Sanjay S/O Ukha Ingle vs The Scheduled Tribe Caste ...
2023 Latest Caselaw 6395 Bom

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


                            WRIT PETITION NO. 6599/2013


      Sanjay s/o. Ukha Ingle,
      Aged about 48 yrs., Occ.-Service,
      R/o. Mangal Gate Road,
      Ward No.17, Malkapur,
      Distt. Buldhana.                                  ----PETITIONER

                --VERSUS--
1.    The Scheduled Tribe Caste Certificate
      Scrutiny Committee, Irwin Chowk,
      Amravati Division, Amravati.

2.    The Superintending Engineer,
      Small Scale Irrigation (Water Conservation),
      Amravati Circle, Amravati.                        ----RESPONDENTS


Ms. P. D. Rane, Advocate for Petitioner.
Ms. S. S. Jachak, Assistant Government Pleader for Respondents/State.


       CORAM : A.S.CHANDURKAR AND MRS.VRUSHALI V. JOSHI, JJ.

DATED : JULY 06, 2023

ORAL JUDGMENT (PER : A.S.CHANDURKAR, J.)

1. Rule. Rule made returnable forthwith and heard finally with

consent of the learned Counsel for the parties.

2. The challenge raised in the present Writ Petition is to the

order passed by the Scrutiny Committee dated 22.11.2013 thereby

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invalidating the petitioner's claim of belonging to 'Thakur' Scheduled

Tribe.

3. The petitioner in support of his claim of belonging to 'Thakur'

Scheduled Tribe relied upon various documents of the pre-constitutional

era having the entry 'Thakur'. Amongst them are the documents dated

11.03.1941 and 25.06.1947 that were collected by the Vigilance Cell.

Similarly, the petitioner relied upon the School Leaving Certificate of his

grandfather dated 02.03.1936 and 19.08.1937. The Vigilance Cell in its

report dated 25.09.2013 noted that though the document dated

29.02.1928 did not have any reference to the tribe of the petitioner, the

subsequent documents prior to 1950 had such entries. It further held that

in absence of affinity with persons from the Scheduled Tribe Community,

the claim of the petitioner was not liable to be accepted.

4. The learned Counsel for the petitioner submitted that in the

light of the undisputed facts that all pre-constitutional documents had the

entry 'Thakur', there was no reason to disbelieve the claim of the

petitioner. Merely because the document of 1928 did not have any entry,

the same would not be of much consequence in as much as the subsequent

documents of the same person had the entry 'Thakur'. Placing reliance on

the judgment of the Hon'ble Supreme Court in Maharashtra Adiwasi

Thakur Jamat Swarakshan Samiti Vs. State of Maharashtra and Ors.

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[2023(2) Mh.L.J. 785] it was submitted that the affinity test could not be

treated to be a litmus test so as to disallow the claim and an overall view

of the material on record was required to be taken. On that basis it was

clear that the petitioner's claim was established.

5. The learned Assistant Government Pleader for the

respondents supported the order. She relied upon the report of the

Vigilance Cell to urge that the oldest document of 1928 did not have any

entry whatsoever and therefore it could not be relied upon. Though the

other documents had the entry 'Thakur', the claim was rightly discarded

by the Scrutiny Committee for want of affinity. Hence, there was no case

made out to interfere with the order passed by the Scrutiny Committee.

6. Having heard the learned Counsel for the parties and having

perused the documents on record, we find that the Vigilance Cell after

referring to various pre-constitutional documents noted that though the

document of 1928 was without any reference to the tribe of the petitioner,

the subsequent documents of the year 1941, 1947 and 1950 had such

entry. When the document of 1928 is examined in this context, it is clear

that the said document is of the petitioner's grandfather. The documents

pertaining to the subsequent period also have the entry 'Thakur'. It is not

in dispute that there are no contrary entries in any of the old documents.

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Hence due weightage to the pre-constitutional documents would have to

be given.

7. As regards the aspect of affinity is concerned, the legal

position is now clear in view of the decision in Maharashtra Adiwasi

Thakur Jamat Swarakshan Samiti (supra) wherein it has been held that

the affinity test cannot be treated to be a litmus test and that the claim has

to be decided after considering the entire material on record. The

statements recorded by the Vigilance Cell and the report of the Research

Officer indicates that the petitioner had sufficiently established affinity

with 'Thakur' Scheduled Tribe. As noted in the aforesaid decision with the

passage of time it is likely that all traits and characteristics of the tribe in

question may not be available. After taking an overall view of the matter

and in the light of the pre-constitutional documents with the entry

'Thakur', we are satisfied with the claim made by the petitioner deserves

to be allowed. The Scrutiny Committee erred in giving undue importance

to the affinity test thereby ignoring the probative value of the pre-

constitutional documents.

8. For aforesaid reasons, the order passed by the Scrutiny

Committee is set aside. It is declared that the petitioner has proved that

he belongs to 'Thakur' Scheduled Tribe. The Scrutiny Committee shall

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within a period of four weeks of receiving the copy of the judgment issue

Validity Certificate in favour of the petitioner.

9. Though the services of the petitioner had been discontinued

on account of the order passed by the Scrutiny Committee, he was

directed to be taken back in service by the interim order dated

28.04.2014. With the setting aside of the order passed by the Scrutiny

Committee, the petitioner would be entitled to all benefits flowing from

such continuation in service.

10. Rule is made absolute in aforesaid terms with no order as to

costs.

(MRS.VRUSHALI V. JOSHI, J.) (A.S.CHANDURKAR, J.)

RGurnule .