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2021 DIGILAW 1651 (BOM)

Rushikesh Deepak Chavan v. State of Maharashtra

2021-12-04

ABHAY AHUJA, R.D.DHANUKA

body2021
JUDGMENT 1. Rule. Learned AGP waives service on behalf of the respondents no. 1 to 4. Learned advocates waive service on behalf of respondent no.7. Respondent nos. 5 and 6 are Educational Institutes stated to be under the control of respondents no. 3 and 4 and have been duly served. At the request and with consent of the counsel for the parties, rule made returnable forthwith. 2. By this petition, filed under Article 226 of the Constitution of India, petitioner is seeking to challenge the legality and validity of the common judgment and order dated 29th August 2018 passed by the respondent no. 2-Scrutiny Committee to issue certificate of validity of the petitioners as belonging to Thakur Scheduled Tribe. 3. When this matter was listed on 30th November 2021, Mr. Mendadkar, learned counsel for petitioners invited our attention to the admission notice dated 16th November 2021 for MBA/MMS for the academic year 2021-22 issued by the State Common Entrance Test Cell submitting that the scheduled date for the candidates including petitioners to submit the caste/tribe validity certificate was on or before 8th December 2021 upto 5.00 p.m. Since the said admission notice was issued by the State Common Entrance Test Cell, Maharashtra State, Mumbai, leave was sought and granted to petitioners to implead the State Common Entrance Cell as respondent no.7. Petitioners have carried out the said amendment and today learned counsel representing the State Common Entrance Cell is present before this Court and submits the veracity of the date of 8th December 2021 upto 5.00 p.m. as being the time limit by which the Tribe validity certificate is to be submitted by the candidate. 4. In view thereof, at the request of the counsel for the petitioners and with their consent, we are hearing this petition finally. 5. It is the case of petitioners that they belong to the Thakur Schedule Tribe. Petitioner no.1 was granted admission to the respondent no.5-college in the direct second year of engineering degree course during the academic year 2018-19 under the reserved category and petitioner no.2 was granted admission to the first year of MBA degree course in respondent no.6 college under the said category during the academic year 2017-18. 6. Mr. Mendadkar, learned counsel for petitioners takes us to the genealogical tree as set out on page no. 6. Mr. Mendadkar, learned counsel for petitioners takes us to the genealogical tree as set out on page no. 58 of the petition and submits that the petitioners came from the blood line from common ancestor Ragho Thakur, great- great- grandfather from whom came great grand father Shri Krishna Thakur and whose son was Shri Babu alias Baburao, who was born on 1st January 1911 (as seen from the school records at page 54) who is the great grand father of the petitioners. From Baburao came Narayan, who is grand father of petitioners born on 18th June 1932. From Narayan came Shri Deepak who born on 9th March 1970, who is petitioners father. 7. Mr. Mendadkar submits that the school admission records of Babu Krishna Thakur, Narayan, Deepak which are listed on pages 54 and 55 of the petition being part of the vigilance cell report dated 9th August 2018 clearly indicate that they belong to the Thakur Schedule Tribe. Learned counsel also refers to the observations on page 54 of the vigilance cell report with respect to Babu Krishna Thakur, who is the great grand father of petitioners, Narayan Babulal Chavan, who is the grand father of the petitioners, Mr. Jagannath Babulal Chavan as well as Hiralal Babulal Chavan, cousin grand fathers, Sakhubhai Baburao Chavan and Indubai Baburao Chavan grand mothers and submits that all these documents are pre-constitutional documents in favour of the paternal blood relatives as well as close relatives of the petitioners coming from common blood line and which have been duly verified clearly establish petitioners claim to the Thakur Schedule Tribe, which the scrutiny committee has completely ignored and not applied its mind. 8. Learned counsel submits that in view of law as settled of by the decision of the Honble Supreme Court, in the case of Anand Vs. Committee for Scrutiny and Verification of Tribe Claims and Ors, (2012) 1 SCC 113 , it has been stressed that while dealing with the documentary evidence greater reliance ought to be placed on pre-independence documents because they furnish a higher degree of probative value to the declaration of status of a caste as compared to the post-independence documents. Committee for Scrutiny and Verification of Tribe Claims and Ors, (2012) 1 SCC 113 , it has been stressed that while dealing with the documentary evidence greater reliance ought to be placed on pre-independence documents because they furnish a higher degree of probative value to the declaration of status of a caste as compared to the post-independence documents. He further submits that the scrutiny committee has even completely erred in failing to consider that petitioners maternal uncle and cousin cousin paternal aunt are admittedly caste validity certificate holders as can be seen from paragraph 11 of the impugned order. 9. He would submit that while the scrutiny committee has completely failed to consider the pre-constitutional documents set out in the vigilance cell report, only on the basis that petitioners have not been able to prove cultural affinity to the Thakur Scheduled Tribe rejected the claim of petitioners relying on the decision dated 1st August 2018 in the case of Chhaya Jasvantsingh Hajari Vs.The Committee for Scrutiny and Anr. in Writ Petition No. 4198 of 2005 which decision has been held to be per incuriam by a later decision of this Court in the case of Prakash Shrawan Deore Vs. Scheduled Tribe Certificate Scrutiny Committee, Nashik in writ petition no. 2363 of 2013. 10. Learned counsel for the petitioners would submit that while considering the issue of affinity test, which as per settled law in the case of Anand (supra), is only corroborative and cannot be used as litmus test, the scrutiny committee has completely ignored findings in the vigilance cell report under the caption of home inquiry at page 55 of the petition, which sets out the peculiar traits, deity, rituals, customs, mode of marriage, etc.of the petitioners which resemble those of the Thakur Scheduled Tribe. 11. On the other hand, Mrs. Gavhane, learned AGP for the State, while opposing the above submissions, draws attention of this Court to page 51 of the petition which contains report of the research officer dated 14th August 2018 holding that the aforementioned characteristics of petitioners do not match the Thakur Schedule Tribe. 12. Learned AGP submits that the documents submitted by the petitioners do not prove the petitioners claim to Thakur Scheduled Tribe as the same cannot be relied upon. 13. 12. Learned AGP submits that the documents submitted by the petitioners do not prove the petitioners claim to Thakur Scheduled Tribe as the same cannot be relied upon. 13. She submits that petitioners have failed the cultural affinity test, which, as is well settled in accordance with the decision in the case of Anand (supra), cannot be disregarded. She submits that the burden of proving caste claim is upon the applicant. He not only has to produce all the requisite documents in support of his claim but also pass the affinity test. The scope of inquiry of the vigilance officer is broad based and is not confined only to verification of documents filed by the applicant but the inquiry supposed to be conducted by the vigilance officer would include the affinity test of the applicant to a particular Tribe and the inquiry into kinship and affinity of the applicant to a particular Scheduled Tribe is not alien to the scheme of Act and the Rules. She submits that infact, affinity test is relevant and germane to the determination of social status of an applicant and relies upon paragraph 20 of the decision of the Honble Supreme Court in the case of Anand (supra). 14. We have heard the learned counsel for the parties for some time and also with their able assistance perused the various documents annexed to the petition. 15. The principles for determination of Tribe claim as elucidated by both the learned counsel can in no way be faulted with. It is however well settled that pre-constitutional/pre-independence documents have probative value to the declaration of the status of a caste/tribe claim and that affinity test is not a litmus test and may be used to corroborate documentary evidence and should not be the sole criteria to reject a claim. 16. However, we observe that the scrutiny committee failed to consider the vigilance cell report dated 9th August 2018, while rejecting petitioners claim to Thakur Scheduled Tribe. The observations with respect to the documents listed at paragraph no. 24 of the vigilance cell report dated 9th August 2018 also do not appear to have been appreciated/dealt with by the scrutiny committee. The importance of the pre-independence documents in the case of relatives coming from a common ancestor need not be over emphasised. The observations with respect to the documents listed at paragraph no. 24 of the vigilance cell report dated 9th August 2018 also do not appear to have been appreciated/dealt with by the scrutiny committee. The importance of the pre-independence documents in the case of relatives coming from a common ancestor need not be over emphasised. The scrutiny committee also does not appear to have considered the observations in paragraph 29 with respect to home inquiry. 17. Moreover, it is settled law as also held in the decision of this Court in the case of Nikhil s/o Anil Thakur Vs. State of Maharashtra and ors. in Writ Petition No. 11344 of 2019 that the caste validity certificate issued in favour of near relatives can also to be considered for determination of the caste claim of an applicant which in this case as set out above appears to be completely ignored, in respect of petitioners maternal uncle and cousin cousin paternal aunt. 18. We are, therefore, of the view that the interests of justice would be served by remanding the matter back for fresh consideration by the scrutiny committee. 19. We, therefore, set aside the order dated 29th August, 2018 of the respondent no.2- cast scrutiny committee and remand the matter back to the scrutiny committee for fresh consideration. All contentions of the parties are kept open. 20. Though we do not propose to interfere with the case management/hearing schedule/roster of the respondent-caste scrutiny committee, keeping in mind that the last date for submission of Tribe validity certificate for admission to the course of MBA//MMS for the academic year 2021-22 is 8th December 2021 upto 5.00 p.m., we direct the respondent no.2- caste scrutiny committee to decide the claim after considering all the documents and submissions of the parties as soon as possible, but no later than by 7th December 2021, 5.00 p.m. The petitioners are directed to appear before the respondent no.2-Caste Scrutiny Committee at 11.00 a.m. on 6th December, 2021 alongwith copy of the order. This order shall not be used as a precedent in any other matter and is passed in view of the peculiar facts and circumstances of this case. 21. Learned AGP agrees to convey this order to the respondent no.2-Caste Scrutiny Committee for information and compliance. 22. Petition accordingly stands disposed with the aforesaid directions. Rule is made absolute in aforesaid terms. No costs. 23. 21. Learned AGP agrees to convey this order to the respondent no.2-Caste Scrutiny Committee for information and compliance. 22. Petition accordingly stands disposed with the aforesaid directions. Rule is made absolute in aforesaid terms. No costs. 23. Parties to act upon an authenticated copy of this order.