WRIT PETITION NO. 3770 OF 2017

20th April 2021

Petitioner Counsel: Mr. Shikur G. Kudle
Respondent Counsel: Mrs. A. A. Purav
Act Name: Bombay Reorganization Act, 1960 Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 Constitution of India, 1950

JUDGEMENT

V. G. BISHT, J.

1. By this Petition filed under Article 226 of the Constitution of India, the petitioners have impugned the judgment and order dated 15th June, 2016 of the Scheduled Tribe Caste Certificate Verification Committee, Pune Division, Pune, respondent No.1 herein invalidating the claim of petitioners by issuing appropriate writ, order and seek that respondent No.1 be directed to validate the tribal claim of the petitioners holding that they belong to Thakar (ST -44) (Reserved Category).

2. Facts necessary for the purpose of deciding this Writ Petition are as under :
Petitioner No.1 is working as a Senior Clerk in the office of Superintendent Pay and Provident Unit (Secondary), Solapur. Petitioner No.2 is son of petitioner No.1 and he is a collage going boy. The petitioners submit that the Caste Certificate came to be issued on 28th August, 2003 by the Competent Authority showing that both the petitioners belong to Thakar (ST-44).

3. It is the case of petitioner No.1 that his Caste Certificate was submitted on 21st July, 2007 to respondent No.1 Committee and Caste Certificate of petitioner No.2 on 2nd May, 2013 for the purpose of verification of the tribe claim along with necessary documents in support of their tribe claim. However, respondent No.1 Scrutiny Committee rejected the tribe claim by said impugned judgment and order.

4. According to petitioners, in the school record of petitioner No.1’s father, his caste is shown as Hindu- Thakar and the same is the case with petitioner No.1’s uncles and the said evidence is much prior to the Presidential Order of the year 1950 and thus, the said evidence has got the probative value but same was not taken into consideration. The father of petitioner No.1 was born on 19th July, 1923 and the said birth and death extract maintained by Gram Panchayat Madha, Taluka – Madha, District- Solapur was collected by the Vigilance Cell and respondent No.1 Scrutiny Committee has not given any reason as to why the said evidence was discarded.

5. It is the further case of the petitioners that respondent No.1 Committee has utterly failed to appreciate the documentary evidence on record which is in existence much prior to the Presidential Order of the year 1950. There is no single document to substantiate the tribe claim but several documents which are of the pre-independence era. No valid reasons are advanced while discarding the said documentary evidence which was collected by the Vigilance Cell. The entire case has been approached erroneously and without having any application of mind. In the circumstances, the impugned order deserves to be quashed and set aside. Therefore, the present Petition.

6. Respondent No.1 Scrutiny Committee by filing affidavit in reply contends that the Research Officer attached to the Vigilance Cell has given remarks on the enquiry report dated 29th September, 2007 which are against the petitioners’ tribe claim. It has been clearly stated that the information regarding traits, customs and tradition of the petitioners’ community through enquiry report do not match with original Thakar, Scheduled Tribe. Since the petitioners have not proved their tribe claim by way of documentary evidence as well as on the point of cultural affinity, the Scrutiny Committee has rightly invalidated the tribe claim of the petitioners as Thakar, Scheduled Tribe. Merely because validity is granted in favour of the blood relatives of the petitioners that by itself would not be a ground for validation of subsequent claim. In the circumstances, the Petition deserves to be dismissed with costs, urged respondent No.1.

7. Mr.Kudle, learned Counsel for the petitioners, submitted before us that respondent No.1 Scrutiny Committee has failed to attach importance to birth extract of the father of petitioner No.1 and also the records which is in existence much prior to the Presidential Order of the year 1950. Similarly, the validity certificates of the blood relations of the petitioners have been deliberately ignored by respondent No.1 Scrutiny Committee without any valid reason and thereby committed an error causing substantial legal injury to the petitioners.

8. The learned Counsel took us through the various documents filed on record and then urged that the impugned order deserves to be set aside. He placed reliance on the judgment of this Court in case of Ms. Snehal Dilip Gaikwad Vs. Scheduled Tribe Caste Certificate Verification Committee, Pune Division, Pune & Ors. & Ors. WP No. 8152 of 2019 decided on 6th August, 2019.

9. Per contra, Mrs.Purav, learned AGP for respondent Nos. 1 to 3, on the other hand, canvassed before us that the contents of enquiry report were duly taken into consideration by the Scrutiny Committee and rightly arrived at a conclusion that the petitioners had failed to prove their tribe claim not only on the basis of the documentary evidence but also from the point of view of the cultural affinity, traits, and tradition of the petitioners’ community. In the circumstances, there was no reason for respondent No.1 Scrutiny Committee to issue certificate of validity of the tribe claim of the petitioners. There being no merit in the Petition, the same is liable to be dismissed with costs, argued learned AGP.

10. Mr.Kudle, learned Counsel for the petitioners, invited our attention to the School Leaving Certificates of not only the grandfather of petitioner No.1 but also the cousin grandfather of petitioner No.2, namely, Vasant Gopalrao Gaikwad, Suryakant Gopalrao Gaikwad and Mahadev Gopalrao Gaikwad.

11. The petitioners’ have come with a case that they belong to Thakar (ST-44) and accordingly the Caste Certificates to that effect came to be issued on 28th August, 2003 by the Competent Authority. Subsequently, they submitted the Certificates to respondent No.1 Scrutiny Committee for the purpose of verification of their Tribe Claim along with necessary documents before Vigilance Cell. These documents are as under :
(a) Extract of General School Register of the father of petitioner No.1, namely, Janardan Gopal Gaikwad, inter alia, showing his date and place of birth and Caste;
(b) Extract of General School Register of the uncle of petitioner No.1;
(c) Village Namuna No. 14 pertaining to father of petitioner No.1;
(d) School Leaving Certificate of Satish Janardan Gaikwad i.e. petitioner No.1;
(e) School Leaving Certificate of Satish Janardan Gaikwad i.e. petitioner No.1;
(f) Affidavit of petitioner No.1 filed before the Executive Magistrate, Solapur;
(g) Caste Certificate of petitioner No.1 issued by Sub Divisional Officer, Madha Division, Kurdwadi on 28th August, 2003;
(h) Affidavit of petitioner No.1 filed before the Executive Magistrate, North Solapur;
(i) Maharashtra Government Gazette in respect of change of surname of petitioner No.1;
(j) Caste Certificate of father of petitioner No.1 and grandfather of petitioner No.2 dated 24th June, 1977 issued by Tehsildar and Executive Magistrate, North Solapur;
(k) School Leaving Certificate of father of petitioner No.1 and grandfather of petitioner No.2;
(l) School Leaving Certificate of cousin of petitioner No.1’s father, namely, Chandrakant Gopal Gaikwad;
(m) School Leaving Certificate of cousin grandfather of petitioner No.2, namely, Vasant Gopalrao Gaikwad;
(n) School Leaving Certificate of cousin grandfather of petitioner No.2, namely, Suryakant Gopal Gaikwad;
(o) School Leaving Certificate of cousin grandfather of petitioner No.2, namely, Mahadeo Gopal Gaikwad;
(p) Affidavit of cousin of petitioner No.1 filed before the Special Executive Magistrate, Solapur;
(q) Certificates of validity issued by the Scheduled Tribe Certificate Scrutiny Committee, Pune Division to :-
(i) Mangesh Arun Gaikwad (real cousin of petitioner No.2)
(ii) Arun Chandrakant Gaikwad (real cousin uncle of petitioner No.2)
(iii) Sanjay Suryakant Gaikwad (real cousin uncle of petitioner No.2)
(iv) Rupesh Ramesh Gaikwad (cousin uncle of petitioner No.2) and
(v) Ganesh Bholenath Gaikwad (uncle of petitioner No.2)
(r) Genealogy tree of family.

12. We have carefully gone through all the above noted documentary evidence. We have also perused the impugned order.

13. It is pertinent to note from the School Leaving Certificate of Janardan Gopal Gaikwad, who is father of petitioner No.1 that he was born on 18th July, 1923 and Column No.2 of the School Leaving Certificate shows him as Hindu-Thakar. Similarly, the School Leaving Certificate of cousin grandfather of petitioner No.2, namely, Vasant Gopalrao Gaikwad also shows him having born on 20th July, 1929 with Column No.2 of the School Leaving Certificate showing him as belonging to Thakar.

14. Similar is the case with cousin grandfather of petitioner No.2, namely, Vasant Gopalrao Gaikwad, who was born on 2nd April, 1937 and Mahadev Gopal Gaikwad, who was born on 21st November, 1934. However, the School Leaving Certificate of Suryakant Gopal Gaikwad, who was born on 18th May, 1939 shows him as Hindu Thakur.

15. The learned Counsel during the course of argument also invited our attention to School Leaving Certificates of petitioner No.1 issued by Nutan Marathi Vidyalay, Marathi Shala, Solapur and Haribhai Deokaran High School, Solapur. The column No.2 of the said School Leaving Certificates shows him belonging to Hindu-Thakur. However, this ambiguity, according to learned Counsel, was cleared by the petitioner No.1 by filing his affidavit before the Executive Magistrate, North Solapur by stating that because of inadvertent insertion of a corrupted word, the Caste was shown as Hindu-Thakur instead of Hindu-Thakar.

16. The learned Counsel then invited our attention to paragraph No. 6 of the impugned order wherein the Scrutiny Committee inspected the School Leaving Certificates of petitioner No.1 and relatives and pin pointedly pointed out the discrepancy of the Caste shown as Hindu Maratha. The Scrutiny Committee was of the opinion that these notings of Hindu Maratha could not be overlooked and thus came to opinion that the petitioners had not proved beyond reasonable doubt their Caste as ‘Thakar”.

17. We have also carefully seen and inspected the School Leaving Certificates of petitioner No.1 and his relations. In our opinion, the Scrutiny Committee erroneously put on record the above said observations. It lost sight of the fact, which we have already mentioned by referring to affidavit of petitioner No.1, that under what circumstances the Caste of petitioner No.1 was shown Hindu Thakur in School Leaving Certificates. These certificates nowhere show his Caste as Hindu – Maratha as is noted by the Scrutiny Committee.

18. Similarly, it appears to us that the Scrutiny Committee totally ignored the contents of School Leaving Certificates of Janardan Gopal Gaikwad (father of petitioner No.1), Chandrakant Gopal Gaikwad (uncle of petitioner No.1), Vasant Gopalrao Gaikwad (uncle of petitioner No.1) and Mahadev Gopal Gaikwad (uncle of petitioner No.1). In all these School Leaving Certificates, Caste is shown as Thakar and not Hindu-Maratha as is indicated by the Scrutiny Committee.

19. There are extracts of School General Register. The first such extract at Serial No. 17 shows the name of Janardan Gopal Gaikwad with date of birth as 18th July, 2023 and Caste Thakar. The column No. 7 of the said extract shows date of admission as 19th July, 1928. Second extract at serial Nos. 1, 3 and 4 shows the names of uncles of petitioner No.1 viz. Vasant Gopalaro Gaikwad, Chandrakant Gopal Gaikwad and Mahadev Gopal Gaikwad with their date of birth as 2nd April, 1937, 20th July, 1929 and 21st November, 1934 respectively and Caste as Thakar. The column No.7 shows their date of admission as 20th July, 1942, 4th July, 1934 and 4th July, 1940 respectively.

20. The entries in School Leaving Certificates of the father and uncles of petitioner No.1 being pre-independene period, it bear “great probative value” wherein they declared themselves to be Thakar. The school record, comparatively, is not only oldest but it being the record pertaining to theirs’ admission to school prior to independence, it carry greatest probative evidentiary value. However, the Scrutiny Committee adopted an erroneous view and reflected an improper approach to the issue in question. There was no proper scrutiny as far as School Leaving Certificates of petitioner No.1’s father and uncles are concerned.

21. We now have the certificates of validity issued to Mangesh Arun Gaikwad (cousin nephew), Arun Chandrakant Gaikwad (relative), Sanjay Suryakant Gaikwad (cousin), Rupesh Ramesh Gaikwad (cousin) and Ganesh Bholenath Gaikwad (cousin). As far as certificates of validity of Arun Chandrakant Gaikwad, Sanjay Suryakant Gaikwad and Rupesh Ramesh Gaikwad are concerned, the Scrutiny Committee at paragraph No. 18 of the impugned judgment found that these persons secured certificates of validity by suppression of facts/ misrepresentation.

22. Taking recourse to ratio laid down in case of Apoorva d/o Vinay Nichale Versus Divisional Caste Certificate Scrutiny Committee No.1 & Ors. 2010 (6) Mh.LJ 401, the Scrutiny Committee in the case in hand opined that the ratio so laid down in the case of Apoorva d/o Vinay Nichale (supra) was applicable to the case of present petitioners’ and therefore, refused to acknowledge the certificates of validity relied upon by the petitioners.

23. The learned Counsel for the petitioners heavily criticized the approach of Committee by submitting that the observations of the Committee were ill-founded inasmuch as those person were neither heard nor their certificates of validity are invalidated till the time of recording of said observations. According to learned Counsel, the certificates of validity of the said relatives are very much in operation. This statement of learned Counsel is not disputed by the learned AGP.

24. In case of Apoorva d/o Vinay Nichale (supra), it has been held by this Court that if the Committee is of the view that the earlier certificate is obtained by fraud, it would not be bound to follow the earlier caste validity certificate and Committee is entitled to refuse the caste claim and also in addition initiate proceedings for cancellation of the earlier order. Thus, according to this Court, if the Scrutiny Committee finds on the evidence that validity of the certificate of such relation has been obtained by fraud, then the Scrutiny Committee would not be bound to follow the said caste validity certificate and it would be entitled not only to refuse the caste claim but also at the same time would be at liberty to initiate proceedings for cancellation of the earlier validity certificate.

25. In case in hand, as already noted, the certificates of validity of the relatives of the petitioners are not only in very much operation but the same till date have not been invalidated or cancelled by the Scrutiny Committee after giving an opportunity to the concerned relatives of the petitioners. Therefore, in our considered opinion, the reliance placed by the Scrutiny Committee on the ratio laid down in Apoorva’s case was far fetched and does not in any manner further the stand taken by the Scrutiny Committee.

26. There is need to guard again such observation put on record by the Scrutiny Committee. We have already pointed out how the Committee blinked the contents of pre-constitutional school records. Rather, it was expected of Scrutiny Committee to be more circumspect. We find, instead, approach of Scrutiny Committee absurd and preposterous. The Scrutiny Committee could not have proceeded in absence of concrete and clinching evidence, that too without offering a reasonable opportunity to these relatives of petitioners whose certificates of validity it was questioning.

27. We do not find of having unearthed such an evidence by Scrutiny Committee, which could have disentitled those relatives of their certificates of validity, during said verification. There is no perceptible and tangible basis to opine that certificates of validity of named relations were obtained or secured by suppression of facts or by misrepresentation. The Scrutiny Committee ought to have substantiated its belief by cogent and convincing evidence.

28. Before placing the said observations on record, the Scrutiny Committee ought to have discerned and discovered that in granting certificates of validity to the relations of petitioners, vital evidences had been ignored. It is only in that eventuality it could have decisively differed and observed that certificates of validity granted to the relations of petitioners were procured by suppression of facts or misrepresentation.

29. There were similar obtaining facts in the case of Ms. Snehal Dilip Gaikwad (supra). In this case, the petitioners had placed reliance on the School Leaving Certificates of Vasant Gopalrao Gaikwad (paternal grandfather) and Janardan Gopal Gaikwad (paternal uncle of petitioner’s father). It may be noted here that the above named persons are father and uncle of petitioner No.1 in the present case. There were certificates of validity issued to Arun Chandrakant Gaikwad, Mangesh Arun Gaikwad, Sanjay Suryakant Gaikwad and Shrikant Mahadeo Gaikwad, who are cousins of petitioner. Out of them, Mangesh Arun Gaikwad and Sanjay Suryakant Gaikwad happen to be cousin and cousin nephew respectively of present petitioner No.1.

30. This Court (Coram: S.C.Dharmadhikari & Sandeep K. Shinde, JJ.) after taking into consideration the evidence and in particular the school records of the petitioner’s paternal grandfather and that of uncle of petitioner’s father was of the opinion that the Scrutiny Committee kept out of consideration pre-constitutional documents as well as caste validity certificates of the blood relatives of the petitioner and thus was not justified in discarding this evidence. This Court further held that the petitioner therein had proved that she belongs to Thakar tribe. Thus, facts and the ratio laid down therein are squarely applicable to the case in hand.

31. The Scrutiny Committee was also of the opinion that the petitioners or their family members could not prove cultural affinity vis-a-vis. Thakar Tribe. At paragraph No. 5 of the impugned judgment, it is noted that, according to petitioners, they celebrate festival of Diwali, their community God are Khandoba and deity Bhavani of Tulzapur, traditionally their avocation is to perform marriages and to give and take wards in marriages to and from K- Thakar, Ka-Thakar, M-Thakar, Ma-Thakar and Thakar tribes. Thus, according to Scrutiny Committee, the lifestyle of petitioners’ community is actually different than genuine Thakar tribe and hence they fail to prove cultural affinity test.

32. In Anand Vs. Committee for Scrutiny and Verification of Tribe Claims and Ors. 2012 (1) SCC, the Hon’ble Apex Court held that while applying the affinity test, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor, however, with the migration, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of a tribe and therefore, the affinity test may not be regarded as a litmus test for establishing the link of the applicant with a scheduled tribe.

33. The Apex Court in the said judgment also observed that the petitioner could not be denied benefit on the ground that his present traits do not match his tribe’s peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies etc., and thus the affinity test can only be used to corroborate the documentary evidence and should not be the sole criteria to reject the claim.

34. At the cost of repetition, we reiterate that the Committee not only overlooked the pre- constitutional school records of father of petitioner No.1 and his relatives but also the caste certificates issued in favour of the petitioners and caste validity certificates in favour of various relatives of the petitioners.

35. In our considered view, rejection of claim of petitioners’ on the ground of failure to establish cultural affinity was absolutely unwarranted in the facts and circumstances of case and therefore that finding cannot be sustained.

36. The Scrutiny Committee then found that since beginning the petitioners claimed that the original place of residence of their family is Madha, Taluka- Madha, District Solapur. Even school records of blood relations since 1916 prove that petitioners’ family members were permanent residents of Madha. According to Scrutiny Committee, before Area Restriction Removal Order of 1976 came into force, petitioners’ village/ Taluka Madha had no connection even remotely to the areas where the tribe Thakar presumed to have been resided. Similarly, the petitioners’ could not produce any evidence to show that their ancestors migrated, before the Removal of Area Restriction, from the area of Thakar Tribe to present place of residence.

37. By an order dated 5th December, 2009, Writ Petition No. 2152 of 2007 filed by Jaywant Dilip Pawar v. State of Maharashtra and Others came to be rejected on the premise that the petitioner had failed to show that the real brother of the petitioner was granted validity certificate after applying affinity test and therefore, in the opinion of this Court, the petitioner would not be entitled to rely on that certificate.

38. The order of this Court dated 5th December, 2009 was carried in Appeal before the Hon’ble Apex Court. It would be pertinent to reproduce the order passed by the Hon’ble Apex Court dated 8th March, 2017 which reads thus :-
“1. The short point raised by learned counsel for the appellants in these appeals is that after 'The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976' (Act No.108 of 1976) was published in the Gazette on 20.09.1976, the area restriction of Scheduled Tribes in the State of Maharashtra for the Thakur community has been deleted and all members of Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur and Ma Thakar community are treated to be Scheduled Tribes. The Scrutiny Committee has negated the claim of the appellants on the ground that the relatives of the appellants were not residents of the areas mentioned in the Presidential Order, 1956 and further they were not able to give any details of customs and traditions being observed by the said community.
2. In our considered opinion, that is wholly irrelevant. The appellants have only to establish that they belong to the community mentioned at Serial No.44 of Part IX of Second Schedule of Act No.108 of 1976.
3. The High Court has dismissed the Writ Petitions preferred by the appellants only on the ground that the Scrutiny Committee had given detailed reasons and the Court will not go into the merits of the matter afresh.
4. In our considered opinion, the approach of the High Court was totally erroneous. It ought to have considered the Act No.108 of 1976 and given its own reasoning.
5. We, therefore, set aside the impugned order passed by the High Court and remand the matter back to the High Court for expeditiously deciding the matter afresh in accordance with law.
6. The Civil Appeals as well as the Special Leave Petitions are disposed of in the above terms”.

39. The Hon’ble Apex Court has thus observed that these petitioners have only to establish that they belong to the community mentioned at Serial No.44 of Part IX of Second Schedule of Act No.108 of 1976 and in that light record reasons and decide the matter afresh and in accordance with law.

40. In our view, if a Thakar was declared by the parliamentary enactment to be a Scheduled Tribe and if the documentary evidence before the Scrutiny Committee showed that the petitioners are Thakar, except only one document as we have noted earlier which showed that the petitioners were Hindu Thakar, such evidence was not inconsistent with the petitioners claim that they belonged to the Thakar Scheduled Tribe. Since the Thakars have been entered under Entry 44 of the 1976 of the enactment to be a Scheduled Tribe and the documentary evidence on record clearly shows that the petitioners belong to the Scheduled Tribe of Thakar, the petitioners are entitled to succeed.

41. There is one more reason. We have also pointed out during earlier part of our discussion that certificates of validity of the close relations were also relied on by the petitioners before Scrutiny Committee but for some observations, which we have already dealt with, the Scrutiny Committee refused to give weightage to those certificates of validity. During the course of discussion, we have pointed out how the observations of the Scrutiny Committee were misplaced and absurd.

42. The Division Bench of this Court in case of Apoorva d/o Vinay Nichale (supra) held that if the caste claim of the candidate has been held to be belonging to Scheduled Tribe, then other close blood relatives cannot be denied the validity certificate. In the light of ratio laid down by this Court in case of Apoorva d/o Vinay Nichale (supra) as the petitioners’ real cousins are already granted caste validity certificates as belonging to Thakar- Scheduled Tribe, in that view of the matter, the present petitioners also deserve the similar certificates of validity.

43. We may usefully draw attention to the judgment of this Court (Coram : R.D.Dhanuka & Madhav J. Jamdar, JJ.) in case of Smt. Jayshree d/o Subhash Suryawanshi @ Smt. Jayshree w/o Nitin Thakur Versus The State of Maharashtra and others in Writ Petition No. 2230 of 2013 decided on 8th January, 2021. After adverting to judgment of the Hon’ble Apex Court given in case of Jaywant Dilip Pawar (supra), this Court held that the Scrutiny Committee thus could not have relied upon the provisions of the Bombay Reorganization Act, 1960 while rejecting the caste claim of the petitioner on the ground of area restriction and the view of the Scrutiny Committee was found to be ex facie contrary to the principles of law laid down by the Supreme Court in the case of Jaywant Dilip Pawar (supra). We are respectfully bound by the observations so made by this Court.

44. For the aforesaid reasons, we do no find merits in the submission of learned AGP that caste claim of the petitioners was totally considered in the light of documentary as well as other evidence like affinity test and area restriction.

45. In our view, the impugned order dated 15th June, 2016 passed by the Scrutiny Committee invalidating the claim of the petitioner is totally perverse and is unsustainable.

46. We, therefore, pass the following order :-
ORDER
(i) The impugned order dated 15th June, 2016 passed by the respondent No.1- Scheduled Tribe Caste Certificate Verification Committee, Pune Division, Pune (Exhibit-B to the petition) is hereby quashed and set aside;
(ii) Respondent No.1- Scheduled Tribe Caste Certificate Verification Committee, Pune Division, Pune is hereby directed to issue caste validity certificates in favour of the petitioners as “Thakar (ST-44)” within a period of four weeks from the date of communication of this order;
(iii) Rule is made absolute in aforesaid terms.
(iv) There shall be no order as to costs.