Bombay High Court
Shivadas Vishvasrao Bhamare vs The State Of Maharashtra And Others on 7 May, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:9909-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6691 OF 2014
SHRI SHIVADAS S/O. VISHVASRAO BHAMARE
Age 40 years, Occ. Service as Assistant Teacher,
R/o. Plot No.52, Telephone Colony,
Gondur Road, Deopur, Dhule.
.. 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 Executive Magistrate,
Nandurbar.
4. Dhule Education Society,
Office at J.R. City High School,
Near S.P. Office, Sakri Road,
Dhule,
through its Secretary.
5. The Head Master,
R.K. Chitale Secondary School,
Deopur, Dhule.
6. The Education Officer (Secondary)
Zilla Parishad, Dhule.
.. Respondents.
Mr. A.S. Golegaonkar, Advocate for petitioner.
Mr. K.S. Patil AGP for respondent Nos. 1, 3 and 6
Mr. A.B. Tele, Advocate for respondent No.4
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Respondent Nos. 4 and 5 served
CORAM : SMT. VIBHA KANKANWADI
& S.G. CHAPALGAONKAR, JJ.
RESERVED ON : 19TH APRIL, 2024.
PRONOUNCED ON : 7th MAY, 2024.
JUDGMENT ( PER S.G. CHAPALGAONKAR, J.]
1. Rule. Rule made returnable forthwith. Heard finally by
consent of learned advocates for respective parties.
The petitioner has approached this Court under Article 226
of the Constitution of India impugning the order dated 30.6.2014 passed
by Scheduled Tribe Scrutiny Committee - Respondent No.2, thereby
invalidating the claim of the petitioner for "Thakur Scheduled Tribe".
2. Mr. A. S. Golegaonkar, learned advocate for the petitioner
submits that the petitioner belongs to "Thakur Scheduled Tribe"
community. On 25.9.1992 competent authority i.e. Executive Magistrate,
Nandurbar issued the caste certificate to him. In year 1998, he has been
appointed as Assistant Teacher with respondent No.4. Since, 1.7.2000
his services have been confirmed. The School management had
forwarded the proposal to committee for verification of petitioner's Tribe
claim, as his appointment was made from S.T. Category. It was
accompanied with School Admission Record of his cousin grandfather for
years 1919, 1923, 1927 and 1933. The caste validities issued in favor of
paternal relatives were also made part of the proposal. The Committee
was pleased to refer matter to the Vigilance Inquiry. Report of such
inquiry is submitted on 3.1.2004 to the Committee. Finally, the
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Committee vide the impugned order, invalidated the tribe claim of the
petitioner, mainly on the ground that forefathers of the petitioners were
not resident of the original geographical area of "Thakur" Schedule Tribe
community and that petitioner failed in the affinity test.
3. Mr. Golegaonkar submits that area restriction has been
removed by enactment of the Parliament in the year 1976. Affinity test
cannot assume significance, when impeccable evidence to support the
petitioner's claim, in the nature of pre-constitutional record of paternal
blood relatives is placed before committee in support of Tribe status of
petitioners family. He would, therefore, submit that impugned order is
unsustainable and liable to be quashed and set aside. Mr. Golegaonkar
would further urge to direct the Committee to issue Tribe validity to the
petitioner.
3. Mr. K.S. Patil, learned AGP appearing for respondent NO.1, 3
and 6 opposes the petition, He would submit that the Committee has
considered the documentary evidence tendered by the petitioner
alongwith report of the Research Officer. The petitioner had failed to
establish his claim for "Thakur" Scheduled Tribe. The pre-constitutional
school admission record of relatives depicts entries either "Thakur" or
"Hindu Thakur", which is different than "Thakur Scheduled Tribe". He
would further submit that the blood relatives of the petitioner were
admitted to schools right from 1919 as they were part of the advanced
society, which is not the character of the Thakur Scheduled Tribe. Mr.
Patil would further submit that once the Committee has formed opinion
based on material on record coupled with vigilance report and remarks of
Research Officer, this Court may not disturb the finding of the
Committee, even though the different view may be possible.
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4. We have considered the submissions advanced on behalf of
the learned advocate appearing for the respective parties. We have
perused the record tendered into service. The petitioner claims that he
belongs to "Thakur Scheduled Tribe" community and in support of his
contention, he relied on the pre-constitutional school record and validity
certificates issued in favour of his blood relatives. For the purpose of
better understanding of the relationship of the petitioner with the validity
holders and school admission record in respect of the blood relatives, it
would be appropriate to refer to the genealogy which is made part of the
record of Committee in this claim.
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5. The impugned order refers to various documents relied upon
by the petitioner. List of such documents is given in the 2 nd paragraph of
the impugned order. The document at Sr. No 28 is school admission
record of Shekhar Chindha Thakur, i.e. grandfather of the petitioner. The
entry pertains to his school admission dated 19.7.1923 which records
caste as Thakur. The second document is at Sr. No. 29 i.e. School Leaving
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Certificate of Shankar Chindha Thakur, dated 17.10.1978 which records
the caste as Thakur. The document at Sr. No. 67 is School Leaving
Certificate of Thansing Chhindha Thakur dated 18.2.1933, in respect of
grandfather of the petitioner. The document at Sr. Nos. 70 and 72 are
school admission and school leaving certificates of Jamsing Dala Thakur
and Dajbhau Narsingh Thakur i.e. cousin grandfathers of the petitioner.
Those entries are dated 2.1.1919 and 4.4.1941 respectively. The
Committee referred the aforesaid documents in its order, however,
declined to rely upon the same in support of Tribe claim. In para No. XVI
of the order, committee refused consideration to those documents
drawing adverse inference that petitioners family was economically and
educationally advanced since before independence, inconsistent of status
of 'Thakur Schedule Tribe'.
6. We find that such approach of the Committee can not be
countenanced. When the petitioner has relied upon the pre-
constitutional school admission record of the blood relatives, committee
could not have taken adverse note of it, treating them from advanced
class of society. There cannot be straight jacket formula to appreciate the
pre-constitutional documents. The Supreme Court of India in the case of
" Ku. Madhuri Patil Vs. Additional Commissioner reported in (1994) 6
SCC 241, observed in para. 10 as under :-
"10. The entries in the school register preceding the
Constitution do furnish great probative value to the
declaration of the status of a caste. Hierarchical caste
stratification of Hindu social order has its reflection in all the
entries in the public records. What would, therefore, depict
the caste status of the people inclusive of the school or
college records, as the then census rules insisted upon.
Undoubtedly, Hindu social order is based on hierarchy and
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caste was one of the predominant factors during pre-
constitutional period. Unfortunately, instead of dissipating
its incursion it is being needlessly accentuated, perpetrated
and stratification is given legitimacy for selfish ends instead
of being discouraged and put an end to by all measures,
including administrative and legislative. Be it as it may,
people are identified by their castes for one or the other is a
reality. Therefore, it is no wonder that caste is reflected in
relevant entries in the public records or school or college
admission register at the relevant time and the certificates
are issued on its basis."
Similar view is reiterated in recent judgment in case of Maharashtra
Adivasi Swarakshan Samiti Vs. State of Maharashtra reported in
2023(2) Mh.L.J. 785. We are therefore of considered view that approach
of committee is fallacious in ignoring important documentary evidence
relied by petitioner which is having great probative value.
7. The petitioner has also placed reliance on the caste validity
certificates issued in favour of his blood relatives supported by their
affidavits. The Committee has issued validity to Pankaj Bhikajirao Thakur
and Mahesh Subhash Thakur, who are cousins of the petitioner. The
other cousin of the petitioner, namely, Yuvraj Rajabhau Thakur, has been
granted validity under order of this Court passed in W.P. No. 5731 of
2003. All those documents were made part of the record before the
Committee when petitioner's claim was considered. However, the
committee refused consideration to those validities merely observing that
each claim has to be decided independently and merely because blood
relatives of the petitioners are conferred validity, petitioner can not claim
that his claim is established. The Committee has further observed that
caste validity certificates issued in favour of Mahesh Bhamre and Yuvraj
Bhamre based on observations of the Supreme Court of India without
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putting correct interpretation of the ratio in said judgments. We find that
observations of the committee cannot be countenanced.
8. Pertinently, committee has not formed opinion that validities
granted in favour of petitioner's blood relatives are product of
misrepresentation, fraud or suppression of material facts. Those validity
certificates are still intact. The Committee has not issued show cause
notices to the validity holders nor has proposed to cancel any such
validity. The committee no where controverted the fact that the validity
holders are blood relatives of the petitioner. In that view of the matter, it
would be appropriate to refer to certain observations of Division bench of
this Court in the case of Apoorva Nichale Vs. Divisional Caste Certificate
Scrutiny Committee 2010(6) Mh.L.. 401, wherein the this Court observed
thus :-
"7. We thus come to the conclusion that when during the
course of enquiry the candidate submits a caste validity
certificate granted earlier certifying that a blood relation of
the candidate belongs to the same caste as that claimed by
the applicant, the committee may grant such certificate
without calling for Vigilance Cell Report. However, if the
committee finds that the earlier caste certificate is tainted by
fraud or is granted without jurisdiction, the Committee may
refuse to follow and may refuse to grant certificate to the
applicant before it."
In the present case, the observations of the committee
nowhere indicate that the Committee doubted validity certificates
granted in favour of blood relatives of the petitioner for reasons like
fraud or suppression of material facts etc. Therefore committee couldn't
have ignored such a significant evidence relied by petitioner.
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9. Although committee has observed that the petitioner could
not clear the affinity test or that family of the petitioner is not resident of
the original area of Thakur Scheduled Tribe, that itself cannot constitute
ground to discard Tribe claim. The Supreme Court of India in the matter
of "Maharashtra Adivasi Thakur Samaj Swarakshan Samiti vs. State of
Maharashtra" reported in AIR 2023 SC 1657, in para. 24 and 25,
observed thus :-
25.. "Now, we come to the controversy regarding the affinity
test. In clause (5) of Paragraph 13 of the decision in the case of Kumari
Madhuri Patil1 it is held that in the case of Scheduled Tribes, the
Vigilance Cell will submit a report as regards peculiar anthropological
and ethnological traits, deities, rituals, customs, mode of marriage,
death ceremonies, methods of burial of dead bodies etc. in respect of the
particular caste or tribe. Such particulars ascertained by the Vigilance
Cell in respect of a particular Scheduled Tribe are very relevant for the
conduct of the affinity test. 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. If the applicant has stayed in bigger
urban areas along with his family for decades or if his family has stayed
in such urban areas for decades, the applicant may not have knowledge
of the aforesaid facts. It is true that the Vigilance Cell can also question
the parents of the applicant. But in a given case, even the parents may be
unaware for the reason that for several years they have been staying in
bigger urban areas. On the other hand, a person may not belong to the
particular tribe, but he may have a good knowledge about the aforesaid
aspects. Therefore, Shri Shekhar Naphade, the learned senior counsel, is
right when he submitted that the affinity test cannot be applied as a
litmus test. We may again note here 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".
10. The Supreme Court has consistently observed that the
affinity test is not a litmus test. Further, the question of conduct of
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affinity test arises only in those cases, where the scrutiny committee is
not satisfied with the material produced by the applicant. In that view of
the matter, the observations of the Committee, simply relying upon
adverse remarks of the Research Officer, would not be sufficient to
dislodge petitioner's claim which is otherwise supported by pre-
constitutional documentary evidence. In such a case, report of the
Vigilance Cell as regards anthropological and ethnological traits, deities,
rituals, customs, mode of marriages, surnames etc. may be relevant but
cannot form the sole basis to rule upon the claim of the petitioner. As
observed in aforesaid paragraphs, the petitioner placed reliance on the
pre-constitutional documents in the form of school admission record of
his grandfather and cousin grandfathers which clearly indicate that they
belong to Thakur community. Apart from pre-constitutional evidence,
the competent committee had already conferred validity certificates in
favour of the paternal relatives of the petitioner. In light of impeccable
evidence on record, although, observations of the Research Officer as
regards to the affinity test are not favourable to the petitioner, the
Committee could not have declined validity to petitioner.
11. The next point that Committee insisted upon is, as to the
area restriction. It is not in dispute that the area restriction has been
removed in the year 1976 vide Scheduled Castes Scheduled Tribes Order
(Amendment Act) 1976 dated 18.9.1976 and merely because the
forefathers of the petitioner were not resident of the area identified as
original residence of the Thakur Scheduled Tribe, the claim can not be
negated. Unfortunately, in spite of the authoritative pronouncements on
this aspect by the Supreme Court of India as well as this Court, similar
reasons are incorporated for rejecting the claim. At this stage reference
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can be given to observations of Division Bench of this court in the
matter of Madhuri Nitin Jadhav Vs. State of Maharashtra reported
in 2014(3) Mh.L.J. 910 in para. 20 and 21 which reads as under :-
"20. Apart from the broad parameters so announced and
declared and as referred by and in the judgments, the fact
whether the claimant/applicant is tribal or not, the requisite
test, considering the basic factors like Primitive Traits,
District Culture, Geographical Isolation, Distinct dialect,
Animism, Clean systems, Shyness of nature. Backwardness
in view of the rites of passage, life cycle events, hearing
rites, construction rituals and agriculture and hunting
rituals, also required to be considered. But, this does not
also mean that in cases where, for various reasons, the
applicants' family or forefathers left the original areas and
shifted to the other parts of the State of Maharashtra are not
entitled for the benefits of Scheduled Tribes. This, in our
view, is impermissible approach as it denies their
constitutional rights.
12. In view of the aforesaid observations, the impugned order
can not be sustained in law. Hence, we proceed to pass the following
order :-
ORDER
[a] Writ petition is allowed;
[b] The impugned order dated 30th June, 2014 passed by the
respondent No.2 - Scheduled Tribe Certificate Scrutiny Committee is
hereby quashed and set aside;
[c] The respondent No.2 Committee shall forthwith issue
validity certificate in favour of the petitioner as belonging to "Thakur"
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Scheduled Tribe.
[d] Rule is made absolute in above terms. No costs.
[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J]
grt/-
