Bombay High Court
Amey Mahendrasing Thakur vs State Of Maharashtra Through Its ... on 21 October, 2021
Bench: R.D. Dhanuka, Abhay Ahuja
1 Judgment-WP 9322-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO.9322 OF 2018
Amey Mahendrasing Thakur
Aged years, Occ. : Student
Residing at 603, Namaskar Apartment,
Adlaji Road, Charai, Thane (W),
Dist. Thane. ... Petitioner
Vs.
1. State of Maharashtra
Through its Secretary,
Higher Education Department,
Mantralaya, Mumbai - 400 032.
2. Scheduled Tribe Certificate
Scrutiny Committee, Nandurbar Division,
Nandurbar through its Joint Commissioner
& Vice Chairman having its office at
Nandurbar.
3. Commissioner & Competent Authority,
State CET Cell, Mumbai having its office
at New Excelsior Build, A.K. Nayak Marg,
Fort, Mumbai - 400 001.
4. Ramrao Adik Education Society's
Ramrao Adik Institute of Technology
Navi Mumbai. ... Respondents
-------
Mr.R.K. Mendadkar alongwith Mr. Tanaji Jadhav, advocates for
Petitioner.
Ms. Kavita N. Solunke, AGP for Respondents No.1 to 3-State.
-------
Mugdha/Nikita Gadgil 1 of 21
2 Judgment-WP 9322-18.odt
CORAM : R.D. DHANUKA AND
ABHAY AHUJA, JJ.
RESERVED ON : 1ST OCTOBER, 2021.
PRONOUNCED ON : 21ST OCTOBER, 2021.
JUDGMENT : (PER ABHAY AHUJA, J.)
1. Rule. Rule made returnable forthwith. Ms. Solunke, the
learned AGP for Respondents No.1 to 3-State waives service.
2. By consent of counsel for the parties, Writ Petition is heard
finally.
3. By this Writ Petition filed under Article 226 of the
Constitution of India, Petitioner is challenging the order dated 10 th
August, 2018 passed by Respondent No.2-Scheduled Tribe
Certificate Scrutiny Committee, Nandurbar, invalidating the caste
claim of Petitioner, as belonging to Thakur, Scheduled Tribe.
4. Mr. Mendadkar, the learned counsel for Petitioner submits
that Petitioner has submitted various documents including 17 caste
validity certificates of Kum. Mrudula Prakash Bhamare, Shri
Ashish Prakash Bhamare, Kum Kamini Kantilal Bhamare, Shri
Mugdha/Nikita Gadgil 2 of 21
3 Judgment-WP 9322-18.odt
Rohan Arvind Bhamare, Shri Harshal Kumar Arvind Bhamare,
Shri Shashank Prakash Bhamare, Prakash Hiralal Bhamare,
([petitioner's maternal uncle; certificate issued pursuant to order
dated 27th July 2017 in Writ Petition No. 6972 of 2014 by the
Aurangabad Bench of this court (page 56, Exhibit B)), Suvarnalata
Gulab Thakur, Bharat Gulabsingh Thakur, Nita Divan Bhamare,
Virendra Gulabsingh Thakur, Amol Gulabsingh Thakur, pre-
constitutional documents in relation to blood relatives from
paternal side as well as school leaving certificates, caste certificates
and other documents belonging to Thakur Scheduled Tribe as
Exhibit B (Colly.) to the petition. Admittedly, these documents are
also referred to on page 20 of the petition as portion of the
impugned order. Also the genealogical tree showing common
ancestor as "Gobaji" is said to have been submitted. He submits that
despite such stark and clinching evidence of caste validity
certificates in favour of relatives and pertinently the caste validity
certificate dated 29th January, 2001 of Petitioner's real uncle
Yogendrasinh Madhukar Thakur, which is at Page 54 of the Petition
as well in support of petitioner's claim to Thakur, Scheduled Tribe,
Respondent No.2 has invalidated the claim of Petitioner on the
ground of failure of affinity test, vigilance cell's report suggesting
Mugdha/Nikita Gadgil 3 of 21
4 Judgment-WP 9322-18.odt
petitioner's mother's grandfather and petitioner's mother's blood
relative as belonging to "Bhat"caste, purportedly known to be non-
tribal.
5. On the other hand, Ms. Solunke, the learned AGP for the State
vehemently opposes the claims made on behalf of Petitioner and
relies upon the affidavit in reply dated 1st October, 2021 filed on
behalf of the Respondents.
6. Referring to the affidavit in reply, learned AGP submits that
apart from the Scheduled Tribe category in Entry 44 of the
Constitution (Scheduled Tribes) Order, 1950 showing the entry of
Thakurs, there are Thakurs in Maharashtra, who are in the non-
tribal category. In support of this contention, she further submitted
that the oldest document in the family of Petitioner is the School
Admission Register Extract of Hiralal Namdev Thakur (paternal
cousin cousin grandfather of Petitioner) issued by MNC School No.2,
Dhule, which is dated 4th March, 1929, wherein the caste is
recorded as "Rajput Thakur" and that this record as observed in the
impugned order was suppressed by Petitioner and all the validity
holders of applicant's family. She further submits that the
Mugdha/Nikita Gadgil 4 of 21
5 Judgment-WP 9322-18.odt
statement recorded by the Vigilance Cell also indicates that the
marriages in the family of Petitioner are solemnised within their
own caste and that Petitioner's relatives by marriage, namely,
Bhatu Bapu Thakur (petitioner's mother's grandfather) and Arjun
Jugaru Thakur (petitioner's mother's blood relative) of the years
1908 and 1910 respectively shows their caste as "Bhat" and that
this reflects the affinity of petitioner's family with the Bhat-caste
people, who are not tribal. The learned AGP submits that this is
simply an attempt by non-tribal communities to get constitutional
benefits meant for Scheduled Tribes. She also refers to the
Government Circulars dated 9th October, 1954 and 31st July, 1957 to
submit that Bhats, Bramhabhat and Thakurs also fall under non-
tribal category. She thereby relies upon and supports the impugned
order of the Scrutiny Committee in support of her contentions. She
also relies upon the following decisions (i) Murlidhar Ramakrishna
Gathe vs. State of Maharashtra, 2007 (3) Mh.L.J. 308 and order of
Hon'ble Supreme Court dated 27th March 2018 in Civil Appeal No.
7199/2009, (ii) Pournima Suryakant Pawar Vs. State of
Maharashtra, (2013) 3 SCC 690, (iii) State of Maharashtra Vs. Ravi
Prakash Babulalsingh Parmar, (2007) 1 SCC 80 and (iv) Shilpa
Vishnu Thakur Vs. State of Maharashtra, 2009 (3) Mh. L. J. 995 .
Mugdha/Nikita Gadgil 5 of 21
6 Judgment-WP 9322-18.odt
Referring to the Full Bench decision of this Court in the case of
Shilpa Vishnu Thakur Vs. State of Maharashtra & Ors.(supra),
learned AGP submitted that the 'affinity test' is an integral part of
process of verification of tribe claim and the Committee has to apply
the said test while examining such claims. She, however, submits
that since the said Full Bench decision has been challenged in the
Supreme Court with the lead matter bearing Special Leave Petition
(Civil) No.24894 of 2009 (Maharashtra Adiwasi Thakur Jamat
Swarakshan Samiti Vs. State of Maharashtra & Ors.) and connected
48 matters which are scheduled to be heard before the Apex Court
on 16th November, 2021, the hearing of the present matter may be
deferred till the outcome of the group matters in the Supreme
Court. The learned AGP also submits that the decision in the case of
Shubham S. Suryavanshi Vs. State of Maharashtra, 2021 (3) Bom
C.R. 671 cited on behalf of Petitioner is clearly distinguishable and
not applicable in the case of petitioner.
7. Learned AGP submits that the findings recorded by the
Scrutiny Committee in the impugned order have clearly dealt with
the traits, characteristics and customs given by Petitioner and after
considering the same, the Committee has rejected the claims as
Mugdha/Nikita Gadgil 6 of 21
7 Judgment-WP 9322-18.odt
Petitioner has failed to establish socio-cultural affinity and ethnic
linkage.
8. With respect to the validity certificates of paternal blood
relatives relied upon by Petitioner, learned AGP submits that the
Committee has rightly concluded that the ratio of those validity
holders is not applicable and the same cannot be treated as
conclusive proof of the tribe claim of Petitioner.
9. She further submits that the validity certificate in the name of
Petitioner's uncle, namely, Yogendra Madhukar Thakur has been
issued in the year 2001, but while obtaining those validity orders,
Petitioner has suppressed the oldest documentary evidence
showing caste entry "Rajput Thakur" of paternal blood relative and
also there is documentary evidence showing caste entry of "Bhat" of
maternal blood relatives of Petitioner and, therefore, the claim of
Petitioner was rightly rejected. She submits that in this view of the
matter, Petition ought to be rejected.
10. We have heard Mendadkar, the learned counsel for Petitioner
and Ms. Solunke, learned AGP for Respondents No.1 to 3-State and
Mugdha/Nikita Gadgil 7 of 21
8 Judgment-WP 9322-18.odt
with their able assistance, we have perused the papers and
proceedings as well as the original file produced by learned AGP in
the matter.
11. This is a case where Petitioner is challenging the rejection of
his claim by the Scrutiny Committee, which is based on the caste
certificate dated 21st August, 2012 issued by the Deputy Collector,
Land Acquisition (MIP), Dhule. After verification of documents
submitted by Petitioner, the Scrutiny Committee handed over the
case to the Vigilance Cell for school and home inquiry. The Vigilance
Cell submitted its report after which Petitioner was called upon to
submit his report and after hearing Petitioner on the issue of
cultural and social affinity, the claim of Petitioner to Thakur,
Scheduled Tribe was rejected as the Scrutiny Committee concluded
that Petitioner and his family members have failed to show cultural
and social affinity towards Thakur, Scheduled Tribe.
12. For the sake of convenience, it would be first pertinent to set
out the genealogical tree of the petitioner showing common ancestor
as Gobaji:-
Mugdha/Nikita Gadgil 8 of 21
9 Judgment-WP 9322-18.odt
Xkkscth
eqGiq#"k
k
¼xksfoan½
k
&&&&&&&&&&&&&&&&&&&&&&&&&
k k k
k
Hkkukth rkukth nxMw
k k k
k dkf'kjke lnk
ukenso k&&&&&&k k&&&k&&&k&&&&k
&&&&&&&&&&&&&&&& fHkdk rqGf'kjke vkuanflax e/kqdj xqykcflax iqaMfunzk
k k k k k ¼Hkkuqnkl½
xksj[k fgjkyky ek/ko fnok.k !&&&k k
k k k egsanz ;ksxsnz k
vjfoan !&&&&! !&&&&! k ¼oS/krk½ k
k dkarhyky izdk'k&lqo.kZyrk ¼iRuh½ txUukFk ¼furk½ ves; &&&&&&&&&&&
&&&&&&& ! ! ¼oS/krk½ ¼oS/krk½ ¼mesnokj½ Hkjr fojasanz veksy
jksgu g"kZydqekj ! ! ! ¼oS/krk½ ¼oS/krk½ ¼oS/krk½
¼oS/krk½ ¼oS/krk½ !
&&&&&&&&&& &&&&&&&&&&&&&
! ! ! ! ! ! ! !
t;arhyky /kuat; dkfeuh lafxrk ! psru fo'kky f/kjt
¼oS/krk½ ¼oS/krk½ ¼oS/krk½ ¼oS/krk½ ! ¼mesnokj½ ¼mesnokj½ ¼mesnokj½
&&&&&&&&&&&&
! ! !
'k'kad vkf'k"k e`nqyk
¼oS/krk½ ¼oS/krk½ ¼oS/krk½
Mugdha/Nikita Gadgil 9 of 21
10 Judgment-WP 9322-18.odt
13. The above genealogical tree is not disputed by the Respondent
nor the Caste Scrutiny Committee has found any fault with it. What we
observe from the above is that the seventeen caste validity certificate
holders all come from the common ancestor Gobaji and are as such the
relatives of Petitioner. Shri Yogendrasinh Madhukar Thakur is
undisputedly Petitioner's real uncle and holder of caste validity
certificate. The definition of "relative" as contained in Section 2 (h) of
the the Maharashtra Scheduled Caste, De-notified Tribes (Vimukta
Jatis), Nomadic Tribes, Other Backward Classes and Special Backward
Category (Regulation of Issuance and Verification of ) Caste Certificate
Rules, 2012, includes a "blood relative" from the paternal side. In our
view, coming from the common ancestor Gobaji, Petitioner is coming in
the bloodline of a common ancestor and is as such a blood relative with
all the 17 caste validity certificate holders including Petitioner's real
uncle, Shri Yogendrasinh Madhukar Thakur. This Court in the case of
Apoorva Nichale v. Divisional Caste Certificate Scrutiny Committee
No.1 & Ors. (2011) (2) Bom C.R. 824) has clearly held that where the
caste claim of an applicant has been scrutinized and accepted by a
committee validating the caste claim, another committee ought not to
refuse the same status to another blood relative who applies for a caste
validity certificate. In this context the following paragraphs of
Mugdha/Nikita Gadgil 10 of 21
11 Judgment-WP 9322-18.odt
Apoorva Nichale (Supra) are quoted as under:
"4. We have considered the matter and we are of the view
that the petitioner's caste claim that she belongs to Kanjar
Bhat- Nomadic Tribe ought to have been accepted by the
Committee merely on the basis that identical caste claim of
her sister that she belongs to Kanjar Bhat has been
allowed by the Committee, even apart from the
Government Resolution. We are of the opinion that the
guidelines provided by the said Govt. Resolution are sound
and based on sound principles. It would indeed be chaotic
otherwise. If the relationship by blood is established or not
doubted, and one such relative has been confirmed as
belonging to a particular caste, there is no reason why
public time or money should be spent in the committee
testing the same evidence and making the same
conclusion unless of course the Committee finds on the
evidence that the validity of the certificate of such relation
has been obtained by fraud.
5. The Division Bench of this Court in Mahesh Pralhadrao
Lad v. State of Maharashtra) 1, 2009 (Supp) -Bom. C. R.
898 (A. B.): 2009(2) Mh.L.J. 90 has observed that in the
absence of any power under the Rules conferred on the
Government to issue a Govt. Resolution, the Govt.
Resolution cannot be said to be binding on the committee
nor the committee in exercise of its jurisdiction is bound to
follow the same. The Division Bench further observed that
the Government Resolution may be considered in the
context of Rule 12 of the Rules and if the committee while
exercising jurisdiction is satisfied that the caste validity
certificate issued to a blood relative is genuine then
instead of calling the Vigilance Cell Report it may proceed
to issue the caste validity certificate. We are in respectful
agreement with the view taken by the Division Bench. We
would further add that the committee would be entitled to
refuse to follow the caste validity certificate granted to a
blood relative if it appears to the committee that the
earlier caste certificate has been scrutinized by a
Committee without jurisdiction or the validity order is
obtained by committing fraud on the Committee."
Mugdha/Nikita Gadgil 11 of 21
12 Judgment-WP 9322-18.odt
14. Also the decision of this Court in the case of Shubham
Suryavanshi (supra) (where one of us R.D.Dhanuka J. was a member)
is on the point. Paragraphs 42 to 50 are relevant and are usefully
quoted as under. :-
"42. 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. (emphasis supplied) In this case,
Scrutiny Committee ought to have considered the caste
validity certificate issued to other close blood relatives of
the petitioner after due enquiry 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).
43. The Scrutiny Committee has already issued a caste
validity certificate in favour of relatives of the petitioner
whose surnames are Pawar, Bhil, Ahire, Sonwane and
Vaishva etc. after following due procedure. The Scrutiny
Committee thus ought to have issued the caste validity
certificate in favour of the petitioner.
44. A perusal of the order passed by the Scrutiny
Committee indicates that the Scrutiny Committee has
invalidated the tribe claim of the petitioner solely on the
ground of Affinity Test. The statement of the grand-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
Mugdha/Nikita Gadgil 12 of 21
13 Judgment-WP 9322-18.odt
petitioner.
45. 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 validity certificate in favour of
various relatives of the petitioner.
46. 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". 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 was included in
Scheduled Tribes.
47. 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 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 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".
48. The 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
Mugdha/Nikita Gadgil 13 of 21
14 Judgment-WP 9322-18.odt
Schedule of the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1976. (emphasis supplied) 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. 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).
49. 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 preconstitutional era. As regards
the area restriction is concerned, the area restriction was
lifted in 1976. (emphasis supplied) This Court in the said
judgment also adverted to the Division 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 directed the Scrutiny Committee to issue a
caste validity certificate i.e. he belongs to 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
50. Division Bench of this Court in the case of Jaywant
Dilip Pawar Vs. State of Maharashtra & Ors. (supra) after
adverting to the judgment of the Division Bench of this
Court in the case of Apoorva Vinay Nichale (supra) has
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
Scrutiny Committee has decided contrary to the principles
laid down by the Division Bench of this Court in the said
Judgment."
Mugdha/Nikita Gadgil 14 of 21
15 Judgment-WP 9322-18.odt
15. In the facts of this case also, we observe that already there are
seventeen caste validity certificates in favour of the blood relatives of
Petitioner coming from common ancestor "Gobaji" that have been
issued after following due procedure. The Scrutiny Committee ought to
have therefore issued the Caste Validity Certificate in favor of the
Petitioner.
16. With respect to the submission of the learned AGP referring to
the observation of the Scrutiny Committee that by virtue of the School
Admission Register Extract of Hiralal Namdev Thakur (paternal cousin
cousin grandfather of Petitioner) issued by MNC School No.2, Dhule,
which is dated 4th March, 1929, wherein the caste is recorded as
"Rajput Thakur" not being in the knowledge of the Scrutiny Committee
issuing those validity certificates, Petitioner cannot be issued the Caste
Validity Certificate, in our view, this factum cannot by itself come in the
way of issuance of the Caste Validity Certificate to the Petitioner as
none of those certificates appear to have been cancelled nor any notice
in this regard appears to have been issued.
17. The submission of the learned AGP in support of what is
contained in the Impugned Order with respect to the affinity test
Mugdha/Nikita Gadgil 15 of 21
16 Judgment-WP 9322-18.odt
emerging from the Vigilance Cell report that the marriages in the
family of Petitioner are solemnised within their own caste and that
Petitioner's relatives by marriage, namely, Bhatu Bapu Thakur
(Petitioner's mother's grandfather) and Arjun Jugaru Thakur
(Petitioner's mother's blood relative) of the year 1908 (03.01.1908)
and 1910 (01.04.1910) which respectively records their caste as "Bhat"
clearly reflects the affinity of Petitioner's family with the Bhat caste
people who are non tribal, in our view is not a proposition or argument
which can come in the way of the overwhelming evidence of the
seventeen caste validity certificates referred to herein. One instance as
remote as Petitioner's mother's grandfather or relative of applicant's
mother from paternal side cannot in any way invalidate the Caste
Validity Certificates issued at various points in time to the relatives of
the Petitioner. In any event in the definition of relative as contained in
Rule 2(h) of the Caste Validity Rules, 2012, "maternal relative" appears
to be excluded in view of the specific reference to blood relatives from
the paternal side. Neither the Scrutiny Committee nor the learned AGP
nor the original record produced by her has been able to indicate that
because of the two instances of extract of School Admission records
that the seventeen caste validity certificate holders would be non tribal
Bhats and not Thakur Scheduled Tribe. Learned AGP has also not been
Mugdha/Nikita Gadgil 16 of 21
17 Judgment-WP 9322-18.odt
able to show any notice for re-opening the cases of the seventeen caste
validity certificate holders or that any notices in this regard having
been issued to the said validity holders for recalling the validity
certificates. In the face of stark, clear evidence of Caste Validity
Certificates in favour of various relatives of the Petitioner, the Scrutiny
Committee need not have ventured out to unsuccessfully pick holes
with respect to the affinity test. Once there is evidence of relatives
having valid caste validity certificates of Thakur Scheduled Tribe, the
Scrutiny Committee is bound to grant certificate to Petitioner's claim
and could not have denied the same to Petitioner. 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". This is
ex facie contrary to the Presidential Orders issued in 1950 amended by
the Amendment Act, 1976 by which the "Thakur" community was
included in Scheduled Tribes. In our view, the Scrutiny Committee thus
could not have rejected the caste claim of the petitioner by holding that
Mugdha/Nikita Gadgil 17 of 21
18 Judgment-WP 9322-18.odt
there was different class or or group of "Thakur" as "Non-tribal Bhat".
17. With respect to learned AGP's reliance on the decisions in the cases
Murlidhar Ramkrishna Gathe (supra), Pournima Suryakant Pawar
(Supra) and Ravi Pakash Parmar (supra), we observe that the same
are clearly distinguishable on facts and not applicable to the case of
Petitioner.
17.2. Learned AGP has also placed reliance on the judgment of the Full
Bench of this Court in the case of Shilpa Vishnu Thakur (Supra), to
canvass petitioner's failure to establish socio-cultural affinity and
ethenic linkage. We have no quarrel with the principles laid down by
the Full Bench of this Court in the case of Shilpa Vishnu Thakur
(supra) with respect to the affinity test. However, in our view, affinity
test is not a litmus test. It only assumes significance in the absence of
validity certificates in respect of relatives. In this regard paragraph 22
in the case of Anant Katole Vs. the Committee for Scrutiny and
Verification of tribe claim, 2011 (6) Mh. L. J. (SC) is usefully quoted as
under:
"22. It is manifest from the afore-extracted paragraph that
the genuineness of a caste claim has to be considred not
only on a thorough examination of the documents
Mugdha/Nikita Gadgil 18 of 21
19 Judgment-WP 9322-18.odt
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 prabative value to
the declaration of status of a caste, as compared to post-
Independence documents. In case of 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
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, affinity test
may not be regards as a litmus test for establishing the
link of the applicant with a Scheduled Tribe. (emphasis
supplied). 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,
Mugdha/Nikita Gadgil 19 of 21
20 Judgment-WP 9322-18.odt
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"
19. Learned Additional Government Pleader could not distinguish
the judgments referred to and relied upon on behalf of the petitioner.
There is, therefore, no substance in the submission of the learned
Additional Government Pleader.
20. In view of the aforesaid discussion, we are, inclined to allow
this Petition. The impugned order dated 10 th August, 2018 passed by
Respondent No.2-Scheduled Tribe Certificate Scrutiny Committee,
Nandurbar is hereby quashed and set aside.
21. The Respondent no.2 -Committee is 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 judgment;
22. The respondent no. 4 to accept the caste validity certificate that
would be issued by the Scrutiny Committee in favour of the petitioner
and to act in furtherance thereof.
Mugdha/Nikita Gadgil 20 of 21
21 Judgment-WP 9322-18.odt
23. Rule is made absolute in the above terms.
24. Writ Petition accordingly stands disposed. There shall
however be no order as to costs. The original file produced by the
learned AGP is returned herewith.
25. Parties to act on an authenticated copy of this judgment.
(ABHAY AHUJA, J.) (R.D. DHANUKA, J.)
Digitally signed
by NIKITA
NIKITA YOGESH
GADGIL
YOGESH Date:
GADGIL 2021.10.21
17:20:56
+0530
Mugdha/Nikita Gadgil 21 of 21
