Bombay High Court
Ashlesha D/O Dattatray Suryawanshi And ... vs The Vice-Chairman/ Member- Secretary, ... on 29 November, 2023
Author: Avinash G.Gharote
Bench: Avinash G.Gharote
2023:BHC-NAG:16562-DB
Judgment
139 wp7328.22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.7328 OF 2022
1. Ashlesha d/o Dattatray Suryawanshi,
aged about 21 years, occupation student.
2. Revati d/o Dattatray Suryawanshi,
aged about 23 years, occupation student.
Both r/o Ramnagar, behind Petrol
Pump, Nandura Road, Jalgaon
Jamod, district Buldhana-443 402. ..... Petitioners.
:: V E R S U S ::
1. The Vice-Chairman/Member-
Secretary
Scheduled Tribe Caste Certificate
Scrutiny Committee,
Chaprashipura, Amravati.
2. The Principal,
Maharashtra National Law
University,
6th Floor, MTNL Building,
Hiranandani Garden, Powari,
Mumbai-400076.
3. The Principal,
Shri Gurudeo Ayurved College &
Hospital,
Gurukunj Ashram, Mozri,
tahsil Tiosa, district Amravati.
4. The Registrar,
Maharashtra University of Health
Sciences, Mhasrul, Vani-Dindori
.....2/-
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139 wp7328.22
2
Road, Nasik-422004. ..... Respondents.
====================================
Ms.P.D.Rane, Counsel for Petitioners.
Shri Abhijit Deshpande, Counsel for Respondent No.4.
Shri N.S.Autkar, Assistant Government Pleader for
Respondent No.1.
====================================
CORAM : AVINASH G.GHAROTE & URMILA JOSHI-PHALKE, JJ.
CLOSED ON : 09/11/2023
PRONOUNCED ON : 29/12/2023
JUDGMENT :
(Per : Urmila Joshi-Phalke, J.)
1. Heard learned counsel Ms.P.D.Rane for
petitioners, learned counsel Shri Abhijit Deshpande for
respondent No.4, and learned counsel Shri N.S.Autkar for
respondent No.1.
2. By this petition, petitioners take exception to
order dated 6.9.2022 passed by respondent No.1 -
Scrutiny Committee, Amravati (the Committee)
invalidating tribe claim of petitioners as belonging to caste
"Thakur" Scheduled Tribe.
3. The petitioners are real sisters and they are
pursuing their education. They claim to be of caste
"Thakur" Scheduled Tribe.
.....3/-
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139 wp7328.22
4. A proposal of petitioner No.1 for validating her
caste claim was forwarded to the Committee along with
necessary documents on 7.10.2020. Whereas, a proposal
of petitioner No.2 was forwarded in the year 2020. The
petitioners relied upon eleven documents, out of them
five documents were pre-constitutional. As per family
tree submitted by petitioners, "Balwant" is great-
grandfather whose caste is recorded as "Thakur". There
are consistent entries in the name of their forefathers
recording them as "Thakur".
5. Learned counsel Ms.P.D.Rane for petitioners,
submitted that as per the family tree, caste of "Balwant",
who is great-grandfather of petitioners, was recorded as
"Thakur" while recording birth entry of his son on
19.2.1913. As per birth extract, said "Balwant" has two
sons viz. "Keshav" and "Digambar", who are also recorded
as "Thakur" during pre-independence era. "Keshav's" son
"Bhaskar" is also recorded as "Thakur". The School
Leaving Certificate of another son of "Balwant" viz.
.....4/-
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"Digambar" also shows belonging to be "Thakur". Thus,
there are consistent entries showing forefathers of
petitioners to be "Thakur". There is no dispute as to the
family tree.
Learned counsel further submitted that the
Committee referred the claim of petitioners for vigilance.
The Vigilance Committee collected some documents
showing "Keshav", the son of "Balwant", gave birth to a
daughter viz. "Gani" who is recorded as "Bhat" in the year
1953. On the basis of the said entry, the claim of
petitioners is invalidated. In fact, after receipt of
Vigilance Report, petitioner No.1 filed an affidavit and
explained the documents. The petitioners explained that
the said entry is not relating to her family members. The
Committee has ignored all pre-independence documents
which have probative value and invalidated the claim. In
fact, on the basis of the same documents, cousin
grandfather viz. "Surendra" and cousin uncle "Sagar" of
petitioners were granted Caste Validity Certificates by
.....5/-
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order of this court in Writ Petition No..2513/2019 and
1674/2015 respectively. However, the Committee,
without considering the same, invalidated the caste claim
of petitioners illegally and arbitrarily which is liable to be
set aside.
6. In support of her contentions, learned counsel
Ms.P.D.Rane for petitioners placed reliance on following
decisions:
1. Pravin s/o Madhukar Suryawanshi and anr
vs. The Vice-Chairman/Member-Secretary,
Scheduled Tribe Caste Certificate Scrutiny
Committee, Amravati and ors decided by this
court on 12.12.2022 in Writ Petition
No.5891/2022;
2. Maharashtra Adiwasi Thakur Jamat
Swarakshan Samiti vs. State of Maharashtra
and ors, reported in 2023(2) Mh.L.J. 785;
3. Gaurav s/o Pradeep Wagh vs. The Vice-
Chairman/Member Secretary, Scheduled Tribe
Caste Certificate Scrutiny Committee, Nagpur
and ors decided by this court on 15.8.2023 in
Writ Petition No.7815/2022, and
4. Ku.Ekta d/o Ganpatrao Ghodmare vs. The
Vice-Chairman/Member, Secretary Scheduled
Tribe Caste Certificate Scrutiny Committee,
.....6/-
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Nagpur and anr decided by this court on
25.9.2023 in Writ Petition No.4895/2022.
7. Per contra, learned Assistant Government
Pleader Shri N.S.Autkar for respondent No.1, submitted
that there are adverse entries showing that family
members of petitioners are recorded as "Bhat". He placed
reliance on birth register extract entry of dated 28.3.1916
showing one "Balwant" was recorded as "Bhat" while
registering birth date of his male child born on 27.3.1916.
He further invited our attention to another birth entry
showing that "Keshav" s/o "Balwant" registered birth date
of his daughter and while taking the said entry, he was
recorded as "Bhat" on 5.3.1953. He further submitted
that the family tree submitted by petitioners does not
show the son born to "Balwant" in the year 1916 and
daughter born to "Keshav" on 5.3.1953. Thus, petitioners
have suppressed these adverse entries. The explanation
put forth by petitioners is not satisfactory. Thus, the
Committee rightly invalidated the caste claim of
petitioners and no interference is called for.
.....7/-
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8. In support of his contentions, learned Assistant
Government Pleader Shri N.S.Autkar for respondent No.1
also placed reliance on the decision of the Honourable
Apex Court in the case of Maharashtra Adiwasi Thakur
Jamat Swarakshan Samiti vs. State of Maharashtra and
ors supra.
9. Undisputedly, cousin grandfather viz.
"Surendra" and cousin uncle "Sagar" of petitioners were
granted Caste Validity Certificates by order of this court in
Writ Petition No..2513/2019 and 1674/2015 respectively.
The Caste Validity Certificates granted to them are not
challenged subsequently. The relationships of petitioners
with said "Surendra" and "Sagar" are not disputed. The
family tree submitted by petitioners and Vigilance Cell are
similar. There are no contrary names as to the family tree
is concerned. The Committee has not disputed the family
tree. As per the family tree submitted with the Vigilance
Report, "Atmaram" is original ancestral who has two sons
viz. "Balwant" and "Gangaram". Said "Balwant" has two
.....8/-
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sons viz. "Keshav and "Digambar". Said "Balwant" is
great-great-grandfather of petitioners. Said "Keshav" is
great-grandfather and said "Digambar" is cousin great-
grandfather of petitioners. The great-great-grandfather of
petitioners "Balwant" has one brother viz. "Gangaram"
who has one son viz. "Bhanu" who died in his childhood.
Said "Keshav", the great-grandfather of petitioners, has
three sons viz. "Bhaskar", "Krishna" alias "Balkrishna",
"Madhav". Whereas, "Digambar" has one son viz.
"Surendra" and one daughter viz. "Meera". "Keshav's"
son "Bhaskar" is the grandfather of petitioners.
10. The document, on which petitioners placed
reliance on, is birth entry dated 19.2.1913 registered on
the same day, shows great-great-grandfather of
petitioners "Balwant" belongs to "Thakur". The birth entry
showing birth of a male child to "Keshav" wherein
"Keshav" recorded as "Thakur" on 17.10.1942. The
School Leaving Extract of son of "Keshav" viz. "Bhaskar"
(grandfather of petitioners) showing his birth date as
.....9/-
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27.10.1942 and recorded as "Thakur". The extract of
birth of "Balkrushna", another son of "Keshav", was born
on 25.8.1951 wherein also caste is shown as "Thakur".
The School Leaving Certificate of "Digambar" (cousin
great-grandfather of petitioners) shows his birth date as
1.7.1917 and he was admitted in Zilla Parishad Primary
School from 8.12.1922 to 1.3.1929 and also recorded as
"Thakur". The School Leaving Certificate of "Keshav"
shows that he was admitted in Zilla Parishad School,
Gawandgaon, taluka Anjangaon, district Amravati in the
year 1909 and was born on 22.1.1904 and also recorded
as "Thakur". Thus, there are consistent entries in the
name of forefathers of petitioners during pre-
independence era showing them to be "Thakur".
11. Learned counsel Ms.P.D.Rane for petitioners,
vehemently submitted that all these documents of pre-
independence era having probative value are not
considered by the Committee. The Committee referred
the claim of petitioners for vigilance for enquiry without
.....10/-
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recording any reasons. In the light of the above
submissions, if sub rule (2) of Rule 12 of the Maharashtra
Scheduled Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward Classes
and Special Backward Category (Regulation of Issuance &
Verification of) Caste Certificates Act, 2000 (Act No.23 of
2001) is perused, it provides that only if the Scrutiny
Committee is not satisfied with documentary evidence
produced by applicant, it shall forward application to the
Vigilance Cell for conducting enquiry. While interpreting
the said Rule, the Full Bench of the Honourable Apex
Court in the case of Maharashtra Adiwasi Thakur Jamat
Swarakshan Samiti vs. State of Maharashtra and ors
supra held that, "in every case, as a matter of routine,
the Scrutiny Committee cannot mechanically forward the
application to Vigilance Cell for conducting an enquiry.
When sub rule (2) of Rule 12 contemplates that only if the
Scrutiny Committee is not satisfied with the documents
produced by the applicant that the case should be
referred to Vigilance Cell, it follows that the Scrutiny
.....11/-
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Committee is required to pass an order recording brief
reasons why it is not satisfied with the documents
produced by the applicant. Before referring the case to
the Vigilance Cell, application of mind to the material
produced by the applicant is required and therefore, the
application of mind must be reflected in the order sheets
of the Scrutiny Committee.
12. Perusal of the record nowhere reflects that the
Committee recorded its reasons as to dissatisfaction of
the record and its reasons for referring the application to
the vigilance. The Committee placed reliance on the
documents collected by the Vigilance Cell showing
adverse entries in the name of some of so claimed
ancestors of petitioners who are recorded as "Bhat". The
Vigilance Cell and the Scrutiny Committee placed reliance
on two entries; viz. (1) birth extract registering birth
entry of one "Balwant" showing male child was born on
27.3.1916 wherein he was recorded as "Bhat" and (2)
birth entry of daughter of "Keshav" viz. "Gani" showing
.....12/-
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"Keshav" as "Bhat" dated 5.3.1953. While replying the
Notice issued by the Committee, after receipt of the
Vigilance Cell Report, petitioners denied any relationship
with both entries. As far as entry No.2 is concerned,
though petitioners denied any connection with the said
entry, pleadings show that petitioners admitted that
"Keshav" has one daughter. Placing reliance on these
entries, the Committee has invalidated the tribe claim of
petitioners by giving weightage to the documents
obtained by the Vigilance Cell. Admittedly, there are
consistent entries since 1913 showing forefathers of
petitioners as "Thakur". While ignoring the said entries,
the Committee has not given any reasons for such
considerations. Insofar as entry showing "Balwant" is
recorded as "Bhat" in birth extract entry dated 27.3.1916,
which is denied by petitioners with specific contention that
the said entry is not related to their family members. The
respondents could not point out through any documents
that the said entry relates to "Balwant" who is shown in
the family tree.
.....13/-
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13. It is common knowledge that several persons
could be found of the similar names in one village.
14. When the Committee came with a specific case
that the adverse entry is in connection with the name
"Balwant", who is great-great-grandfather of petitioners,
the Committee has to show the connection.
15. It is well settled that entries of pre-
independence era have probative value. .
16. The Full Bench of the Honourable Apex Court in
the case of Maharashtra Adiwasi Thakur Jamat
Swarakshan Samiti vs. State of Maharashtra and ors
supra held in para No.20 that one of the tests is as laid
down in the case of Kumari Madhuri Patil and another vs.
Additional Commissioner, Tribal Development and others,
reported in AIR 1995 SCC 94. It lays down that the
documents of the pre-constitution period showing the
caste of applicant and their ancestors have got highest
probative value. For example, if an applicant is able to
.....14/-
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produce authentic and genuine documents of the pre-
constitution period showing that he belongs to a tribal
community, there is no reason to discard his claim as
prior to 1950, there were no reservations provided to the
Tribes included in the ST order. In such a case, a
reference to Vigilance Cell is not warranted at all.
17. In the present case, such is not the case. On
the contrary the Committee ought to have considered that
on the basis of the similar documents, the Tribe Validity
Certificates are granted to cousin grandfather and cousin
uncle of petitioners. The Committee must be mindful of
the fact that it is not an appellate authority to test
correctness of order of validation issued by this court after
scrutiny of the material. The Committee, while examining
the claim of petitioners, ought to have considered that the
Tribe Validity Certificates are granted to the family
members of petitioners in view of judgments of this court
after verifying and scrutinizing the documents. The said
judgments have attained finality and the same were not
.....15/-
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challenged. The Tribe Validity Certificates granted to
family members of petitioners can only be ignored in the
event of receiving evidence that the Tribe Validity
Certificates have been obtained by playing a fraud. It is
only in such cases, in case fraud is established, the
Committee can re-examine the facts.
18. In the present case, it is nowhere contended by
the Committee that earlier Tribe Validity Certificates
granted are either obtained by fraud or by coercion. The
Committee must understand that such approach would
result into anomaly in the family if they have different
social status. The Committee is under obligation to rely
upon the Tribe Validity Certificates granted in view of the
judgments of this court and cannot adopt an approach as
it is sitting in appeal over the judgment of this court.
19. Learned Assistant Government Pleader Shri
N.S.Autkar for respondent No.1, also stressed that
petitioners could not prove affinity test. He placed
reliance on the judgment of the Honourable Apex Court in
.....16/-
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the case of Shilpa Thakur vs. State of Maharashtra,
reported in 2009(3) Mh.L.J. 995 wherein the Full Bench
has held that affinity test is an integral part of
determination of correctness of claim of caste certificate.
The said judgment was referred by the Honourable Apex
Court in the case of Vijay Kumar vs. State of Maharashtra
and ors, reported in (2010) 14 SCC 489 wherein
certificate issued to uncle of appellant was found to be of
no use and as such certificate is/was not found to be
validated by the Committee. However, in another
judgment in the case of Anand vs. Committee for Scrutiny
and Verification of Tribe Claims and ors, reported in
(2012)1 SCC 113 wherein the judgment in the case of
Shilpa Thakur supra was referred to, it was held that the
affinity test is not a litmus test and that document of pre-
constitutional era is of highest probative value in the eyes
of law. The same view is reiterated by the Honourable
Apex Court in the recent judgment in the case of
Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti vs.
State of Maharashtra and ors supra wherein in
.....17/-
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paragraph No.25 it is held that the Vigilance Cell, while
conducting an affinity test, verifies the knowledge of the
applicant about deities of the community, customs,
rituals, mode of marriage, death ceremonies etc. in
respect of that particular Scheduled Tribe. By its very
nature, such an affinity test can never be conclusive. It is
further held that question of conduct of the affinity test
arises only in those cases where the Scrutiny Committee
is not satisfied with the material produced by the
applicant. While concluding, the Honourable Apex Court
held that affinity test will not be conclusive either way.
When an affinity test is conducted by the 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 for deciding the
tribe validity claim and in short, affinity test is not a
litmus test to decide a tribe claim and is not an essential
part in the process of the determination of correctness of
a caste or tribe claim in every case.
.....18/-
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20. In the light of the above, when question as to
whether affinity test is an integral part of determination of
correctness of claim and when petitioners had submitted
number of documents which were pre-constitutional
having high probative value showing their tribe as
"Thakur" and when family members hold a tribe validity
and when tribe "Thakur" has been included in the
Presidential Order 1950 as "Scheduled Tribe", we are of a
considered view that the tribe claim of petitioners ought
to have been considered by the Committee giving
appropriate weightage to Tribe Validity Certificates issued
to the family members by orders of this court so also the
pre-constitutional documents. The co-ordinate bench of
this court in the case of Apoorva d/o Vinay Nichale vs.
Divisional Caste Certificate Scrutiny Committee NO.1 and
ors, reported in 2001(6) Mh.L.J. 401 has held that where
tribe claim of a person has been scrutinized and accepted
and one Committee has given a finding about validity of
his tribe, another Committee ought not to refuse the
.....19/-
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same status to his/her blood relatives who apply
subsequently.
21. We are aware regarding fact that "Thakur"
community also belongs to upper caste. However, when
caste "Thakur" is mentioned in the pre-constitution
documents and the said caste has been included in the
Scheduled Tribe Category and when the Caste Validity
Certificates are granted to the family members, the claim
of petitioners requires consideration. The Committee,
therefore, committed an error invalidating the caste claim
of petitioners.
22. In the light of the above facts and
circumstances, the petition deserves to be allowed by
directing the Committee to issue Caste Validity
Certificates to petitioners as belonging to "Thakur"
Scheduled Tribe. We accordingly, pass following order:
ORDER
(1) The writ petition is allowed.
.....20/-
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(2) The order dated 6.9.2022 passed by respondent No.1
- Scrutiny Committee, Amravati invalidating tribe claim of
petitioners as belonging to "Thakur" Scheduled Tribe is
quashed and set aside.
(3) It is declared that petitioners belong to "Thakur"
Scheduled Tribe and the Committee shall, within a period
of four weeks from receipt of copy of this order, issue
Caste Validity Certificates to petitioners accordingly.
(4) Till petitioners receive Caste Validity Certificates, they
are free to refer copy of this order to indicate that they
have been held entitled to receive Validity Certificates as
belonging to "Thakur" Scheduled Tribes.
The petition stands disposed of.
(URMILA JOSHI-PHALKE, J.) (AVINASH G.GHAROTE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 29/11/2023 17:49:29
