Bombay High Court
Pramod S/O Vishram Thakar vs State Of Maharashtra Thru ... on 12 December, 2022
Bench: Nitin W. Sambre, Sharmila U. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2376 OF 2019
WITH
INTERIM APPLICATION NO.4144 OF 2019
IN
WRIT PETITION NO. 2376 OF 2019
Pramod s/o. Vishram Thakar ... Petitioner.
Versus
The State of Maharashtra and Others. ... Respondents.
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Mr. Sushant C. Yeramwar, Advocate for the Petitioner.
Smt. P.J. Gavhane, AGP for the Respondent Nos.1 to 3-State.
Mr. Anuj V. Gaikar, for Respondent No.2 (Law officer CVC -Thane).
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CORAM : NITIN W. SAMBRE AND
SHARMILA U. DESHMUKH, JJ.
DATE : December 12, 2022.
P.C. :
1. Heard.
Digitally
2. The challenge in the writ petition is to the order dated
signed by
SANJAY
SANJAY
ASARAM
ASARAM
MANDAWGAD
MANDAWGAD Date:
28th February, 2007 passed by the Respondent No.2-the Scheduled
2022.12.14
Tribe Certificate Scrutiny Committee. The Petitioner came to be
19:22:44
+0530
appointed as a peon with the Respondent No.4-School against the
post, which is reserved for 'Scheduled Tribe" category. As a sequel
of the aforesaid appointment, the tribe claim of the Petitioner
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came to be referred to Respondent No.2-Committee for deciding its
validity. The Respondent No.2-Committee, accordingly analysised
the claim of the Petitioner as that of belonging to 'Thakar-
Scheduled Tribe' and vide impugned order rejected such claim. As
such, this writ petition.
3. The contention of the counsel for the Petitioner Mr.
Yeramwar is, the order impugned is based on two reasons viz. (a)
area restriction; and (b) the failure of the Petitioner to qualify
affinity test. According to him, the Petitioner has already produced
pre-independence era documents so as to substantiate his claim as
belonging to "Thakar" scheduled community tribe based on the
birth extract/certificate of his father i.e. Vishram Krishna Thakar.
According to him, the father of the Petitioner was born on 10 th
September, 1931 i.e. prior to the Scheduled Tribe order came into
existence. He would as such urge that he would produce one more
document, in addition to above. Counsel for the Petitioner would
invite attention of this Court to the certificate issued by the
Headmaster, Zilla Parishad School, wherein the paternal aunt,
namely, Tulsabai allegedly born in the 1945. According to him, in
the school record, caste of the aunt of the Petitioner is recorded as
'Hindu Thakar'.
4. In the aforesaid background, his contentions are in
view of the law laid down by the Apex Court, the issue of area
restriction cannot be considered to the detriment of the Petitioner,
particularly, in view of the provisions of the State Reorganization
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Act. As such, he would urge that the order impugned is not
sustainable on the said count. His further contentions are that
once the Petitioner produced pre-independence era document, the
said document having more probative value, the claim ought not
to have been rejected on the sole ground of failing to qualify the
affinity test.
5. Learned Assistant Government Pleader would oppose
the prayer, as according to her, entry in the school record of aunt
of the Petitioner that was 'Hindu Thakar' and not 'Thakar'. She
would further urge that the issue of rejection of tribe claim on the
ground of failure of affinity test is already decided by the Full
Bench of this Court in the matter of Shilpa Vishnu Thakur vs. State
of Maharashtra reported in 2009 (3), Mh.L.J. 995.
6. It is further claimed that the Petitioner having failed to
satisfy the affinity test, the Respondent No.2-Committee is justified
in rejecting the prayer of the Petitioner.
7. As far as aforesaid rival claims are concerned, the issue
as to whether the claim of the Petitioner can be rejected based on
the provisions of area restriction is no more res-integra. The Apex
Court in the matter of Jaywanta Dilip Pawar vs. State of
Maharashtra and others, in Civil appeal No.2336 of 2011, decided
on 8th March, 2017, has already recorded the finding that the claim
of a candidate cannot be rejected based on the provisions of area
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restriction, once the State Reorganization Act has come into effect.
As such, the reasons recorded by the Committee to that effect are
not sustainable in law.
8. As far as the issue of rejection of claim of the Petitioner
for failure to qualify the affinity test is concerned, it is apparently
clear from the catena of judgments, particularly, the judgment in
the matter of Aanand Katole vs. Committee for Scrutiny and
Verification of Tribe Claim, reported in 2011 (6) Mh.L.J. 919, that
the claim for issuance of validity cannot be rejected on the sole
ground of failure to qualify affinity test.
9. The facts of the case in hand clearly demonstrate that
on record the Petitioner has produced two documents viz. (a) the
birth extract record of the Petitioner's father; and (b) school
leaving certificate of his aunt. In both these documents, it is in
categorical terms recorded that the Petitioner belongs to Thakar
Community. Though the learned AGP has raised an objection to
the acceptance of the aforesaid documents in evidence, and more
particularly, even when in the caste column, the word 'Hindu' is
reflected, what can be inferred from the aforesaid entries is, in
such pre-independence era document, the word 'Hindu' refers to
the religion and, rightly so in the column of religion, the word
'Hindu' can be noticed in the document of paternal aunt of the
Petitioner. The aforesaid two documentary entries which are of
pre-independence era in categorical terms support the case of the
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Petitioner that he belongs to 'Thakar Community'. Resultantly, the
said word 'Thakar' to mean that the Petitioner belongs to 'Thakar
Upper Caste" cannot be inferred from the findings recorded by the
Scrutiny Committee. Rather the record depicts 'Thakar' entries of
pre-1950 as sufficiently proved by the Petitioner before this Court.
10. For the reasons stated herein above, the order
impugned is hereby quashed and set aside.
11. It is declared that the Petitioner belongs to 'Thakar
Scheduled Tribe" and is entitled for issuance of such certificate,
which the Respondent No.2-Committee is directed to issue the
same within a period of four weeks from the date of presentation
of order of this Court. Needless to say that the present judgment is
subject to the outcome of the Special Leave Petition (C) No. 24894
of 2009 [Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti
Vs. The State of Maharashtra and others].
12. The Writ Petition stands disposed of.
13 In view of disposal of Writ Petition, Interim
Application, if any, also stands disposed of.
( SHARMILA U. DESHMUKH, J. ) ( NITIN W. SAMBRE, J. )
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