Bombay High Court
Himanshu S/O Ganesh Pawar vs The State Of Maharashtra, Thr. The ... on 2 February, 2024
Author: M.S. Jawalkar
Bench: Avinash G. Gharote, M.S. Jawalkar
2024:BHC-NAG:1345-DB
wp 5102-2023.odt 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5102/2023
Himanshu s/o Ganesh Pawar
aged 20 years, Occu. Student, R/o
Jagdamba Nagar, Khamgaon Road,
Shegaon, Tah. Shegaon, Dist.
Buldana.
....PETITIONER
...VERSUS...
1. The State of Maharashtra, through
Secretary, Department of Tribal
Development, Mantralaya, Mumbai.
2. The Chairman, the Schedule Tribe
Caste Certificate Verification
Committee, Amravati Division, Dist.
Amravati.
3. The Principal, B.K. Birla College of
Arts, Science & Commerce, Kalyan,
Dist. Thane.
...RESPONDENTS
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Shri G.R. Kothari, Advocate for petitioner
Mrs S.S. Jachak, Addl. G.P. for respondent Nos.1 and 2
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CORAM : AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ..
DATE OF RESERVING THE JUDGMENT : 31/01/2024
wp 5102-2023.odt 2/13
DATE OF PRONOUNCING THE JUDGMENT: 02/02/2024
JUDGMENT (PER : SMT. M.S. JAWALKAR, J.)
Heard.
2. Rule. Rule made returnable forthwith. Heard finally with
the consent of parties.
3. The present petition is filed by the petitioner seeking
direction for quashing and setting aside the impugned order
passed by respondent No.2- Scheduled Tribe Caste Certificate
Verification Committee, Amravati in respect of claim of petitioner.
The petitioner further seeks declaration that the petitioner belongs
to 'Thakur' Scheduled Tribe and further direction to the
respondent No.2 for issuance of tribe validity certificate to the
petitioner.
4. It is contended by the petitioner that petitioner belongs to
'Thakur' Scheduled Tribe. He was admitted to respondent No.3
College to pursue B.Sc. (IT) Degree Course. The tribe claim of the
petitioner was referred before respondent No.2- Scrutiny
Committee for verification. The petitioner submitted relevant
documents in support of his tribe claim including pre-
independence documents. The Sub Divisional Officer, Malkapur
after perusal of documents held that petitioner belongs to 'Thakur'
Scheduled Tribe and thereby issued Scheduled Tribe Certificate.
The petitioner along with his application for verification of his
tribe claim filed several pre-independence documents pertaining
to his ancestors before the Scrutiny Committee but ignoring all
such documents and position of law prevailing today, the
Committee invalidated the tribe claim of the petitioner on the
ground that affinity was not established.
5. We have perused impugned order passed by
Schedule Tribe Caste Certificate Verification Committee,
Amravati, (hereinafter referred as 'Scrutiny Committee'). The
record of Scrutiny Committee is also placed by learned Assistant
Government Pleader on record. With the assistance of learned
Assistant Government Pleader, we have perused the record. The
petitioner claims to belonging to 'Thakur' Scheduled Tribe, which
is an entry at Sr. No.44 of the Constitution (Scheduled Tribes)
Order, 1950.
6. On perusal of the police vigilance cell, it appears that it is
favourable to the petitioner all the entries except one shows that
the blood relatives of the petitioner belong to 'Thakur' Scheduled
Tribe. However, as per vigilance, there is no affinity to the tribe
'Thakur'. On that sole basis, the claim of the petitioner was denied.
So far as entries are concerned, the oldest entry in our considered
opinion, will prevail over the subsequent entries. The said entry is
of 25/06/1929, wherein date of birth is shown as 29/09/1914.
There are certain documents which appear at page No.44 of the
petition. There is remark of Enquiry Officer in paragraph No.2,
wherein he has mentioned that in the entry of Kashinath Sadashiv,
his tribe is mentioned as 'Thakur Pawar' and he also added that
the Head Master of the said school i.e. Zilla Parishad Prathamik
Marathi Shala, Vadner Bholji, Tah. Nandura, District Buldhana
gave remark in writing that in the tribe mentioned as 'Thakur
Pawar' and 'Thakur' is written in different ink. However, on
perusal of record placed before the Court at page 114, there is no
such remark by any of the Head Master in writing. As such, there
is no basis in allegation that 'Thakur' is written in different ink. So
far as affinity test is concerned, there are various judgments. In
view of these judgments, affinity test cannot be applied when
there are sufficient pre-independence documents having provative
value.
6. Learned Counsel for petitioner relied on various
judgments including judgments:
1) Priya Pramod Gajbe Vs. State of Maharashtra and
others, 2023 SCC OnLine SC 909
2) Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti
Vs. The State of Maharashtra and ors. In Civil Appeal
3) Jaywant Dilip Pawar Vs. State of Maharashtra and ors.,
2018 (5) All MR 975.
7. On perusal of record following documents appear to be
prior to independence. There is no dispute about genealogical tree
produced on affidavit by the petitioner. Following documents of
pre-independence are there on record:
Name Relation Document Date of Caste
document
Sadashiv Great-grand- School leaving Date of Birth is Thakur
Vithoba father certificate dated 29/09/1914,
01/07/2021 date of
admission in
school is
25/06/1929 and
leaving of
School on
16/07/1930
Prabhakar Grandfather School leaving Date of Birth is Thakur
Sadashiv certificate dated 25/01/1945 and
01/07/2021 leaving of
School on
30/04/1961
Kashinath Cousin School leaving Date of Birth is Thakur
Sadashiv grandfather certificate dated 16/02/1942, Pawar
01/07/2021 date of
admission is
11/07/1955 and
leaving of
School on
28/07/1956
Vasant Sadashiv Cousin School leaving Date of Birth is Thakur
grandfather certificate dated 05/01/1947,
01/07/2021 date of
admission is
15/04/1953 and
leaving of
School on
27/02/1954
Vatsala Cousin School leaving Date of Birth is Thakur
Sadashiv grandmother certificate dated 12/06/1950,
01/07/2021 date of
admission is
09/07/1956 and
leaving of
School on
30/10/1956
8. As such, there are pre-independence documents which
are showing blood relatives of the petitioner belongs to 'Thakur'
Scheduled Tribe. It appears that in some places, the surname of
blood relatives is shown as 'Pawar' but tribe is shown as 'Thakur'.
Only at one place, it was shown as 'Thakur Pawar'. The oldest
entry is thus of the year 1921. As such, it will prevail over all
subsequent entries. Even in subsequent entries, there is mention of
'Thakur'. Only somewhere 'Pawar' is shown as surname but tribe
is shown as 'Thakur'. Only at one place it is shown as 'Thakur
Pawar', however it is of no significance as earliest entry (i.e. pre-
independence document) ancestor of the petitioner shown as
belongs to 'Thakur' then subsequent single entry of petitioner will
not change the tribe 'Thakur' of the petitioner.
9. The learned Counsel for petitioner relied on Mah.
Adiwasi Thakur Jamat Swarakshan Samiti (supra), wherein the
Hon'ble Apex Court held that:
"(b) for the reasons which we have recorded, affinity test
cannot 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 caste validity claim; and
(c) In short, affinity test is not a litmus test to decide a
caste claim and is not an essential part in the process of the
determination of correctness of a caste or tribe claim in
every case."
10. Learned Counsel for petitioner also relied on Priya
Pramod Gajbe (supra), wherein Hon'ble Apex Court relied on
citation in Anand V. Committee for Scrutiny and Verification of
Tribe Claims, (2012) 1 SCC 113, wherein the Hon'ble Apex Court,
in paragraph No.12 read thus:
"22. ..... (i) While dealing with documentary evidence,
greater reliance may be placed on pre-Independence
documents because they furnish a higher degree of
probative value to the declaration of status of a caste, as
compared to post-Independence documents. In case the
applicant is the first generation ever to attend school, the
availability of any documentary evidence becomes
difficult, but that ipso facto does not call for the rejection
of his claim. In fact, the mere fact that he is the first
generation ever to attend school, some benefit of doubt in
favour of the applicant may be given. Needless to add that
in the event of a doubt on the credibility of a document, its
veracity has to be tested on the basis of oral evidence, for
which an opportunity has to be afforded to the applicant;
(ii) While applying the affinity test, which focuses
on the ethnological connections with the Scheduled Tribe,
a cautious approach has to be adopted. A few decades ago,
when the tribes were somewhat immune to the cultural
development happening around them, the affinity test
could serve as a determinative factor. However, with the
migrations, modernization and contact with other
communities, these communities tend to develop and
adopt new traits which may not essentially match with the
traditional characteristics of the tribe. Hence, the affinity
test may not be regarded as a litmus test for establishing
the link of the applicant with a Scheduled Tribe.
Nevertheless, the claim by an applicant that he is a part of
a Scheduled Tribe and is entitled to the benefit extended to
that tribe, cannot per se be disregarded on the ground that
his present traits do not match his tribe's peculiar
anthropological and ethnological traits, deity, rituals,
customs, mode of marriage, death ceremonies, method of
burial of dead bodies, etc. Thus, the affinity test may be
used to corroborate the documentary evidence and should
not be the sole criteria to reject a claim."
As such, there are pre-independence documents showing
tribe of forefather of petitioner as 'Thakur'. There is no reason to
discard his claim. So far as 'Pawar' is concerned, admittedly, it
was shown as surname in some of the documents and only one
document, it was shown as 'Thakur Pawar'.
11. In our considered opinion, this entry is subsequent, it is of
1955. As such, the oldest would prevail over all subsequent
entries. So far as affinity test is concerned, the appellant has stayed
in urban area along with his family for decades. The applicant
may not have knowledge of aforesaid facts. In view of this factual
aspects, the Hon'ble Supreme Court held that the affinity test
cannot be applied as a litmus test. Since the oldest undisputed
document produced by the petitioner relates back to 1929 and
other documents having probative value, the Committee was not
justified in invalidating the claim of the petitioner applying
affinity test and area restriction.
12. The Hon'ble Apex Court in Jaywant Pawar (supra)
held that, area restriction of scheduled tribe in State of
Maharashtra, 'Thakur' community was deleted after Amendment
Act, 1976 was published and all members of 'Thakur' community
are to be treated as Scheduled Tribe. Court further held that
observation of Scrutiny Committee is wholly irrelevant. Appellant
only to establish that they belong to community mentioned at Sr.
No.44 of part-9 of second Scheduled of Amendment Act.
13. In substance, there are documents having probative value
to show the consistent entry of 'Thakur' Scheduled Tribe. As such,
we pass the following order:
ORDER
i) The order dated 04/11/2022 passed by the
Schedule Tribe Caste Certificate Verification Committee,
in Case No.lvk@vtizrl@ve@5/500/EDU/032022/205509,
Amravati is set aside.
ii) It is declared that the petitioner belongs to 'Thakur'
Scheduled Tribe which is entry No.44 in the Constitution
(Scheduled Tribes) Order, 1950.
iii) The Schedule Tribe Caste Certificate Verification
Committee, Amravati shall issue validity certificate to the
petitioner within a period of four weeks from today.
14. Rule is made absolute in above terms. No costs.
JUDGE JUDGE
R.S. Sahare
Signed by: Mrs. Ranjana Sahare
Designation: PA To Honourable Judge
Date: 02/02/2024 18:13:35
