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2019 DIGILAW 631 (BOM)

PALLAVI D/O SHRI PRAKASHRAO PAWAR v. SCHEDULED TRIBE CASTE CERTIFICATE SCRUTINY COMMITTEE, THROUGH ITS MEMBER SECRETARY, CHAPRASIPURA, AMRAVATI

2019-03-05

R.K.DESHPANDE, VINAY JOSHI

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JUDGMENT : R. K. DESHPANDE, J. 1. These two petitions are filed by the daughter, father and son to claim validity certificate as "Thakur" Scheduled Tribe. The claims have been invalidated by the common order dated 04.08.2017 passed by the respondent No. 1. - Scheduled Tribe Caste Certificate Scrutiny Committee, Amravati. 2. Rule made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties. 3. The Committee has relied upon two entries in the name of Lakkya Tukaram, cousin grand father of the petitioner - Ku. Pallavi d/o Shri Prakashrao Pawar, recording entry as "Bhat" in the caste column on 05.08.1930 and 16.12.1930. The Committee has also placed reliance upon the decision of Full Bench of this Court in case of Shilpa Vishnu Thakur Vs. State of Maharashtra and others, reported in, (2009) 5 AIRBomR 478 holding that the petitioner has failed to satisfy the affinity test. 4. Undisputedly, the petitioners produced before Committee five documents indicating the caste as "Thakur" in relation to the blood relatives of the petitioners prior to 1950 even subsequent to 1950, all other documents out of total 41 documents placed on record indicating the entry caste as "Thakur". The birth register extract in the name of Tukaram about the father of Lakkya Tukaram, the caste is shown as "Thakur" recorded on 22.09.1918. Similarly, in the another entry in the name of Zama - great grand father of the petitioner - Ku. Pallavi d/o Shri Prakashrao Pawar, the caste is shown as "Thakur" recorded on 19.04.1916 was also placed on record of the Committee in response to the show cause notice. The genuineness and validity of these documents are not disputed and the same are not considered by the Committee. The claims are rejected only on the basis of entries in the name of Lakkya Tukaram. 5. So far as the decision of the Full Bench of this Court is concerned in case of Shilpa Vishnu Thakur cited supra, the same is considered by the Division Bench of this Court in the judgment dated 22.02.2019 in case of Prakash S/o Shrawan Deore Vs. Scheduled Tribe Certificate Scrutiny Committee, Nashik & another delivered in writ petition No. 2363/2013. Para No. 12 of the said decision is being relevant to reproduced below:- "12. Scheduled Tribe Certificate Scrutiny Committee, Nashik & another delivered in writ petition No. 2363/2013. Para No. 12 of the said decision is being relevant to reproduced below:- "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 import 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., 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 practicing 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-rules. We do not understand the propriety in citing the judgment which is impliedly over-ruled." 6. In view of the facts that the oldest documents of 1916 and 1918 having probative value along with other five documents considered by the Committee showing the caste of petitioners or their blood relatives as Thakur, we are of the view that the Committee has committed an error in holding that the petitioners have failed to establish the claim for "Thakur" Scheduled Tribe. In view of the decision of this Court in writ petition No. 2363/2013, the Committee has also fallen in error in applying affinity test which is held to be merely corroborative and the test of documents having probative value indicating the entry as "Thakur" shall have predominant role in deciding the claims. 7. We find that the petitioners have established their claim of "Thakur" Scheduled Tribe. As a result, the petitions are allowed and the common order passed by the Scheduled Tribe Caste Certificate Scrutiny Committee dated 04.08.2017 is hereby quashed and set aside. 8. 7. We find that the petitioners have established their claim of "Thakur" Scheduled Tribe. As a result, the petitions are allowed and the common order passed by the Scheduled Tribe Caste Certificate Scrutiny Committee dated 04.08.2017 is hereby quashed and set aside. 8. The claims of the petitioners are held to be valid for "Thakur" Scheduled Tribe which is an entry at Serial No. 44 in the Constitution (Scheduled Tribes) Order, 1950. 9. The Committee is directed to issue caste validity certificates in the names of the petitioners within a period of one month from today. 10. The petitioners shall be entitled to all consequential benefits and concessions even without waiting for caste validity certificates. No costs.