Bombay High Court
Nitin Pauladsing Pawar vs The State Of Maharashtra Through Its ... on 13 March, 2025
2025:BHC-AUG:7376-DB
1 03.WP No.1600-2008.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 1600/2008
with
Civil Application No.507 of 2017
and
Civil Application No.5436 of 2023
....
Nitin S/o. Pauladsingh Pawar,
Age : 45 years, Occ.Service,
R/o. Vidya Nagar, Dondaicha,
Tq.Sindkheda, Dist.Dhule. ...Petitioner
Versus
1. The State of Maharashtra,
Through the Secretary,
Tribal Development Department,
Mantralaya,Mumbai-32.
2. The Scheduled Tribe Caste
Certificate Verification Committee,
Through its Chairman/Director,
Nashik Division Nashik.
3. The Taluka Executive Magistrate
Tahsil Office, Shindkheda,
Dist.Dhule.
2 03.WP No.1600-2008.doc
4. The Superintending Engineer,
Mah.State Electricity Distribution Co.Ltd.
Dhule. ...Respondents
...
Advocate for Petitioner : Mr. A.S.Golegaonkar
Addl.GP for Respondent/State : Mr. P.S.Patil
...
CORAM : S.G.MEHARE &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 03rd MARCH 2025
PRONOUNCED ON : 13th MARCH 2025
JUDGMENT [Per Shailesh P. Brahme, J.] :
1. Rule. Rule is made returnable forthwith by the consent of
the parties. Heard both sides finally.
2. Petitioner is challenging judgment and order dated
27.04.2007 passed by the Scrutiny Committee invalidating his
tribe certificate of Scheduled Tribe 'Thakur'. Petitioner has
relied on the validities issued to Hiralal Kashiram Thakur and
Sonal Limba Thakur, paternal relatives of the petitioner. He is
also relying on the pre-independence record of his father
Pauladsingh Krushna Pawar of 22.06.1938 and of uncle
Kashiram Krushna Thakur of 08.09.1931. He is relying on the
order passed in the matter of Milindkumar Pauladsingh Pawar
on 08.11.2006 in Writ Petition No.2124 of 1996.
3 03.WP No.1600-2008.doc
3. Learned counsel Mr.Golegaonkar appearing for the
petitioner submits that the pre-constitutional record which was
verified during the vigilance has not been doubted by the
Committee. It has a greater probative value and it would enure
to the benefit of the petitioner. He would further submit that
petitioner's real brother Milindkumar was denied the validity
certificate by the Scrutiny Committee. Against that he had
preferred appeal before Additional Commissioner, Nashik
Division,Nashik.His appeal was allowed on 27.01.1993 holding
him eligible to Scheduled Tribe 'Thakur' validity. The said
judgment was sought to be reviewed by issuing notice on
11.05.1993. It was challenged before the co-ordinate Bench in
the above referred matter and it was quashed. It is further
submitted that the findings recorded by the scrutiny committee
regarding affinity test and the area restrictions are
unsustainable.
4. Learned counsel for the petitioner relies on the latest
judgments of the Supreme Court in the matters of Maharashtra
Adiwasi Thakur Jamat Swarkshan Samiti vs. State of
Maharashtra and others reported in (2023) 2 Mh.L.J.785,
Baburao Rajaram Shinde vs. State of Maharashtra and others
reported in (2002)4 Mh.L.J.310 and Pandurang Rangnath
Chavan vs. State of Maharashtra and others reported in [1998(2)
Mh.L.J806].
4 03.WP No.1600-2008.doc
5. Per contra, learned AGP Mr.Patil supports the impugned
judgment and order. He has tendered on record the original files
of the petitioner and the earlier validity holders in the family. He
would submit that Milind Kumar, petitioner's brother was never
issued with validity certificate. There was no confirmation of the
order passed by the appellate authority on 27.01.1993. It is
further submitted that the validities issued to Hiralal and Sonal
are unreliable because due procedure of law was not followed in
their cases. It is vehemently submitted that the old school record
which is pressed into service only shows entry of Thakur but that
is merely synonymous to the Scheduled Tribe Thakur but in fact it
is upper-caste Thakur. He would submit that affinity test was
being conducted by the expert persons and the petitioner failed to
get through the same.
6. Learned AGP would further submit that full-bench judgment
in the matter of Shilpa Vishnu Thakur Vs. State of Maharashtra
and Others reported in (2009) 5 AIR Bom R.478 still holds the
field. The affinity test in a given circumstance needs to be
followed. All core issues decided by full bench in the matter of
Shilpa Vishnu Thakur Vs. State of Maharashtra and Others
(supra) have not been answered by the Supreme Court in the
matter of Maharashtra Adiwasi Thakur Jamat Swarkshan Samiti
vs. State of Maharashtra and others reported in 2023(2)
Mh.L.J.785. These matters are sub-judice before Supreme Court
for the left out issues of Shilpa Vishnu Thakur (supra).
5 03.WP No.1600-2008.doc
7. We have considered rival submissions of the parties. We
have gone through relevant documents on the record from the
paper-book as well as original files produced before us.
8. The petitioner is relying on the validities issued to his
cousin Hiralal Kashiram Thakur and niece Sonal Limba
Thakur. The relationship has not been disputed by the
respondents. In case of Hiralal, it transpires that vigilance
inquiry was conducted. He was issued with validity certificate
by order dated 30.04.2003. It can not be said to be a reasoned
order. The documentary evidence has not been dealt with by
the Committee. Only reliance is placed upon certain previous
decisions of the High Courts and the Supreme Court.
9. In case of Sonal Limba Thakur, we notice similar type of
cryptic order was passed by the Scrutiny Committee granting
validity without their being any discussion on the material
pressed into service by the claimants. Apparently, both
validities of Hiralal and Sonal can not be relied upon just
because those validities are still intact. There is want of due
procedure of law, appreciation of material by the committee
and reference to the affinity test. We accept the submissions of
learned AGP that those validities are not reliable.
10. In the present case, the petitioner's real brother
6 03.WP No.1600-2008.doc
Milindkumar's tribe claim was rejected by the Scrutiny
Committee by order dated 01.10.1992. Being aggrieved he had
preferred appeal before Additional Divisional
Commissioner,Nasik Division Nasik. His appeal was allowed
vide reasoned order dated 27.01.1993. Considering material
placed on record, he was held to be belonging to the 'Thakur'
Scheduled Tribe. The appellate authority considered pre-
constitutional school record of his father. It's a fact that after
the decision of the appellate authority, he was not issued with
validity certificate by the Scrutiny Committee. However, in sum
and substance the tribe claim of Milindkumar was accepted and
absolute finding was recorded that he was belonging to the
Scheduled Tribe 'Thakur'. Issuance of validity certificate to him
is a mere formality which could not be done for the reasons best
known to the parties. In all probability the concerned claimant
also might not have persuaded the authorities for issuing the
validity certificate. We do not accept the submissions of learned
AGP that just because there was no validity issued to
Milindkumar, the judgment passed by the appellate authority
would not enure to the benefit of the petitioner.
11. It's a matter of record that the school record of
petitioner's father of 22.06.1938 and that of his uncle
Kashiram Krushna Thakur of 08.09.1931 was considered
during the vigilance and no doubt was expressed about its
genuineness either in the vigilance report or by the Committee.
7 03.WP No.1600-2008.doc
In view of judgment of Supreme Court in the matter of Anand
Vs. Committee For Scrutiny and Verification of Tribe Claims and
Others reported in (2012) 1 SCC 113, these documents are having
greater probative value and those would enure to the benefit of
the petitioner.
12. Learned AGP has taken us through affinity test. It was
conducted by the experts. The petitioner could not withstand the
test. It is contended that in view of decision of full-bench in Shilpa
Vishnu Thakur (supra), the affinity test is decisive. By
considering the judgment in Shilpa Vishnu Thakur (supra),
Supreme Court decided in the matter of Maharashtra Adiwasi
Thakur Jamat Swarkshan Samiti vs. State of Maharashtra and
others reported in 2023(2) Mh.L.J.785, affinity test is not a
litmus test. We are bound by the decision in Maharashtra Adiwasi
Thakur Jamat Swarkshan Samiti (supra). In the present facts of
the case when there is pre-constitutional record and validity of
real brother Millindkumar supporting the petitioner's claim, the
result of the affinity test is inconsequential.
13. It is canvassed by learned AGP that all contours of full-
bench judgment in Shilpa Vishnu Thakur (supra) has not been
dealt with by Supreme Court in Maharashtra Adiwasi Thakur
Jamat Swarkshan Samiti (supra). Few issues are left to be
decided and for that purpose matters are pending in the Supreme
Court. We have already dealt with this submission in Writ Petition
No.9283 of 2012 and observed as follows :
8 03.WP No.1600-2008.doc
16. According to the learned Additional GP, all the issues are not answered or
dealt with by the Supreme Court in the matter of Maharashtra Adiwasi Thakur
Jamat Swarakshan Samiti (supra), which were addressed by the Full Bench of
Bombay High Court in the matter of Shilpa Vishnu Thakur (supra). This
submission is absurd. It is difficult to accept that only few issues are dealt with
and few are left unanswered. The possibility of re-visiting the earlier decision of
High Court or Supreme Court cannot be ruled out in future, but that does not
mean that this Court should wait for inordinate period till decision on a particular
issue is handed down.
17. Even if for time being the submission is accepted that issue of Thakur would
not conclusively amount to Scheduled Tribe Thakur is subjudice before the
Supreme Court but that does not preclude this Court from deciding the matters.
Therefore we reject the submission of Mr. Pravin Patil that still few issues are
subjudiced before the Supreme Court and judgment in the matter of Maharashtra
Adiwasi Thakur Jamat Swarakshan Samiti (supra) is not final verdict.
. In view of the above observations, we can not accept the
submission of learned AGP.
14. In the wake of the facts that pre-constitutional record and
validity of Milind kumar are corroborating the tribe claim, we can
not accept the submission of learned AGP that reference to
Thakur in the school record is only synonymous to entry at
Sr.No.44 of the Constitutional order. Learned counsel for the
petitioner has referred to judgment of Baburao Rajaram Shinde
vs. State of Maharashtra and others reported in (2002)4
Mh.L.J.310. It's relevant paragraph is as follows :
32. The Scrutiny Committee has limited role to investigate whether the
claimant before it belongs to "Thakur or Thakar" caste and on that basis
it may take steps as are mandated by law laid down by the Supreme
Court in Kum. Madhuri Patil's case, AIR 1995 SC 94. On adjudication if
the Committee records a finding in the affirmative, it has to certify that
the claimant belongs to the Scheduled Tribe and it cannot venture into
9 03.WP No.1600-2008.doc
any further inquiry into such a claim. In the case at hand, the
Committee recorded a finding that the petitioner had claimed to belong
to Thakar Scheduled Tribe and the claim was subjected to verification
by the Committee which recorded a finding on adjudication of this claim
that the petitioner belonged to "Hindu Thakar" caste which falls in the
Other Backward Classes. The petitioner has challenged this finding on
the ground that once he was found to be belonging to the "Thakar caste"
it was incompetent for the Committee to give any further declaration
regarding his social status and to hold that the claimant belonged to
"Hindu Thakar" caste - a non-tribal group. If the Committee was
satisfied that the claimant did not belong to Thakar caste, it had the
powers to give a declaration accordingly. It certainly did not have the
powers to give a further declaration and that too contrary to the
petitioner's claim that he belonged to Hindu Thakar caste. These
submissions have considerable force and we agree that once the
Committee recorded a finding that the claimant belongs to Thakar caste
it had no jurisdiction to give any further declaration and the only course
available to it in such cases was to validate the claimant's social status
as belonging to the Scheduled Tribe (entry no. 44). It is for these
reasons that the impugned order is contrary to law and the Scrutiny
Committee has fallen in serious error in denying the petitioner's
Scheduled Tribe claim. The said order is, therefore, unsustainable and
it requires to be quashed and set-aside.
. We are in agreement with the views expressed by the Co-
ordinate Bench.
15. A useful reference can be made to judgment of another co-
ordinate bench in the matter of Prakash Shrawan Deore vs.
Scheduled Tribe Certificate Scrutiny Committee and Anr.
reported in 2020(1) Bom.C.R.205. Following are the relevant
extracts:
8. The Division Bench of this Court in the judgment and order passed in
the said petition referred to the documents which were discussed
10 03.WP No.1600-2008.doc
hereinabove and found that, though in some documents 'Hindu' was
mentioned, the same entry related to the religion of the Petitioner's
forefathers and the caste was Thakur'. After considering the entire
material and the judgment of the Hon'ble Apex Court in the case of
Palghat Jilla Thandan Samudhaya Samrakshna Samithi vs. State of
Kerala: 1994(1)SCC 359, the Division Bench observed in paragraphs 5, 6
and 7 thus:
"5. In the Presidential Order, Thakur tribe has been categorised as
Scheduled Tribe at Serial No. 44. It would, thus, not be open to either the
State Government or to the Court to hold that Thakur does not belong to
Scheduled Tribe. In the instant case, petitioner has been found to belong to
Thakur Community but has been held to belong to a non-tribal group. This
is specifically prohibited under the aforesaid judgment of the Supreme
Court.
6. In the instance case, the documentary evidence produced by the
petitioner shows that the petitioner belongs to Thakur. Thakur in the
aforesaid entry at Serial No. 44 in the Presidential Order is shown to
belong to Scheduled Tribe. It will, therefore, be not open either to the State
Government or to any Court to hold that the said Thakur does not belong
to Scheduled Tribe but to a high caste.
7. In the circumstances, the impugned order, which is annexed at
Exhibit 'B' to the petition, is quashed and it is declared that the Petitioner
belongs to Thakur Scheduled Tribe."
Not only this but also the scrutiny committee at Nashik vide
order dated 5th October, 1999, after considering the judgment and order of
the Division Bench of this Court in the case of Pitambar Deore (supra) held
the claim of the Pitambar's son, namely Rajesh, to be valid.
10. The aforesaid observations are not only contrary to the law laid down
by the Hon'ble Apex Court in the case of Palghat (supra) but also totally in
ignorance of the observation made by the Division Bench of this Court in
the case of the Petitioner's father's real brother, namely Pitambar. The
committee could not have ignored the said observations. As a matter of
fact, in view of the judgment of this Court in the case of Apoorva Nichale
(supra) in view of the validity in favour of the Petitioner's close blood
relatives, the committee ought to have granted validity in favour of the
Petitioner. Undisputedly, the decision of the committee is dated 9th
11 03.WP No.1600-2008.doc
January, 2013 i.e. after the judgment of the Division Bench in the case of
Apoorva Nichale (supra).
12. No doubt that the learned AGP relied on the judgment of the Full
Bench of this Court in the case of Shilpa Thakur (supra) that the claim
cannot be decided only on the basis of the documentary evidence but the
affinity test also plays an important role. However, it is to be noted that the
judgment of the Full Bench in the case of Shilpa Thakur is dated 7th May,
2009, whereas the judgment of Anand Kathole is delivered by the Hon'ble
Apex Court on 8th November, 2011. In the case of Rashmi Metaliks
Limited and anr. vs. Kolkata Metropolitan Development Authority and ors.
(2013) 10 SCC 95, the Hon'ble Apex Court has frowned upon the practice of
lawyers citing multiple judgments in support of a proposition of law. Any
sincere student of law, leave aside a practising lawyer, who has put a
number of years at the bar, is expected to know that the judgment of High
Court, including the judgments delivered by the Full Bench, which has
taken a view, which is contrary to the view taken by the Hon'ble Apex
Court, subsequently, the earlier judgment stands impliedly over-ruled. We
do not understand the propriety in citing the judgment which is impliedly
over-ruled.
16. Reference to paragraph No.12 of above referred judgment
can be had to reject the submission of learned AGP for over
emphasizing on Shilpa Vishnu Thakur (supra). The findings
recorded by the Committee in respect of area restrictions are
unsustainable in view of judgment of Supreme Court in the
matter of Palghat Jilla Thandan Samudhaya Samrakshana
Samithi and Anr. Vs. State of Kerala and Anr. reported in 1994
(1) SCC 359 and Jaywant Pawar vs. State of Maharashtra in
Special Leave to Appeal No.2627 of 2010.
17. We are of the considered view that petitioner has made
out a case for causing interference in the impugned judgment
12 03.WP No.1600-2008.doc
and order. We therefore pass following order :
ORDER
A) Writ Petition is allowed.
B) The Judgment and order dated 27.04.2007
passed by Scrutiny Committee is quashed and set-
aside.
C) The Respondent/Scrutiny Committee shall issue
tribe validity certificate of 'Thakur' Scheduled Tribe
forthwith to the petitioner.
D) Civil Applications stand disposed of.
E) Rule is made absolute in above terms.
[ SHAILESH P. BRAHME, J.] [ S.G.MEHARE, J.]
VSJ
