Bombay High Court
Samiksha Sunil Thakur vs The State Of Maharashtra Thru Prin. ... on 7 May, 2024
Bench: Nitin Jamdar, M. M. Sathaye
2024:BHC-AS:21936-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8579 OF 2023
Samiksha Sunil Thakur ...Petitioner
Versus
The State of Maharashtra and Ors. ...Respondents
****
Mr. S. S. Panchpor a/w. Mr. G.D. Tamboli for Petitioner.
Ms. Ashwini A. Purav, AGP for Respondent Nos. 1 and 2.
****
Digitally signed
by HUSENBASHA
CORAM: NITIN JAMDAR &
HUSENBASHA RAHAMAN
RAHAMAN
NADAF
NADAF
Date: 2024.05.10
12:15:48 +0530
M.M. SATHAYE, JJ.
DATE : 7 MAY 2024
P.C.:
. By this Petition, the Petitioner has challenged invalidation of
the caste certificate issued to the Petitioner as belonging to Thakar
Scheduled Tribe by the Respondent No. 2 - Scrutiny Committee.
2. The Petitioner applied for and was granted caste certificate
dated 6 December 2013 as belonging to Thakar Scheduled Tribe by
the Competent Authority - Sub Divisional Officer, Kankavli, Dist.
Sindhudurg. The caste certificate was referred by Respondent No. 3
for verification to the Scrutiny Committee. Before the Scrutiny
Committee, the Petitioner produced evidence in support of the caste
claim. The Scrutiny Committee directed an inquiry to be made by
Vigilance Cell. Report of Vigilance Cell was placed on record. After
considering the Vigilance Cell report and material on record the
Husen 2 29 WP-8579-2023.doc
Scrutiny Committee by the impugned order dated 14 June 2023
invalidated the caste claim.
3. We have heard learned counsel for the parties.
4. Perusal of the impugned order would show that though the
Scrutiny Committee, in reasoning paragraph (ii) & (iii) referred to
the documentary evidence produced in support of Petitioner's claim,
finally has placed substantial emphasis, firstly on failure to pass
affinity test and secondly on the basis of area restriction i.e. Petitioner
hailing from Village Harkul Budruk, Kaletharwadi, Taluka Kankavli,
District Sindhudurg. In view of these findings, the documentary
evidence which is produced in support of the Petitioner has not been
properly appreciated.
5. Firstly, as to how much emphasis can be given to affinity test
while deciding the caste claim in respect of Thakur community had
come up for consideration of the Hon'ble Supreme Court in the case
of Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. State
of Maharashtra and Ors.1 It is an admitted position that Thakur,
Thakar, Ka Thakur, Ka Thakar and Ma Thakur, Ma Thakar are also
scheduled tribes and that Thakur is also in the open category.
Therefore, to distinguish between the same, the Scrutiny Committee
in the State of Maharashtra, would place substantial reliance in
ascertaining whether the candidate has shown affinity to the
scheduled tribe and even if the document produced by the candidate
1 2023 SCC Online SC 326
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would show entry of Thakur/Thakar, on the basis of affinity test the
Scrutiny Committee would negate the claim. The Hon'ble Supreme
Court in Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti's
decision, after considering the entire conspectus, recorded the
conclusion in para 38 as under.
"38. Thus, to conclude, we hold that:
(a) Only when the Scrutiny Committee after
holding an enquiry is not satisfied with the
material produced by the applicant, the case can
be referred to Vigilance Cell. While referring the
case to Vigilance Cell, the Scrutiny Committee
must record brief reasons for coming to the
conclusion that it is not satisfied with the material
produced by the applicant. Only after a case is
referred to the Vigilance Cell for making enquiry,
an occasion for the conduct of affinity test will
arise.
(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".
The above conclusion is clear that the affinity test cannot be
conclusive either way and it has to be considered along with all other
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material on record.
6. The second stereotyped reasoning given in the impugned order
is that the Petitioner's original residence is from District Sindhudurg
and this is not the original residence of the Thakar Scheduled Tribe.
It is as far back as the year 2004, that is, two decades ago, that this
Court, in the case of Amol Narayan Wakkar V. State of
Maharashtra2 had set aside this reasoning, which was adopted by the
the Scrutiny Committee. In this case, the petitioners belonged to the
Thakar community. All the petitioners therein were from the
Sindhudurg (erstwhile Ratnagiri) district. The Scrutiny Committee,
relying on certain passages from R.E. Ethoven's "Tribes and Castes of
Bombay Presidency" and extract from the Bombay Gazetteer, had
held that traits of the Thakar community from the erstwhile
Ratnagiri district had not matched with the Thakar Scheduled Tribe
and, therefore, they (the petitioners therein) should be treated as
Nomadic Tribes. The Division Bench noted the entries in Part-IX of
the Second Schedule to the Scheduled Castes Scheduled Tribes
Orders (Amendment) Act, 1976 and observed that there is no doubt
whatsoever that by virtue of the said parliamentary enactment, a
person who is either a Thakur, Thakar, Ka Thakur, Ka Thakar, Ma
Thakur Ma Thakar has been declared to belong to a Scheduled Tribe
within Article 342 of the Constitution. The Division Bench, then
set aside the order of the Scrutiny Committee, holding that the
observations of the Scrutiny Committee attempting to distinguish
2 2005 (1) Mh.L.J. 798
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"Thakar" of erstwhile Ratnagiri District (Sindhudurg) from "Thakar
Scheduled Tribe" are wholly erroneous. Special Leave Petition filed
by the State of Maharashtra against this judgment and order in the
case of Amol Narayan Wakkar was dismissed by the Hon'ble
Supreme Court by order dated 25 August 2005. In the last two
decades, the decision in Amol Narayan Wakkar (supra) has been
consistently followed, and orders of the Scrutiny Committee holding
that the Thakur community in Sindhudurg district cannot be
considered a Scheduled Tribe have been set aside. Despite this
position, the Scrutiny Committee has again in the year 2023, while
passing the impugned order, has taken this ground, which is wholly
unsustainable.
7. In light thereof, the other material which must be considered,
has not been considered in the same rigour, as is expected of the
Scrutiny Committee while deciding a caste claim. Therefore, the
matter will have to be remanded to the Scrutiny Committee for
reconsideration of the caste claim in the light of the law laid down as
stated above, and after considering the totality of the material on
record.
8. In the result, the impugned order dated 14 June 2023 passed
by Respondent No. 2 - Scrutiny Committee, Kokan Division, Thane
is quashed and set aside. The caste claim of the Petitioner is restored
to the file of the Scrutiny Committee. The Scrutiny Committee will
accordingly issue notice to the Petitioner to remain present on the
Husen 6 29 WP-8579-2023.doc
stipulated date, set a time table and subject to earlier time bound
directions and urgent cases, will make endeavour to dispose of caste
claim at the earliest. It is open to the Petitioner to apply to the
Scrutiny Committee for expeditious disposal of the claim.
9. Writ Petition is disposed of in the above terms.
( M.M. SATHAYE, J.) ( NITIN JAMDAR, J.)
