Bombay High Court
Omkar Mahesh Pawar And Another vs The State Of Maharashtra And Others on 16 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:988-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 13567 OF 2021
1. Omkar S/o. Mahesh Pawar
Age : 23 Years, occu. Student
2. Smita D/o. Mahesh Pawar
Age : 27 Years, Occu. Student
Both R/o. Narayangaon, Tq. Paithan,
Dist. Aurangabad.
Presently R/o. Nandurkhi Road, Vitthalwadi,
Shirdi, Tq. Rahata, Dist. Ahmednagar. ...Petitioners
Versus
1. The State of Maharashtra
Department of Tribal Development,
Mantralaya, Mumbai - 32.
Through its Secretary.
2. The Scheduled Tribe Certificate
Scrutiny Committee, Aurangabad
Division, Aurangabad.
Through its Member Secretary.
(Copies for the Respondent Nos.01 & 02
to be served on the Government
Pleader, High Court of Judicature of
Bombay, Bench at Aurangabad.
3. The Principal,
Haribhai V. Desai College of Arts,
Science 7 Commerce,
Desai Brothers Vidya Bhavan,
596, Budhwar Peth, Pune,
Tq. & Dist. Pune.
...Respondents
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Mr. S.C. Yeramwar, Advocate for petitioners
Mr. P. S. Patil, AGP for respondent Nos. 1 and 2
CORAM : SMT. VIBHA KANKANWADI
& S.G. CHAPALGAONKAR, JJ.
Reserved On : 8.1.2024
Pronounced On : 16.1.2024
JUDGMENT [ PER S.G. CHAPALGAONKAR, J] :-
1. Heard. Rule. Rule made returnable forthwith. By consent
of parties, petition is heard and decided finally at admission stage.
2. The petitioners impugn the order dated 1/12/2021 passed
by the Scheduled Tribe Certificate Scrutiny Committee, Aurangabad,
thereby invalidating the tribe claim of the petitioners to be belonging to
"Thakar Schedule Tribe" community which has been included in the list
of Scheduled Tribes at Sr. No.44.
3. Mr. S.C. Yeramwar, learned advocate appearing for the
petitioners would submit that the petitioners have been granted the Caste
Certificate as belonging to Thakar Scheduled Tribe by the Deputy
Collector (Planning) Aurangabad by following the due procedure of law.
While petitioners were pursuing their education, their caste certificates
were forwarded to the respondent No.2 Committee. The proposals of the
petitioners were referred to the Vigilance Cell for inquiry. The report of
the Vigilance Inquiry dated 1.12.2015 was furnished to the Committee
which stipulates favourable remarks to the petitioners. However, for no
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good reasons the Committee sought fresh Vigilance Inquiry report.
Consequently, the 2nd Report dated 25.11.2021 is procured. It was served
upon the petitioners alongwith the Show cause notice dated 26.11.2021.
In response to show-cause notice, petitioners appeared before the
Committee and submitted detailed reply dated 29.11.2021 offering
comments regarding remarks in 2nd report of the Vigilance Cell.
However, the Committee, relying upon adverse remarks in the 2 nd report,
invalidated the caste claim of the petitioners.
Mr. Yeramwar, Learned Advocate for petitioners would point
out that no reasons are assigned for making second reference to the
Vigilance Cell when the first report throwing light on all the relevant
aspects was available with the Committee. He would submit that the
procedure adopted by the Committee is contrary to Rule 12(7)(8) of the
Maharashtra Scheduled Castes, De-notified Tribes, (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes and Special Backward Category
(Regulation of Issuance and Verification of) Caste Certificate Rules, 2012.
(Hereinafter referred to as "the SC Rules"). He would further submit
that the petitioners have submitted the record right from year 1951 in
respect of the blood relations, showing caste entries of Thakar. However,
by recording flimsy reasons the caste claim of the petitioners has been
invalidated.
4. Per contra, Mr. P.S. Patil, the learned AGP, vehemently
opposes the petition. He would submit that the Committee is
empowered to refer any caste claim to the Vigilance Cell and obtain
necessary information. Although first report of the Vigilance Cell was
available in the file, the Committee doubted the correctness of the
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remarks and again referred the matter to the Vigilance Cell. The 2 nd
report of the Vigilance Cell specifies that the father of the petitioners
failed to establish ethnological and anthropological connections with the
Thakar- Scheduled Tribe.
5. Mr. Patil would point out that the Vigilance Report makes
reference to various contra entries showing the caste of blood relations of
the petitioners as 'Maratha Thakur'. He would submit that surnames of
some of the blood relatives doesn't resemble to Thakar-Scheduled Tribe.
He would submit that most of the blood relatives of the petitioners are
speaking Marathi language. None of the blood relatives of the
petitioners has been granted caste validity till this date. He would,
therefore, submit that the Committee has rightly invalidated the caste
claim of the petitioners. Mr. Patil would rely upon certain observations
made by the Supreme Court in the case of Maharashtra Adivasi Thakur
Jamat Swarakshan Samiti Vs. The State of Maharashtra and others (Civil
Appeal No. 2502 of 2022 ) dated 24th March, 2023.
6. Having considered the submissions advanced, upon perusal
of the record it can be gathered that the petitioners, in support of their
claim, produced several documents. The oldest is regarding the entries of
blood relatives in National Census of 1951 which depicts entry of
Thakar caste against each name. The petitioners have also produced the
school record of cousin aunt, cousin grandfather, father etc. The entries
right from the year 1962 onward depict caste entry as "Thakar". Perusal
of the reasoning adopted by the Committee shows that the document of
1951 regarding Census record has been discarded giving reason that the
entries of "Thakar" are made with different ink and handwriting.
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Pertinently, there is no specific observation regarding manipulation of
documents.
7. The second set of documents is regarding the School Record
right from the year 1962 in respect of cousin grandfather Ganga Baburao
Thakar, Cousin aunt - Rukhmini Savitra Pawar and so on. There is no
dispute as regards the relationship of the petitioners with the aforesaid
blood relations. The Committee discarded the said evidence only for the
reason that the documents are post-presidential order. The Committee
observed that the entries in respect of some other persons from village of
petitioners who are alleged to be from the same community, depict the
entry of their caste as "Maratha". Even the surnames of such persons do
not pertain to "Thakar" caste. Pertinently, there is nothing on record to
indicate that the persons with contra entries are blood relatives of the
petitioners. The observation of committee in this regard appears nothing
more that surmise. We do not find any reason to discard the evidence in
the nature of entries of 1951 in the Census record depicting the caste of
the petitioner's grandfather and other blood relations. The oldest entry
of Ganga Babu Thakar in the school is dated 7.8.1962. Thereafter, there
are school record entries relating to cousin aunt Rukhmini Savitra Pawar
dated 24.6.1966. If this record is taken into account alongwith Census
entries of 1951, there is no reason to discard the claim of the petitioner
as belongs to "Thakar" Scheduled Tribe.
8. The Committee observed that the adverse remarks in second
report of the Vigilance Cell dated 25.11.2021 are controverted by the
petitioners through their reply dated 29.11.2021. Admittedly,
Committee had procured the First Vigilance Cell Inquiry Report dated
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1.12.2015. The remarks in first report accepts the information furnished
by the petitioners' father in respect of traits and characteristics of the
community. The Research Officer also approved said information to be
consistent with the Thakar Scheduled Tribe. However, it could not be
gathered from the record as to why the Committee requisitioned the
second Vigilance enquiry . Apparently, no reasons are recorded for
calling the second report from the Vigilance Cell. Surprisingly, the
findings recorded in earlier report have been reversed in the second
report. Although there is no prohibition to obtain subsequent vigilance
report, however before doing so it is fairly expected from the quasi-
judicial authority like the Committee to at least record brief reasons for
its dissent with the earlier report. The scheme under Rule 12,
particularly, sub-clause (7) and (8) would depict that once the vigilance
cell report is favourable, the Committee shall normally rely upon the
same and issue validity certificates. However, when the remarks are
adverse to the applicant, the report needs to be served upon him calling
his explanation against such remarks. In the present case, earlier report
dated 1.12.2015 was never served upon the petitioner. The petitioners
could obtain the same only through an application tendered under the
Right to Information Act, 2005. Such modus adopted by the committee
cannot be justified.
9. The Committee has given one more reason for invalidation
of the caste claim that the place of the petitioners' residence is beyond
the scheduled area of Thakar Scheduled Tribe. Pertinently, the area
restriction has been removed by the amendment of 1976. The issue is no
more res-integra in view of the decision of the Supreme Court in the
matter of Jaywant Dilip Pawar vs. State of Maharashtra (Civil Appeal No.
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2336 of 2011 decided on 8.3.2017) as well the judgment of the Division
Bench of this Court in the matter of Sanjivkumar Wanhkede vs. State of
Maharashtra reported in 2019(5) Bom.C.R. 355.
10. This Court referred to the observations in the earlier
judgment in the case of Motilal Namdeo Pawar Vs. Scheduled Tribe
Certificate Scrutiny Committee dated 22.12.2017 to observe that the
Committee's observation regrading original area of the concerned tribe
are unacceptable in view of the removal of area restrictions. The
reasoning of the Committee in this regard is fallacious. It is not
expected that the person belonging to a particular tribe would continue
to remain in the original area in view of the advent of technology and
science so also avenues of transport. Therefore third reason given by the
Committee can not be sustained in law.
11. So far as the adverse remarks pertaining to affinity test is
concerned, the Supreme Court of India in the matter of Anand Katole vs.
Committee for Scrutiny and Verification reported in 2011(6) Mh. L.J.
(SC) 191 observed that the documentary evidence has greater probative
value. However, while applying the affinity test, a cautious approach has
to be adopted. A few decades ago, when tribes were immune to cultural
development, the affinity test could serve as a determinant factor.
However, with modernization, migration and contact with other
communities, new traits are adopted by the scheduled tribes, which need
not essentially match with the traditional characteristics of the tribe.
Hence, the affinity test may not be regarded as Litmus test to establish
link of the applicant with the scheduled tribe.
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In view of the aforesaid observations, adverse remarks in the
second vigilance cell report can be ignored.
12. We are, therefore, convinced that considering the entries of
the year 1951 in the Census record, particularly, in respect of Bala Bapu
- cousin uncle of the petitioners and cousin aunts as well as school
records of blood relations right from the year 1962, particularly, in
relation to Ganga Bapu Thakar (i.e. cousin grandfather dated 7.8.1962)
and further entries, we have no hesitation to hold that the petitioners
have established their claim to be belonging to Thakar Scheduled Tribe
and further hold that the decision of the Committee is unsustainable.
Hence, we pass the following order :-
ORDER
[i] Writ petition is allowed;
[ii] The impugned order passed by the Respondent No.2 Scrutiny
Committee dated 1.12.2021 invalidating the Tribe Claim of the
petitioners is hereby quashed and set aside;
[iii] The respondent No.2 shall issue the Certificate of Validity in favour
of the petitioners to be belonging to "Thakar" Scheduled Tribe within a
period of three months from the date of receipt of this order.
[iv] Rule made absolute in above terms with no orders as to costs.
[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J]
grt/-
Signed by: G R TOKE
Designation: PS To Honourable Judge
Date: 18/01/2024 12:12:39
