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2021 DIGILAW 121 (BOM)

Sushant v. Director Of Techninal Education

2021-01-19

S.V.GANGAPURWALA, SHRIKANT D.KULKARNI

body2021
JUDGMENT Shrikant D. Kulkarni, J. - Rule. Rule made returnable forthwith. With the consent of learned counsel for both the sides, taken up for final hearing at admission stage. 2. Feeling aggrieved by the impugned order passed by respondent No.3 / Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar (hereinafter referred to as the "committee") thereby invalidating caste claim of the petitioner as belonging to "Thakur Scheduled Tribe", the petitioner has approached this Court by invoking writ jurisdiction under Article 226 of the Constitution of India. 3. The factual matrix is as under: The petitioner while prosecuting studies in Junior College, his tribe claim was referred for its verification to the committee. The petitioner submitted all the necessary documents right from the pre-independence era in support of his tribe claim. The committee has conducted the vigilance enquiry. The petitioner has submitted his reply to the show cause notice issued by the committee. The committee has invalidated the tribe claim of the petitioner as being "Thakur" Scheduled Tribe without considering the old record. In this background, the petitioner is before us. 4. Heard Mr. M.S. Deshmukh, Advocate for the petitioner and Mr. P.S. Patil, Addl. G.P. for respondent Nos.1 to 3 / State. 5. Mr. Deshmukh, learned counsel for the petitioner invited our attention to the impugned order and vigilance report. He submitted that the petitioner has produced old record of his forefathers right from the years 1919, 1921, 1922, 1926, 1929, 1932, 1935 and 1945, which are of the pre-independence era. The documentary evidence in the form of school admission record and extract of the birth register of his forefathers clearly speaks about recording of caste as "Thakur" right from the year 1919. The committee has discarded old documentary evidence without assigning cogent reasons. 6. The documents of the pre-independence era have more probative value and needs to be accepted and relied upon when there is no contra evidence. He submitted that the genealogy is not disputed by the committee. He submitted that the committee has simply considered two contra entries pertaining to cousin cousin grandfather of the petitioner namely Devidas Bhuta Thakur and Udesing Vitthal Thakur, in whose school record, their caste is recorded as Brahmabhat and Brahmabhat Thakur respectively dated 06.03.1950 and10.031951. He submitted that the petitioner has denied the relationship with Devidas Bhuta Thakur and Udesing Vitthal Thakur while submitting reply to the vigilance report. 7. He submitted that the petitioner has denied the relationship with Devidas Bhuta Thakur and Udesing Vitthal Thakur while submitting reply to the vigilance report. 7. He submitted that there is clinching evidence to establish the caste of the family of the petitioner. The above said two contra entries do not hold any evidentiary value. The committee has given unnecessary weightage to those contra entries and discarded the tribe claim of the petitioner. He submitted that validity certificates of petitioners blood relatives from parental side are discarded on flimsy grounds. He submitted that the impugned order passed by the committee is perverse. The findings recorded by the committee are erroneous. The impugned order is defective in the eye of law and it needs to be quashed and set aside. 8. Per contra, Mr. P.S. Patil, learned Addl. G.P for respondent Nos. 1 to 3 / State submitted that the committee has taken into consideration all the documentary evidence, which are placed on record by the petitioner in support of his tribe claim as well as the evidence collected during the vigilance enquiry. It is found during the vigilance enquiry that there are contra entries pertaining to the cousin cousin grandfather of the petitioner namely Dividas Bhuta Thakur and Udesing Vitthal Thakur. Mr. Patil submitted that the committee has examined all the documentary evidence relied by the petitioner and arrived at conclusion that the petitioner has failed to prove his tribe claim as "Thakur" Scheduled Tribe on the basis of documentary evidence. 9. The committee has also recorded the finding that the petitioner has failed to prove the affinity test. The findings recorded by the committee are well reasoned. Those are supported by various decisions of the Hon'ble Supreme Court and the Bombay High Court, which are referred by the committee. He submitted that there is no legal defect in the impugned order and as such, there is no need to interfere with the decision of the committee. 10. We have considered the arguments advanced by the learned counsel for the petitioner and the learned Addl. G.P. We have also perused the impugned order passed by the committee as well as the documentary evidence and vigilance report with reply submitted by the petitioner. 11. 10. We have considered the arguments advanced by the learned counsel for the petitioner and the learned Addl. G.P. We have also perused the impugned order passed by the committee as well as the documentary evidence and vigilance report with reply submitted by the petitioner. 11. On perusing the impugned order passed by the committee, it is found that the committee has invalidated the claim of the petitioner on the following three issues : (i) The petitioner has failed to prove his tribe claim on the basis of documentary evidence. (ii) The petitioner is not entitled to take benefit of validity certificate issued to his blood relative. (iii) The petitioner has failed to prove the affinity test. 12. It is evident from the record that the petitioner has placed on record the old documentary evidence of his forefathers in the form of school record right from the year 1919, it would be convenient to reproduce that stock of evidence, which is as under. 13. The committee has conducted the vigilance through the vigilance officer and found following two entries as contra evidence. 14. It is material to note that while giving the reply to the vigilance report, the petitioner has denied his relationship with the above said two cousin cousin grandfather projected by the committee. Those entries of the year 1950 and 1951 showing their caste as "Brahmabhat" / Brahmabhat (Thakur). There is no need to place reliance on the above said two isolated entries calling them as contra evidence, when clinching documentary evidence of pre-independence era is placed on record by the petitioner right from the year 1919 as recorded above, clearly showing the caste of his family as "Thakur". Gulabsingh Khumansing Thakur happens to be real grandfather of the petitioner. In the school record of the petitioner's grandfather, in the caste column, his caste is recorded as "Thakur" and the said documentary evidence is of 02.04.1921. The petitioner has placed on record old documentary evidence of his cousin grandfathers namely Anandsing Karansing Thakur, Ramsing Himmatsing Thakur, Bhagwan Guman Thakur, Bharta Khuman Naval Lambkanikar, Raghunath Guman Thakur and Dhansing Chandrasing Thakur, wherein their caste is recorded as "Thakur" and that too before the pre-independence era. 15. The stock of above referred documents right from the year 1919 to 1945 clearly shows the caste as "Thakur". 15. The stock of above referred documents right from the year 1919 to 1945 clearly shows the caste as "Thakur". The vigilance officer has not placed on record any contra evidence in respect of the above said entries while conducting the vigilance. It is not the case of the committee that those entries are manipulated. As such, the entries of pre-independence era needs to be relied upon and accepted since they have more probative value. The committee has overlooked this aspect and discarded the tribe claim of the petitioner by relying upon two contra entries of the year 1950 and 1951. 16. The petitioner has also placed reliance on the caste certificate of Pradip Tryambak Mahale, Suraj Prakash Thakur, Shobha Mahesh Jadhav, Pandurang Bhagwan Chavan and Sandip Tryambak Thakur. The committee has refused to extend the benefit of those caste validity certificates to the petitioner by giving reason that they are not the blood relatives of the petitioner. The petitioner has given genealogy and established the relationship with Pradeep S/o Tryambak blood relative. The committee has not disputed that genealogy, as such, the committee can not refuse to extend the benefit of caste validity certificate issued in favour of blood relative of the petitioner from paternal side in view of the ratio laid down in case of Apoorva D/o Vinay Nichale Vs. Divisional Caste Certificate Scrutiny Committee No. 1 and others reported in 2010 (6) Mh.L.J. 401 , when there is no legal impediment before the committee. 17. The committee has also observed that the family of the petitioner is not migrated from tribal area. That observation made by the committee is again erroneous. The Parliament has enacted "The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976". It is precisely to over come the difficulties of the tribals. After that amendment, it is not permissible to rely on the area restrictions placed by the order of 1950. They are removed in order to enable the persons not residing in the five districts identified as permanently inhabited by Thakurs to claim benefits and concessions so also relaxation in Government employment and elections. That view is expressed in the decision rendered by the Division Bench in case of Mayuri Sunil Thakur Vs. State of Maharashtra and Ors. (Writ Petition No.8738 of 2019 dated 09.08.2019 at principal seat Bombay). That view is expressed in the decision rendered by the Division Bench in case of Mayuri Sunil Thakur Vs. State of Maharashtra and Ors. (Writ Petition No.8738 of 2019 dated 09.08.2019 at principal seat Bombay). As such, the observations made by the committee regarding absence of migration of petitioner's family are certainly erroneous. 18. The committee has further held that the petitioner has failed to prove the affinity test. The finding recorded by the committee is found erroneous. It is held by the Hon'ble Supreme Court in case of Anand Vs. Committee for Scrutiny and Verification of Tribe claim and ors. reported in (2012)1 SCC113, that the affinity test is not a litmus test for establishing the link of the petitioner to be Scheduled Tribe. The affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim. 19. Having regard to the above reasons and discussions, it is clear that the petitioner has proved his tribe claim as "Thakur" Scheduled Tribe by producing old record of pre-independence era. He has also succeeded in establishing relationship with validity holder and therefore, he is entitled to get benefit of that validity certificate issued in favour of blood relative of the petitioner from parental side. The impugned order passed by the committee dated 15.01.2021, thereby invalidating tribe claim of the petitioner needs to be quashed and set aside.20. In light of the above, we proceed to pass the following order. ORDER (i) The writ petition is allowed. (ii) The impugned judgment and order of the Committee is quashed and set aside. (iii) The Committee shall issue validity certificate to the petitioner of "Thakur" Scheduled Tribe immediately. (iv) The said validity certificate would be subject to the decision that would be taken by the committee in the proceedings re-opened of the validity holders relied by the petitioner. (v) Rule is made absolute accordingly. (vi) The writ petition is disposed of. No order as to costs.