Swapnil Dnyaneshwar Ahire And Anr vs State Of Maharashtra Thru Secretary, ...
2025 Latest Caselaw 1693 Bom

Bombay High Court

Swapnil Dnyaneshwar Ahire And Anr vs State Of Maharashtra Thru Secretary, ... on 20 January, 2025

Author: Bharati Dangre

Bench: Bharati Dangre

2025:BHC-AS:5488-DB

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION
                                  WRIT PETITION NO. 13072 OF 2022


               Swapnil Dnyaneshwar Ahire and anr             ..     Petitioners
                                       Versus
               The State of Maharashtra and anr              ..     Respondents
                                               ...

               Mr.R.K. Mendadkar i/b Priyanka Shaw for the petitioner.
               Mr.K.S. Thorat 'B' Panel Counsel for State.

                                         CORAM: BHARATI DANGRE &
                                                 ASHWIN D. BHOBE, JJ.
                                         DATED : 20th JANUARY, 2025

               JUDGMENT:

- (PER BHARATI DANGRE J)

1. Being aggrieved by the order dated 20/05/2022, passed by the Scheduled Tribe Certificate Scrutiny Committee, Nashik, thereby rejecting the claim of the petitioners as belonging to 'Thakur', a Scheduled Tribe, the petitioners have approached this Court praying for quashing and setting aside of the order impugned, with a further direction to respondent no.2, Committee to issue certificate of validity to the petitioners in terms of the Caste Certificate issued in their favour. It is also prayed that a declaration shall be issued that the caste certificate dated 26/03/2022, and 28/06/1977, issued in favour of the petitioner nos.1 and 2 respectively by the competent authority be held as valid, legal and subsisting.

2. We have heard learned counsel Mr. R.K. Mendadkar for the petitioner along with Ms. Priyanka Shaw.

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The respondent authorities are represented by Mr. K.S. Thorat, the panel 'B' counsel for the State. On the earlier date, we had directed the learned AGP to place before us the record of the Committee, which has declined to validate the claim of the petitioners, the son and the father belonging to Thakur (Scheduled Tribe) and accordingly record is produced before us.

By consent of the respective counsel, issue 'Rule'.

By making the Rule returnable forthwith, we have taken the petition for final hearing.

3. The petitioner no.1, moved the respondent no.2 committee for verification of his caste certificate, since he was desirous of pursuing his education, whereas his father i.e. petitioner no.2 sought verification of caste certificate, since his claim was forwarded through his employer in the year 2013.

In support of their claim that, they belong to 'Thakur', Scheduled Tribe and being in possession of the caste certificates to that effect issued by the Competent Authority, they tendered various documents, which included the documents in relation to their blood relatives prior to independence depicting the entry as 'Thakur'.

The petitioners also furnished caste validity certificate granted in favour of Lalita Rajaram Thakur, the first cousin of petitioner no.1 and niece of petitioner no.2, whose certificate was validated, since this Court in Writ Petition No. 8096 of 2013, gave a declaration that she belongs to Thakur (ST). In addition, validity certificates issued in favour of Archana Dinkar Ahire and Sonali Prakash Ahire cousin sister of petitioner no.1, was also furnished to

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the Committee.

4. Since, the evidence to be appreciated in both the cases was common, the Committee tagged the case of petitioner nos.1 and 2 together and called for vigilance cell report in regard to the school register as well as for collection of other evidence. The statement of petitioner no.2 in relation to traits, characteristics, traditions, customs etc was recorded. The Vigilance Cell also examined the documents submitted by the petitioners in the nature of school record and also brought on record of the committee certain entries in respect of the relatives of the petitioner. However, the Vigilance Cell confirmed the fact that Lalita Rajaram Ahire, the first cousin of petitioner no.1 as well as Archana Dinkar Ahire and Sonali Prakash Ahire were granted validity certificate by the respondent no.2 Committee.

5. The copy of the vigilance cell report was furnished to the petitioners, however, no show cause notice is issued, is the contention which we must at the outset reject being incorrect as the forwarding of the vigilance cell report is accompanied with an intimation to the petitioner to remain present before the Committee and to deal with the said report.

In pursuance of the same on 20/02/2021, the petitioner no.1 forwarded a written submission, wherein he offered an explanation for the findings in the vigilance cell report and reiterated that his blood relatives are conferred with validity certificates and therefore prayed for validation of his claim.

6. With the able assistance of respective counsel, we have perused the impugned order dated 20/05/2022, which has rejected the

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claim of the petitioners, and we have also perused the record of the Committee produced before us.

The impugned order record that before verifying the claim of the petitioners as belonging to 'Thakur' (ST), supported by a certificate issued by the Competent Authority, a school and home inquiry was entrusted to the vigilance cell as per Section 23 of the Act of 2003 and the vigilance officer submitted his report on 14/02/2020, after obtaining the necessary entries in the school register of the relatives belonging to the petitioners.

Reference is made to 37 entries of which 4 entries have reflected the caste as Bhat/Hindu Bhat and which include school entry of Gangaram Tulsiram dated 17/08/1893 referred to as the grandfather of the petitioner no.2 and one Motiram Haibat Bhat cousin cousin dated 1/06/1906, which has a reference of 'Bhat' in the column of caste/sub-caste. Two more entries of Damodar Haibat Bhat and Gojrabai Damu Thakur dated 1/06/1906 and 4/03/1935 the cousins of the petitioner no.2, also record the caste as 'Bhat'. However rest of the entries obtained by the vigilance cell, some of which are pre-constituional period clearly record the caste as 'Thakur /Hindu Thakur'.

The pre-constitutional entries collated by the vigilance cell includes the following entries:-

Sr.NoName of the Student Caste/sub-caste Date of enrollment Relation with in School Petitioner no.2.

1. Damodar Haibat Bhat Bhat 1/06/1906 Cousin Cousin

2. Motiram Haibati Thakur Thakur 1/06/1906 Cousin Cousin

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3. Pundalik Haibat Thakur Thakur 1/09/1914 Cousin Cousin

4. Hari Gangaram Ahire Hindu Thakur 1/08/1947 Cousin

5. Jagannath Dadmodar Hindu Thakur 20/07/1932 Cousin Sister Ahire

6. Indu Baap Damu Thakur Hindu Thakur 14/06/1943 Cousin Sister

7. Ramdas Gangaram Hindu Thakur 5/05/1941 Father Ahire

8. Devman Ganpat Ahire Hindu Thakur 8/05/1940 Cousin Brother

9. Jagannath Damodhar Hindu Thakur 3/07/1941 Cousin Brother Ahire

10. Madhukar Motiram Hindu Thakur 17/07/1947 Cousin Brother Ahire

11. Sudhakar Motiram Ahire Hindu Thakur 5/04/1949 Cousin Brother

12. Mahipat Haibat Thakur Thakur 1/03/1917 Cousin Cousin

13. Dwarki Baap Hari Hindu Thakur 3/08/1934 Cousin Sister Thakur

14. Dattatray Hari Thakur Hindu Thakur 16/02/1937 Cousin Brother

7. In the wake of the aforesaid entries collected by the vigilance cell, the report make reference to the surnames of the relatives of the petitioner and refer to their place of residence as Nashik, Jalgaon, Dhule, Aurangabad, Nandurbar, and it also make a reference that some of the entries of the close relatives of the petitioners, as 'Hindu Bhat'. However, as per the statement given by the petitioner no.2, during the inquiry, he was unable to establish his affinity with 'Thakur' Scheduled Tribe.

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Research Officer therefore, submitted a negative report on the basis that the petitioners have failed to establish their affinity to Thakur Scheduled Tribe.

8. While considering the claim of the petitioners, the Committee relied upon the four entries of Bhat and placed strong reliance upon these entries, being of pre-constitutional era and we find that it has completely ignored the other entries to which we had made reference as above, which are also of a pre-constitutional era. It is true that the pre-independence documents furnish a higher decree of probative value, while determining the status of caste of a person as compared to the post-independence documents, but it would be axiomatic to only pick up these four entries by completely ignoring the other entries, which are of pre-constitutional era, which clearly record the caste/sub-caste of the blood relatives of the petitioners as Thakur/Hindu Thakur.

9. Taking note of this discrepancy in the entries of the caste recorded in the documents of pre-constitutional era, the committee then invoked the affinity test and relied upon the observations of the Apex Court in case of State of Maharashtra and ors vs. Raviprakash Babulalsing Parmar and anr1 , and also on the decision of this Court in case of Vijaykumar s/o Madhukar Ingle vs, Caste Scrutiny Committee, Amravati and ors2.

By reproducing the observations of the Apex Court in case of Kum. Madhuri Patil vs. Additional Commissioner, Tribal Development and ors3 , by focusing upon the relevance of affinity

1 (2007) 1 SCC 80.

2 (2007) 6 MHLJ 36.

3 (1994) 6 SCC 241.

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test, reliance was placed upon the decision in case of Anand vs. Committee for Scrutiny and verification of Tribe Claims and others 4 , which contained a reference to the tendency to take benefit of the similarity in the nomenclature of the tribe 'Thakur' as highlighted by the Committees, by recording the conclusion that several persons belonging to Thakur caste like Thakur Rajput, Thakur Bhat, Thakur Bramha Bhat, Thakur Jat, etc in order to derive genuine candidates the benefit of belonging to Scheduled Tribe, as by raising a spurious claims. Therefore by applying the affinity tests, the committee refused the validity to the petitioners.

The impugned order record that though on account of the gradual advancement the persons of the community, by lapse of time, but they must be aware of their traits/culture, which are peculiar in case of tribes and by relying upon the observations in case of State of Maharashtra vs. Milind 5, where the Apex Court noted that even better placed persons by producing false certificate as belonging to Scheduled Tribes have been capturing or cornering the seats or vacancies reserved for Scheduled Tribes, defeat the very purpose for which the provisions are made and depriving the persons for whom the benefit is intended. Relying upon the four entries of Bhat and since the petitioners failed to satisfy the affinity test, the claim came to be rejected.

10. We are really surprised to read the reasoning and the conclusion drawn by the Committee, as we find that out of 37 school entries, only 4 entries of the blood relatives are alleged to be of caste 'Bhat' but there are at least 10 pre-constitutional entries of the blood 4 (2012) 1 SCC 113.

5 (2001) 1 SCC 4

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relatives of the petitioners, which have recorded 'Thakur/Hindu Thakur' and the petitioners through the Genealogical tree have been able to establish that the persons, whose school entry have recorded the caste as 'Thakur' are their blood relatives.

In its usual stride, the committee has also ignored the validity in favour of the blood relations of the petitioners and this include the validity certificate granted in favour of Lalita Rajaram Thakur, Archana Dinkar Ahire, Sonali Prakash Ahire, the close blood relatives of the petitioners.

The Committee ignored this validity by adopting a perfunctory approach and merely relying upon four entries of 'Bhat'.

Lalita Ahire, whose claim was rejected by the Scrutiny Committee on 17/05/2013, had approached this Court by filing Writ Petition No.8096 of 2013, and by an order dated 21/02/2019, the Scrutiny Committee was directed to issue validity in favour of Lalita and accordingly on 2/04/2019 a validity certificate was issued to her. Pertinent to note that, when the case of Lalita Rajaram Thakur was considered by this Court, the vigilance inquiry was conducted but the Committee surprisingly recorded in the impugned order that the inquiry was not proper and was of perfunctory nature and therefore, the pre-constitutional entries of Bhat/Hindu Bhat of the 4 relations of the petitioner could not come before the Committee or the Court.

In dealing with the case of Archana Ahire and Sonali Ahire, who were also granted validity, the same reasoning is adopted by the Committee, when it derived a conclusion that the vigilance inquiry in respect of these persons was also not carried out properly.

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11. We must deprecate the approach adopted by the Committee as time and again, the Apex Court as well as this Court have expressed displeasure in the approach adopted by the Committees in denying validity to a member of a family, despite the fact that the other member of the family, whose relationship is established is denied the benefit.

In Apporva d/o Vinay Nichale vs. Divisional Caste Certificate Scrutiny Committee No.1 and ors 6 , by relying upon the Government Resolution dated 22/08/2007, which categorically directed that during the course of inquiry or scrutiny of the caste claim, it is seen that the caste claim of the blood relative such as father, son, daughter, brother and sister has been scrutinized and accepted, the caste claim of the applicant should be allowed without insisting on any other proof.

Recording that the guidelines provided by the Government Resolution are based on sound principles, the Division Bench ruled that, if the relationship by blood is established or not doubted and once such relative has been confirmed as belonging to a particular caste, there is no reason why public time or money should be spent in the Committee testing the same evidence, and arriving at same conclusion unless the Committee finds on the evidence that the validity of certificate of such relation has been obtained by fraud.

12. The Hon'ble Apex Court in a recent decision, in case of Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti vs. State of Maharashtra and ors7 , while testing the decision of the full bench of

6 (2010) 6 MHLJ 401.

7 (2023) SCC Online SC 326.

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the Bombay High Court, in case of Shilpa Vishnu Thakur vs. State of Maharashtra8, which had taken a view that affinity test is an integral part of the determination of the correctness of the caste claim, once again re-examined the scheme of the Maharashtra Scheduled Castes, Maharashtra Scheduled Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act Act of 2000 and the Rules of 2012, and took note of the conflict of views expressed in the two decisions of the Co-ordinate benches of the Apex Court, one in case of Vijay Kumar vs State of Maharashtra and ors holding that if a candidate fails the affinity test, a caste validity certificate cannot be granted to him and the other in case of Anand (supra), which held that affinity test is not the only criteria for deciding a caste claim based on caste certificate.

By referring to Rule 12 of the Rules of 2012, which set out the procedure to be followed by the Scrutiny Committee, while deciding the claim, reliance is placed upon the sub-rule (2) of rule 12, which clearly provide that, only if the Scrutiny Committee is not satisfied with the documentary evidence produced by the applicant, the claim shall be forwarded to vigilance cell for conduct of the school, home and other enquiry. It is reiterated that in every case, as a matter of routine, the Scrutiny Committee cannot mechanically forward the applications to vigilance cell for conducting an inquiry and if the committee is not satisfied with the documents, then it shall pass an order recording brief reasons, why it is not satisfied with the documents, but it is expected that the committee shall apply its mind

8 (2009) 3 MHLJ 995.

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before forwarding the case to the vigilance cell and this application of mind must be reflected in the order sheets of the Scrutiny Committee.

13. Taking note of the scenario, which is found in many cases namely viz, where the applicant relies upon the caste validity issued to his blood relatives, but he is denied the benefit of this certificate, it is held that in such a situation, the Scrutiny Committee will have to decide, whether the applicant has established that the person to whom the validity certificate is issued is his blood relative and if it is so established, then unless and until it is found that the validity granted to a relative is without any lawful inquiry, the claim cannot be denied to the applicant. The specific observation of the Apex Court in the said decision reads thus:-

"23. In a given case, the Scrutiny Committee may be satisfied that the caste validity certificate relied upon by the applicant has been issued after making a lawful enquiry. But if the Scrutiny Committee is of the view that the applicant has not clearly established that the person to whom caste validity certificate produced on record has been granted is his blood relative, in terms of subrule (2) of Rule 12 of the ST Rules, the Caste Scrutiny Committee will have to refer the case for conducting an enquiry through Vigilance Cell. In such a case, the Vigilance Cell can be directed by the Scrutiny Committee to conduct an enquiry limited to the relationship claimed by the applicant with the person in whose favour the caste validity certificate has been issued. If, on the basis of the report of the Vigilance Cell, the Scrutiny Committee is satisfied that the person in whose favour caste validity certificate has been issued is a blood relative of the applicant and lawful enquiry has been conducted before issuing the validity certificate, the Scrutiny Committee will have to issue validity certificate even if the applicant does not satisfy the affinity test. For example, if it is established that the father or grandfather of the applicant has been given a caste validity certificate after holding a lawful enquiry in accordance with law, the Caste Scrutiny Committee cannot hold that the grandfather or father of the applicant, as the case may be, belongs to Scheduled Tribe but the applicant does not belong to Scheduled Tribe. Only if the relationship as pleaded by the applicant is not established, the other evidence produced by the applicant and the result of the affinity test can be taken into consideration by the Scrutiny Committee."

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14. As far as the affinity test is concerned, by highlighting the purpose for which the affinity test is to be conducted, their Lordships of the Apex Court have concluded thus:-

"36. The conclusions of the Full Bench have been recorded in paragraph 40. In clause (i) of paragraph 40, the Full Bench of the High Court records that under Rule 12(2), the Scrutiny Committee, if it is not satisfied with the documentary evidence produced, has to forward the application to Vigilance Cell for holding a school, home and other enquiry. The Full Bench does not lay down that in every case where the Scrutiny Committee is dealing with a Scheduled Tribe claim, a reference must be made to the Vigilance Cell. In clause (ii) (a) of paragraph 40, the Full Bench records that the Scrutiny Committee must have regard to the entire body of evidence, including on the question as to whether the applicant has satisfied the affinity test. As held earlier, the question of taking recourse to the affinity test will arise only if the case is referred to Vigilance Cell. In fact, in clause (b) of paragraph 40, the Full Bench holds that even if an applicant does not have any documentary evidence it will not ipso facto result into invalidation of the caste claim. The reason is that in such a case, subrule (2) of Rule 12 will apply and the Vigilance Cell will have to hold an enquiry including affinity test. Even in such a case, affinity test will not be conclusive either way as held in clause (2) of paragraph 20 in Anand's case. In clause (c) of the same paragraph, the Full Bench of the High Court also holds that even if the applicant partially satisfies the affinity test, depending upon the nature of the evidence on record, the Scrutiny Committee has power to validate the claim. Thus, even clause (c) proceeds on the footing that the affinity test is not conclusive."

15. In light of the above detailed discussion, the conclusion derived, is that affinity test cannot be conclusive either way and when it is conducted, the result of the test along with other material on record having probative value will have to be taken into consideration by the Scrutiny Committee.

In short, it is concluded that affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of determination of correctness of a caste or tribe claim in every case.

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16. Following the aforesaid authoritative pronouncement, flowing from the highest Court of this country, we have no hesitancy in holding that the order passed by the committee is in the teeth of the observations to the aforesaid effect.

The petitioners having subjected to vigilance cell inquiry despite a heap of documents produced by them clearly establishing their claim as belonging to Thakur Scheduled Tribe, but for its own satisfaction, the committee deemed it appropriate to conduct the vigilance cell inquiry and once it found some stray entries of 'Bhat', it arrived at a conclusion that while the persons, who are granted validity, who find place in the genealogy tree, placed on record before the Committee, have been wrongly granted the validity in ignorance of the said entries.

We find the approach of the Committee to be totally unreasonable and in ignorance of the purpose of scrutinizing the claim as contemplated under the Act of 2000, as well as the Rules framed therein.

In light of the aforesaid observations, impugned order dated 20/05/2022, cannot be sustained and necessarily it is quashed and set aside.

We direct the respondent no.2 Scheduled Tribe Certificate Scrutiny Committee, Nashik, to issue the validity certificate in favour of both the petitioners within period of six weeks from the date of receipt of the order.

(ASHWIN D. BHOBE, J)                           (BHARATI DANGRE, J)

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