

along with and affidavit of Shri Nilesh Wamanrao Shinde,

submitting the genealogical tree, the certificate of validity of

Ramchandra Wamanrao Shinde.

11. Learned counsel for the petitioner, submits that in the light

of the aforesaid submissions and the principles laid down in the

aforesaid decisions, this petition may be allowed in terms of

prayer clauses (a) and (b).

12. Mr. Mendadkar has, during the course of his arguments

submitted across the bar, two coloured charts containing the

genealogical tree with the common ancestor as "Udbaba" having

two branches: one of Babaji and the other of Abaji. The tree which

emanates from the Babaji branch is in the first chart and the tree

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that emanates from Udbaba branch is in the second chart. Since

all the relatives named in the various sub branches are

emanating from the two main branches of the common ancestor

Udbaba, it can be said that they are in the common blood line and

therefore, "relative" as defined under Rule 2(h) of the

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified

Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes

and Special Backward Categories (Regulation of Issuance and

Verification of) Caste Certificate Rule, 2012 (the "Caste

Certificate Rules").

13. What we observe from the two charts handed over to us

and as explained very meticulously by Mr. Mendadkar that the

relatives highlighted in yellow in both the charts are the ones

who are holders of Thakar caste validity certificate. From this

exposition it appears to us that petitioner viz. Pooja is a relative

of Nilesh, Ramchandra/Amol, Anil, Bhausaheb from the Babaji

side of the tree and a relative of Dnyaneshwar, Ramesh, Rahul,

Rupesh, Nandakumar from the Aabaji branch of the common

ancestor Udbaba, which are holders of caste validity certificates.

If we were to apply the principles set out by this Court in the case

of Apoorva Vinay Nichale Vs. Divisional Caste Certificate

Scrutiny Committee No. 1 and Ors. 2010 (6) Mh. L. J. as well as

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Anand Vs. Committee for Scrutiny and Verification of Tribe

Claims and Ors. (2012) 1 SCC 113, relied upon by the learned

counsel for the petitioner, it would emerge that petitioner being a

blood relative of these caste validity certificate holders, would

also be entitled to the caste validity certificate as Thakar-

Scheduled Tribe.

14. With respect to the failed affinity test, we agree with by the

learned counsel for the petitioner that the said test is not a

litmus test and cannot be used as a sole criteria to reject the tribe

claim, especially in face of the caste validity certificates issued in

favour of the relatives.

15. As far as the issue of area restriction is concerned, firstly

area restriction was lifted in 1976. Further, in view of the

Supreme Court decision holding in the case of Jayawant Dilip

Pawar vs State of Maharashtra in Civil Appeal No. 2336 of 2011

dated 8th March 2017 that once the petitioner has established

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, the scrutiny committee

cannot resort to the ground of area restriction to reject the

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petitioner's claim. In our view the Scrutiny Committee could not

have rejected the caste claim on this ground.

16. When we called upon the learned AGP to address the Court

in response to the submissions made by Mr. Mendadkar, the

learned AGP, on instructions, submitted that if the

aforementioned documents tendered by learned counsel for the

petitioner across the bar including the charts containing the

names of caste validity certificate holders are allowed to be

verified by the respondents, the newly appointed caste scrutiny

committee would also be inclined to consider and grant the caste

validity certificate in favour of petitioner in line with the

principles laid down in the decisions referred to above. She

submits that these being matters of fact it could be best left to the

scrutiny committee to decide the issue rather than burdening

this court with that exercise.

17. Having heard learned counsel for petitioner and also being

conscious that this is the second round of the litigation but in

view of the fair submission made by the learned AGP, we feel that

if the documents in respect of the relatives indicated in the chart

tendered across the bar are to be verified by the respondents,

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there would be no reason as to why the certificate of caste

validity would not be granted to petitioner.

18. With the above observations we quash and set aside the

impugned order dated 21st December 2015 and remand the

matter to the Schedule Tribe Certificate Scrutiny Committee at

Pune to verify the caste validity certificates of the relatives

highlighted in yellow in the genealogical tree in the two charts

tendered across the bar (marked "X" and "Y" for identification)

and to grant caste validity certificate to petitioner within a

period of two weeks from today.

19. Rule is made absolute in the above terms. Writ petition is

disposed with no order as to costs.

20. Parties to act upon an authenticated copy of this order.

           ( ABHAY AHUJA, J. )                      ( R.D. DHANUKA, J. )


         Digitally
         signed by
         NIKITA
NIKITA   YOGESH
YOGESH   GADGIL
         Date:
GADGIL   2021.10.05
         17:21:54
         +0530




           Nikita Gadgil                                                   10 of 10