Pankaj Rajendra Sapkal And Another vs Schedule Tribe Caste Certificate ...
2023 Latest Caselaw 13234 Bom

Bombay High Court

Pankaj Rajendra Sapkal And Another vs Schedule Tribe Caste Certificate ... on 21 December, 2023

Author: Nitin W. Sambre

Bench: Nitin W. Sambre

2023:BHC-NAG:17676-DB




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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH AT NAGPUR

                                        WRIT PETITION NO. 2344 OF 2023

                        1. Pankaj Rajendra Sapkal,
                        Age : 25 years, Occ. Student,
                        R/o at Post Rani Sati Nagar,
                        Plot No. 65, Khamgaon,
                        District Buldhana 444 303

                        2. Ku. Kunal Ramesh Sapkal,
                        Age : 25 years, Occ. Student,
                        R/o. Ghatpuri road, Vrundvan Nagar,
                        Khamgaon, District Buldhana                               .....PETITIONERS

                                       ...V E R S U S...

                        Schedule Tribe Caste Certificate
                        Scrutiny Committee, Old By Pass,
                        Chaprashipura, Amravati,
                        Through its Vice Chairman/
                        Jt. Commissioner,                                       .....RESPONDENTS
                        ----------------------------------------------------------------------------------
                        Mr. R.S. Suryawanshi, Advocate for Petitioners,
                        Mr. S.M. Ghodeswar, AGP for Respondent/State.
                        ----------------------------------------------------------------------------
                        CORAM:- NITIN W. SAMBRE & ABHAY J. MANTRI, JJ.
                        DATE : 21.12.2023

                        JUDGMENT (Per: Abhay J. Mantri, J.)

Rule. Rule made returnable forthwith. Heard

finally with the consent of the parties.

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2. Petitioners being dissatisfied by the order dated

17.11.2022, passed by the respondent - Schedule Tribe

Caste Certificate Scrutiny Committee, Amravati (for short,-

"Scrutiny Committee") invalidating claim of the petitioners

that they belong to Thakur Scheduled Tribe category, has

preferred this petition.

3. The petitioners are the students in the Buldhana

district who are pursuing their studies. The petitioners

claimed that they belong to the 'Thakur' Scheduled Tribe

category which is recognized and at serial No. 44 in the list

of the Scheduled Tribe Notification. On 2.1.2020 and

6.1.2021, the Sub-Divisional Officer, Buldhana issued caste

certificates in favour of the petitioners as they belong to the

'Thakur' Scheduled Tribe category. On submission of the

certificates in the College, vide communications dated

3.12.2021 and 8.8.2022, the college forwarded the

certificates to the Scrutiny Committee for their verification.

The Scrutiny Committee, vide order dated 17.11.2022,

invalidated the caste claim of the petitioners, therefore, the

petitioners approached this Court.

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4. Learned counsel for the petitioners vehemently

contended that the respondent - Scrutiny Committee failed

to consider the oldest entry of the document of 1926 which

shows that the petitioners belong to the 'Thakur' Scheduled

Tribe category and further failed to consider the settled

position of law laid down in the cases of Anand Vs.

Committee, 2011(6) Mh.L.J. 919; Priya Parate Vs. STCCSC

& Ors, 2013(1) All MR 133; Ravindra Khare Vs. State of

Maharashtra & Ors, 2013(3) All MR 644; Gajanan Shende

Vs. Head Master Govt. Ashram School, 2018(2) Mh.L.J.

460; Jaywant Pawar Vs. State - Civil Appeal No.

2336/2011, Ku. Ashwini Vilas Chavan Vs. State, 2017(4) All

M.R.412, etc., hence, the Scrutiny Committee erred in

invalidating the caste claim of the petitioners. The learned

advocate has invited our attention to the revenue entry

dated 9.1.1926 which shows that a baby boy was born to

the great-grandfather of the petitioner Mr. Chandrabhan.

Reliance is also placed on the ratio laid down in the case of

Priya Pramod Gajbe Vs. State of Maharashtra and Others,

2023 SCC OnLine SC 909 and Maharashtra Adiwasi Thakur

Jamat Swarakshan Samiti Vs. State of Maharashtra and 4 32wp2344.2023..odt

Others, 2023(2) Mh.L.J. 785, and argued that the affinity

test is not a litmus test to decide the caste claim and it is not

an essential part of the process of determination of the

correctness of the caste or tribe claim. It is submitted that

the area restriction mentioned in the order is wholly

irrelevant as the petitioners have to only establish that they

belong to the Scheduled Tribe community and therefore, the

finding recorded by the Scrutiny Committee is perverse and

contrary to the settled position of law.

5. Per Contra, Mr. S.M. Ghodeswar, the learned AGP

has strongly resisted the petition on the ground that the

petitioners have failed to prove the affinity test or that they

are the inhabitants of the area as published by the State

Government, so also, they failed to bring on record the

documentary evidence in support of their caste claim. The

petitioners also failed to take benefit of the validity

certificate obtained by their cousin sister Ms. Vaishali as

they failed to prove their relationship with her. Lastly, it is

submitted that the impugned order is just and proper, which

needs no interference in writ jurisdiction.

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6. It is pertinent to note that after service of notice

upon respondent/State on 12.4.2023 till 29.11.2023 a last

chance to file a reply was granted, despite the sufficient

opportunity, the respondent/State has failed to file a reply

to the petition and therefore, contents of the petition have

remained uncontroverted.

7. On perusal of the impugned order, it seems that

the respondent - Scrutiny Committee invalidated the caste

claim of the petitioners, mainly on the following grounds:

i) The petitioners have failed to satisfy the affinity test conducted during vigilance inquiry , and

ii) The petitioners failed to prove that they originally belonged to the area where the people of the 'Thakur' Scheduled Tribe reside.

It is pertinent to note that the respondent

Committee has not controverted the revenue entry dated

9.1.1926 about Mr. Chandrabhan, the great-grandfather of

the petitioners, said entry denotes that one baby boy was

born to Mr. Chandrabhan. The said document is neither

controverted nor denied by the respondent committee. On 6 32wp2344.2023..odt

the contrary, the Vigilance Cell Report indicates that the

Vigilance Cell Committee has verified/inspected the said

document from the original record of the Tahsil office, and

said entry is found to be correct. In the said entry, the caste

of Mr. Chandrabhan was mentioned as Thakur. Also, the

Committee has not disputed the relationship of Mr.

Chandrabhan with the petitioners but the Committee only

on the ground that the petitioners have failed to prove

affinity test and failed to prove that they belong to an area

where people of Thakur community reside, invalidated the

caste claim. It is a settled position of law that if a tribe claim

is supported by the pre-constitutional document, the pre-

constitutional document has a greater probative value than

any other document, and the same cannot be discarded

merely on the grounds of affinity test or area restrictions.

The petitioners belonging to a particular area have also

come on record before the Scrutiny Committee, and

therefore, there was no reason to discard the said document

by the Committee.

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8. Moreover, the Hon'ble Supreme Court in

Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti

(supra), has held that "the affinity test cannot be applied as

a litmus test to decide a caste claim and is not an essential

part in the process of determination of the correctness of a

caste or tribe claim in every case. The affinity test cannot

be conclusive either way, when the affinity test is conducted

by Vigilance Cell, the result of the test along with all other

material on record having probative value will have to be

taken into consideration by the Scrutiny Committee while

deciding the caste validity claim."

9. Thus, from the above ratio, it is clear that the

affinity test is not the sole criteria to determine a caste claim

of the parties but other material on record has to be taken

into consideration.

10. Secondly, the respondent-Scrutiny Committee

has negatived the claim of the petitioners on the ground

that the petitioners are not the residents of the area mentioned

in the Presidential Order, and therefore , they are not entitled to 8 32wp2344.2023..odt

claim caste validity certificates. However, in our

considered opinion, it is wholly irrelevant to determine the

claim of the petitioners only on the basis of their residence,

but petitioners have to establish that they belong to the

Scheduled Tribe Community at serial No. 44 in the list of

the Scheduled Tribe Notification. Besides, the petitioners

have produced an authentic and genuine document of the

pre-constitutional era to show that they belong to the

'Thakur' Scheduled Tribe community, hence, we do not find

substance in that regard. As such, the finding of the

Committee about area restrictions also is not sustainable in

the eyes of the law.

11. That apart, petitioners have produced the caste

validity certificate of cousin sister Ms. Vaishali Thakur,

issued by the Scrutiny Committee, Aurangabad Division,

however, the Scrutiny Committee has discarded the said

document stating that the petitioners have not filed an

affidavit showing their relationship with Ms. Vaishali

Thakur. In fact, the uncle of petitioner no.1 and father of

petitioner no.2, Mr. Ramesh has filed an affidavit before the 9 32wp2344.2023..odt

Vigilance Cell, and petitioner No.1 has also filed an affidavit

before the Tahsil office, wherein the family tree is given. In

the said tree, the name of Ms. Vaishali is shown as cousin

sister. The Committee has failed to consider said fact in its

proper perspective and erred in discarding the same. In

fact, on the basis of the ratio laid down in Apoorva Vinay

Nichale Vs. Divisional Caste Scrutiny Committee No 1 and

Others, 2011(2)BCR 824, the Scrutiny Committee ought not

have to refuse the same status to the petitioners that they

belong to Thakur Scheduled Tribe. Despite this, the

Committee has discarded the said certificate on the ground

that the petitioners failed to show their relationship with

Ms. Vaishali in pedigree. Thus, it seems that the findings

given by the Scrutiny Committee on the count of affinity

test and area restrictions are contrary to the ratio laid by the

Hon'ble Supreme Court,(supra). Refusal of the grant of the

same status to the petitioners is contrary to the settled

position of law as is laid down in the case of Apoorva

Nichale (supra).

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12. Having regard to the aforesaid discussion and

documents on record, it clearly reveals that the Entry dated

9.1.1926 shows that the caste of the great-grandfather of

the petitioner was shown as Thakur Scheduled Tribe in the

revenue record. The said document was neither

controverted nor denied by the Scrutiny Committee or

Vigilance Cell Committee. Per contra, it appears that the

Vigilance Cell Committee has personally inspected the said

document from the revenue record and found it to be the

correct entry. The said document is from the year 1926

which is of the pre-constitutional era and therefore, said

document has a greater probative value than the affinity

test or area restrictions, therefore, on that ground alone, the

petitioners are entitled to get caste validity certificates.

Secondly, the Scrutiny Committee, Aurangabad Division has

issued a caste validity certificate in favour of Ms. Vaishali

who is the cousin sister of the petitioners, and the Caste

Scrutiny Committee, Amravati has issued a caste validity

certificate in favour of Mr. Sharad Shrihari Thakur who is

cousin brother of the petitioners and therefore, in view of

ratio laid down in Apoorva Nichale case, the Scrutiny 11 32wp2344.2023..odt

Committee ought to have issued same status to the

petitioners that they belong to ' Thakur' Scheduled Tribe.

Thus, it seems that the findings on the point of affinity test

and area restriction given by the respondent Scrutiny

Committee are contrary to the ratio laid down in the case of

Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti

(supra) as well as the facts on record, therefore, the said

findings are required to be quashed and set aside by issuing

necessary direction to the Scrutiny Committee in that

regard. Hence, we deem it appropriate to pass the following

order:

ORDER

i) Impugned order dated 17.11.2022 passed by the respondent - Scrutiny Committee is quashed and set aside.

ii) Respondent - Scrutiny Committee, Amravati is directed to issue caste validity certificates in favour of the petitioners within a period of eight weeks from receiving the copy of this order.

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13. Rule made absolute in the aforesaid terms. No costs.

(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)

belkhede

Signed by: Mr. R. S. Belkhede Designation: PA To Honourable Judge Date: 03/01/2024 18:24:23