Swaraj S/O Shri Rajeshkumar Gathe vs The S. T. Caste Certificate ...
2023 Latest Caselaw 9717 Bom

2023:BHC-NAG:13872-DB
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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    NAGPUR BENCH : NAGPUR


                                   WRIT PETITION NO. 5898/2023


                    Swaraj S/o. Shri Rajeshkumar Gathe,
                    Aged 18 years, Occ. : Student,
                    R/o. Jijau Nagar, Akola.                        ----PETITIONER

                           --VERSUS--
               1.   The Scheduled Tribe Caste Certificate
                    Scrutiny Committee,
                    Chaprasipura, Amravati
                    through its Member Secretary.

               2.   Common Entrance Test Cell,
                    Govt. Of Maharashtra,
                    through its Commissioner and
                    Competent Authority, 9th Floor,
                    New Excelsior Building, A.K. Naik Road,
                    Fort, Mumbai 400 001.                           ----RESPONDENTS


              Shri R. S. Parsodkar, Advocate for Petitioner.
              Ms. N. P. Mehta, Assistant Government Pleader for Respondent No.1/State.
              Shri Nahush Khubalkar, Advocate for Respondent No.2.

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

DATED : SEPTEMBER 15, 2023

ORAL JUDGMENT (PER : MRS. VRUSHALI V. JOSHI, J.)

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

consent of the learned Counsel for the parties.

2. The petitioner has challenged the order of invalidation of

tribe claim of the petitioner belonging to 'Thakur' Scheduled Tribe. He has 2/7 wp.5898.23-J.odt

submitted the documents along with the validity certificate of the cousin

uncle Rajendra Madhukar Gathe, which was issued by the Scrutiny

Committee as per the judgment passed by this Court. He has filed the

death certificate of great great grandfather Ganu Krushna, wherein the

entry of his death is 18.07.1937, the death certificate of brother of Ganu,

Bhonya, who is cousin great, great grandfather, the entry of his death

recorded as 26.11.1974, the death certificate of cousin great, great

grandfather Shivrao Krushna recorded the entry of his death as

14.07.1950, Extract of Dakhal Kharij Register dated 01.07.1977

mentioning the Caste as 'Thakur', in School Admission Register of the

year 1934 of grandfather of the petitioner Ramkrushna Sampat also

mentioned the caste as 'Thakur'. He also submits that the validity

certificates had issued to his aunt Shreya Sudhakar Gathe and his cousin

uncle Krushna Sudhakar Gathe by the Scrutiny Committee as per the

judgment of this Court.

3. The Police Vigilance Cell has produced one adverse entry of

one Bhona Walda Krushna is shown as Kunbi on 12.05.1913 and another

entry of Sampat Ganu 'Tha-Kunbi' dated 05.02.1934. While giving reply

to the Vigilance Cell, the petitioner has denied said entries stating that

these entries are not correct as the entry of Bhona Krushna is of dead man

and entry of Sampat is 'Thakur' only. He has stated that Vigilance Cell has

not submitted correct report. The enquiry was of a different person and 3/7 wp.5898.23-J.odt

not that of the cousin great grand father Bhonya whereas the said

document relates to Bhona Krushna and the cousin great grandfather is

Bhonya and not Bhona.

4. The petitioner pointed out in his reply that as regards entry of

Bhona Krushna showing the date of birth as 12.05.1913, caste Kunbi and

it just appears similar to name, the vigilance cell says that he is cousin

great grandfather of the petitioner. In this regard, it is submitted that the

said entry is not a cousin great grandfather and actually the cousin great

grandfather is Bhonya and not Bhona. The record that has been obtained

by Vigilance Officer shows that Bhona is blessed with daughter and the

name itself is different than that of cousin great grandfather of the

petitioner i.e. Bhonya and not Bhona. About Sampat Ganu Thakur, the

entry which is produced in the School Zilla Parishad Uccha Prathamik

Shala Palshi mentioned as 'Thakur Kunbi'. As regards the said entry, the

petitioner got Dakhal Kharij Register in which at Serial No.563, clearly

mentioned that Ramkrushna Sampat is admitted to the school and

recorded as 'Thakur' Scheduled Tribe and his date of birth is 01.07.1927

and date of entry in the School as 05.02.1934. In view of Dakhal Kharij

entry the pratigya lekh which is tried to be misused is totally incorrect.

5. The learned Counsel for the petitioner has made submission

that as per the judgment of this Court in case of Apoorva Nichale Vs.

Divisional Caste Scrutiny Committee reported in (2010) 6 Mh.L.J. 401 as 4/7 wp.5898.23-J.odt

the petitioner's 6 blood relatives are given caste validity certificates by

various judgments of this Court, the petitioner is entitled for the validity

certificates. Only on the ground that one person by name Bhona who is

shown as Kunbi on 05.02.1913 though he is not in relation to the

petitioner, the Caste Scrutiny Committee has invalidated his caste claim,

which is not correct. On the ground of the affinity test, the petitioner

relied on the judgment of Maharashtra Adiwasi Thakur Jamat Swarakshan

Samiti Vs. State of Maharashtra and Ors. reported in 2023(2) Mh.L.J. 785

wherein the Hon'ble Apex Court has held that the affinity test is not a

litmus test and the documents of pre-independence era have the highest

probative value in the eyes of law and have to be considered. As the

validity certificates issued to the blood relatives are not considered, the

petitioner has filed this petition challenging the said order.

6. The learned Assistant Government Pleader has opposed the

petition stating that the document of great grandfather Sampat creates

doubt as there is entry of Kunbi and it is mentioned in another Ink. It is

not clear in the Register that he is of 'Thakur' caste. On the other validity

certificates on which the petitioner has relied, some of the relatives their

caste claims are invalidated and the cases are pending before the Hon'ble

Apex Court. Considering the suspicious documents filed on record and

entry of one Bhonya is of Kunbi, the Scrutiny Committee has rightly

rejected the caste claim of the petitioner.

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7.           Heard the learned Counsel.

8. Three validity certificates are on record of the blood relatives

of the petitioner. Said relatives are found in family tree filed by the

petitioner. Only on the basis of the documents of one Bhona, the Scrutiny

Committee has invalidated his claim. The petitioner has denied this entry

stating that the person is named as Bhona while the person in relation is

Bhonya. The document on which the Scrutiny Committee has relied is of

one Sampat. The document of Sampat dated 29.06.1944 clearly mentions

the entry as 'Thakur'. The School Register and other documents the word

'Tha' is mentioned and it cannot be clearly stated that it is Kunbi.

Therefore, without considering the old documents on record, which are of

pre-independence era and having the caste 'Thakur' as well as the validity

certificates issued to the relatives of the petitioner the claim is invalidated.

In view of the decision in Apoorva Nichale (supra), it is proved that the

petitioner belongs to 'Thakur' caste.

9. In the judgment of the Hon'ble Supreme Court in

Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti (supra) 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. As there are validity certificates of blood relatives

and the pre-independence documents also show that the petitioner 6/7 wp.5898.23-J.odt

belongs to 'Thakur' Scheduled Tribe, the writ petition is allowed.

Accordingly, the following order is passed :

I] The order dated 21.08.2023 passed by the Scrutiny

Committee is set aside in the light of the judgment in

Krushna s/o. Sudhakar Gathe Vs. The Vice-Chairman/

Member-Secretary, Scheduled Tribe Caste Certificate

Scrutiny Committee, Amravati [Writ Petition

No.5111/2019 decided on 25.07.2019] and Shreya

d/o. Sudhakar Gathe Vs. The Vice-Chairman/Member

Secretary, Scheduled Tribe Caste Certificate Scrutiny

Committee, Amravati & Ors. [Writ Petition

No.7383/2018 decided on 21.02.2020], it is held that

the petitioner has proved that he belongs to 'Thakur'

Scheduled Tribe.

II] Within a period of three weeks from today, the Scrutiny

Committee shall issue validity certificate to the

petitioner.

III] Till the petitioner is issued the validity certificate, he is

free to rely upon this judgment to indicate that his

claim of belonging to 'Thakur' Scheduled Tribe has

been upheld.

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

costs.

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

RGurnule .

Signed by: Mrs. R.M. MANDADE Designation: PA To Honourable Judge Date: 16/09/2023 16:04:15