Dipak Vasant Thakur vs The State Of Maharashtra And ...
2023 Latest Caselaw 7289 Bom

2023:BHC-AUG:15323-DB
                                                                                      1014.wp.8668.19.odt


                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         BENCH AT AURANGABAD

                                          WRIT PETITION NO.8668 OF 2019
                                                      WITH
                                          CA/1237/2020 IN WP/8668/2019

                      Dipak s/o Vasant Thakur,
                      Age : 45 years, Occu: Service
                      Presently residing at 52/4,
                      Yashwant Nagar, Near Girna Taki,
                      Jalgaon, Tq. & Dist. Jalgaon                         ...        PETITIONER

                              VERSUS

             1.       The State of Maharashtra
                      Department of Tribal Development,
                      Mantralaya, Mumbai-32
                      through its Secretary
             2.       The Scheduled Tribe Certificate Scrutiny
                      Committee, Nandurbar Division
                      Nandurbar through its Member Secretary
             3.       The Divisional Joint Registrar, Co-operative
                      Societies (Audit), Nashik Division,
                      Nashik, Vishwanath Chamber, 1st Floor,
                      Nashik - 422001
                      Tq. & Dist. Nashik                           ...       RESPONDENTS

                                            ...
             Advocate for Petitioner : Mr. Sushant C. Yeramwar
             Addl. Government Pleader for respondent Nos.1 to 3 : Mr. P.S. Patil
                                            ...

                                                     WITH
                                         WRIT PETITION NO.8538 OF 2019
                                                     WITH
                                         CA/13624/2021 IN WP/8538/2019

                      Swapnil s/o Deepak Thakur,
                      Age : 19 years, Occu: Student
                      Presently residing at 52/4,
                      Yashwant Nagar, Near Girna Taki,
                      Jalgaon, Tq. & Dist. Jalgaon                         ...        PETITIONER

                              VERSUS


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                                                                              1014.wp.8668.19.odt


1.  The State of Maharashtra
    Department of Tribal Development,
    Mantralaya, Mumbai-32
    through its Secretary
2.  The Scheduled Tribe Certificate Scrutiny
    Committee, Nandurbar Division
    Nandurbar through its Member Secretary
3.  State Common Entrance Test Cell,
    Maharashtra State, 8th Floor,
    New Excelsior building, A.K. Nayak Road
    Fort, Mumbai - 400001 through its
    Commissioner & Competent Authority
4.  Visvesvaraya National Institute
    of Technology Nagpur
    through its Joint Registrar (Acd.)          ...      RESPONDENTS
                                    ...
           Advocate for Petitioner : Mr. Sushant C. Yeramwar
   Addl. Government Pleader for respondent Nos.1 and 2 : Mr. P.S. Patil
                                    ...
                        CORAM            : MANGESH S. PATIL AND
                                            SHAILESH P. BRAHME, JJ.
                                    Reserved on       05.07.2023
                                    Pronounced on :   21.07.2023

ORDER (MANGESH S. PATIL, J.) :

By these two writ petitions under Article 226 of the Constitution

of India the petitioners who are the father and son are challenging the

common judgment and order passed by the respondent No.2 - Scheduled

Tribe Certificate Scrutiny Committee (herein after the Scrutiny Committee)

constituted under the Maharashtra Scheduled Castes, Scheduled Tribes,

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

and Special Backward Category (Regulation of Issuance and Verification of)

Caste Certificate Act, 2000 and the rules framed thereunder, whereby their

claim for validity certificate as belonging to 'Thakur' scheduled tribe has

been turned down.

1014.wp.8668.19.odt

2. The learned advocate for the petitioners submits that there was

pre-constitutional school record of the great grandfather of 01.01.1914

recording his caste as 'Thakur'. Even there was a school record of

grandfather Vasantrao Vyankat Solanke of 06.03.1952 mentioning his caste

as 'Hindu Thakur'. Similarly there was school record of a cousin great

grandfather Vinayak Rupchand Thakur of 08.06.1959 mentioning his caste

as 'Thakur'. Since these were the oldest entries of the individuals who were

the forefathers of the petitioners, in view of the decision in the matter of

Anand Vs. Committee for Scrutiny and Verification of Tribe Claims and Ors.;

(2012) 1 SCC 113 it should have been accepted having greatest probative

value. He submits that there was no sufficient and cogent reason for the

committee to discard such clinching material.

3. He would submit that the committee also ignored the consistent

view being taken whereby area restriction was expressly abolished by a

presidential order of the Scheduled Castes and Scheduled Tribes Orders

(Amendment) Act, 1976. The observation was clearly inconsistent with the

decision of Supreme Court in the matter of Palaghat Jila Thandan Samuday

Sanrakshan Samiti and Anr. Vs. State of Kerala and Anr.; (1994) 1 SCC 359

and several other subsequent judgment of this Court passed relying upon

that decision.

4. The learned advocate would also submit that even the Scrutiny

Committee committed grave error in applying the affinity test when it has

been consistently laid down in the matter of Anand (supra) as also in the

1014.wp.8668.19.odt

matter of Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. State

of Maharashtra and Ors.; 2023 SCC Online SC 326 that it is not a litmus

test. He submitted that the affinity test can be applied only if there is no

sufficient documentary evidence to substantiate the claim. Ignoring such

consistent law the committee has also resorted to the affinity test to draw

the inference.

5. Lastly, the learned advocate would submit that the reliable

documentary evidence having greater probative value has been discarded

and the inference has been drawn by resorting to some alleged contrary

entries having lesser probative value in respect of cousin great grandfather's

daughter Ashalata Vinayak Thakur of 21.06.1973, wherein, her school

record mentioned her caste as 'Hindu Other Backward Thakur'.

6. Per contra, learned AGP supported the decision. He submitted

that the committee has undertaken a thorough scrutiny of the claim. It has

referred to and demonstrated as to how, the documents being relied upon by

the petitioners were not reliable. There was no reason for the petitioners'

grandfather to pay school fees if really he was from a scheduled tribe. Even

the school record of Ashalata described her as other backward class which

was indeed a contrary entry. It has also laboured to demonstrate as to how

Thakur scheduled tribes were the inhabitants of various other places but

were not traceable to Jalgaon, Dhule and Nandurbar (Khandesh) to which

place the petitioners' ancestors belonged. There was abnormal rise of false

claims coming from these three districts i.e. Jalgaon, Dhule and Nandurbar.

1014.wp.8668.19.odt

A statistics was collected to substantiate it demonstrating abnormal rise of

the persons claiming to be Thakur scheduled tribe. It was therefore

imperative for the committee to even resort to affinity test which it had

rightly done. The petitioners have failed in that test. No error has been

committed by the committee in reaching the conclusion. The observations

and the conclusions are based on plausible appreciation of the material that

was available to the scrutiny committee. This Court cannot undertake a

fresh scrutiny and the petition be dismissed.

7. We have carefully considered the rival submissions and perused

the papers. At the out set, it is necessary to note that so far as the

observation and the conclusion of the scrutiny committee in respect of the

area restrictions and application of the affinity test are concerned we need

only to refer to the decision in the matter of Palaghat Jila Thandan

Samuday, Anand and Maharashtra Adiwasi Thakur Jamat Swarakshan

Samiti (supra). With the removal of area restriction and the purpose and

object behind it, attempt of the scrutiny committee to again resort to it is

clearly illegal. Similarly, in spite of consistent view expressed by the

Supreme Court that the affinity test has a very limited application, the

endeavour of the committee to resort to it is also unsustainable in law.

8. This leaves us with the documentary evidence that was

available to the scrutiny committee some of which was for and some against

the claim. To begin with, admittedly petitioner Dipak's great grandfather

Vyankat Rupchand Thakur's school record of 07.02.1919 shows his caste as

1014.wp.8668.19.odt

Thakur. The committee discards it on the ground that the record was not

found in the school and therefore it is not reliable. However, in the vigilance

report it was expressly mentioned by the officer that the school record of

Vyankat Rupchand Thakur mentioned his caste as Thakur who was admitted

in the school on 07.02.1919. It is to be noted that if the vigilance officer

had made such observations in his report which was submitted in the year

2007, we cannot comprehend as to how the committee could have, without

their being any additional inquiry or evidence reached a conclusion on the

basis that the original record was not found in the school.

9. This apart, admittedly, even in respect of the Dipak's

grandfather Vasantrao, in the school record of the year 1952 the caste was

shown as 'Thakur'. Same was the case in respect of cousin great grandfather

Vinayak Rupchand Thakur which entry was of 08.06.1959 mentioning the

caste as 'Thakur'. If these old entries apparently of the great grandfather,

grandfather and cousin great grandfather describe them to be belonging to

Thakur caste, any subsequent record even if it is said to be a contrary one

cannot outweigh the old one. This is precisely what has been laid down in

the matter of Anand (supra). The old entries would carry greater probative

value.

10. True it is that there can be some doubt in respect of the school

record of one Vyankat Rupla Shala being relied upon by the petitioners of

the year 1913 but there was no sufficient record to hold that the individual

is from the genealogy being relied upon by them and therefore we find no

1014.wp.8668.19.odt

error committed by the committee in discarding it.

11. In respect of cousin great grandfather's daughter Ashalata

Vinayak Thakur, merely because with word 'Thakur', 'Other Backward' have

also appeared in the school record of 1973 and only because Dipak's

grandfather Vasantrao was shown to be a student paying fees, in our

considered view these circumstances were not sufficient enough to entertain

a doubt about the tribe claim more so when there was sufficient

documentary evidence showing the petitioners ancestor's caste as Thakur.

12. In view of the above, in our considered view the committee has

grossly erred in appreciating the evidence rather the observations and

conclusions are clearly against the weight of the evidence.

13. The writ petitions are allowed. The impugned order is quashed

and set aside. The respondent - scrutiny committee shall issue tribe

certificates to both the petitioners within two weeks.

14. Pending civil applications are disposed of.

  (SHAILESH P. BRAHME, J.)                                 (MANGESH S. PATIL, J.)




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