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2021 DIGILAW 61 (BOM)

Nikhil v. State of Maharashtra

2021-01-12

ABHAY AHUJA, SUNIL P.DESHMUKH

body2021
JUDGMENT Abhay Ahuja, J. - Heard. Rule. Rule made returnable forthwith. With the consent of the learned Counsel appearing for the parties, the petitions are heard finally. 2. By these petitions under Article 226 of the Constitution of India, Petitioners are challenging the decision dated 04.09.2019 of Respondent No. 2- Scheduled Tribe Certificate Scrutiny Committee, Nandurbar invalidating the tribe claims of the petitioners belonging to "Thakur Scheduled Tribe" community. 3. Since both the Petitions, one i.e Writ Petition No. 11349 of 2019 by the father viz. Shri Anil Soma Thakur and the other Writ Petition No, 11344 of 2019 by his son viz. Nikhil Anil Thakur involve challenge to the same common order having similar underlying facts, we are disposing of both these petitions by this order and judgment. 4. The Petitioners, residents of Jalgaon District, claim that they belong to 'Thakur Scheduled Tribe' community included in the list of Scheduled Tribes at Sr. No.44 of Part IX of Second Schedule of Act No. 108 of 1976. Petitioners had been issued Caste Certificates by the concerned Competent Authority(s) certifying that the Petitioners belong to Thakur - Scheduled Tribe. The said caste Certificates were referred to the respective Scrutiny Committees for verification. At that time in the case of the father it was the Nashik Scrutiny Committee and in the case of the son it was the Nandurbar Committee. The respective Scrutiny Committees referred the matters to the respective Vigilance Cells, who submitted their respective reports after which Show Cause Notices were issued along with copies of the respective vigilance reports to the Petitioners. The Petitioners filed their replies to the same. Thereafter, the Nashik Committee transferred the file of the father to the Nadurbar Committee, which led to a re-inquiry in the case of the son. It is submitted that the Nandurbar Committee obtained contra evidence of the persons not in blood relation of the father. The said Vigilance Cell Report pursuant to re-inquiry was served on the son vide Show Cause Notice to which reply was filed. Thereafter the Scrutiny Committee after granting personal hearing to the Petitioners has passed the impugned order dated 04.09.2019 invalidating the tribe claims of the Petitioners to Thakur Scheduled Tribe. These facts are not disputed by the Respondents. 5. The said Vigilance Cell Report pursuant to re-inquiry was served on the son vide Show Cause Notice to which reply was filed. Thereafter the Scrutiny Committee after granting personal hearing to the Petitioners has passed the impugned order dated 04.09.2019 invalidating the tribe claims of the Petitioners to Thakur Scheduled Tribe. These facts are not disputed by the Respondents. 5. The Petitioners are by these petitions seeking directions of this Court quashing and setting aside of the impugned decision and order of the Committee dated 4.9.2019 invalidating the Tribe Claim of the Petitioners and a declaration that Petitioners belong to 'Thakur Scheduled Tribe'. 6. It is submitted that while the tribe claims of the petitioners were pending with the Scrutiny Committee and a Certificate of caste validity was required by the son viz. Nikhil, Writ Petition No. 8386 of 2014 as well as Writ Petition No. 9788 of 2017 seeking appropriate directions to the respondents were filed, wherein this Court passed the following orders dated 05.11.2014 and 07.12.2017 respectively. Order dated 05.11.2014 in WP No. 8386 of 2014 "1. Though respondents 3 and 4 are served, none appears for respondents no.3 and 4. 2. Learned counsel for petitioner submits that, validation proceeding in respect of Tribe claim of the petitioner is pending. However, the respondents are seeking to take action against the petitioner for non submission of validity Certificate. 3. Learned counsel for respondent No.2- Committee states that because of the large pendency of the matters and vacancy of Vice Chairman, it would take some time. To get the proceeding decided within stipulated period is not in the hands of litigant. Considering above, we pass following order. O R D E R The respondent No.2 shall decide the validation proceeding in respect of the Tribe Claim of the petitioner expeditiously and preferably within ONE YEAR. The petitioner shall cooperate in expeditious disposal of the said proceeding. Respondents No.3 and 4 shall not take any coercive steps against the petitioner only on the ground that validation proceeding are pending. 4. Writ petition accordingly disposed of. No costs". Order dated 07.12.2017 in WP No. 9788 of 2017 "1. Mr.Patil, AGP on instructions states that within four months proceedings would be decided in respect of the tribe claim of the petitioner. 2. Mr.Golegaonkar, learned Advocate submits the University has already issued mark memo of the second year. 4. Writ petition accordingly disposed of. No costs". Order dated 07.12.2017 in WP No. 9788 of 2017 "1. Mr.Patil, AGP on instructions states that within four months proceedings would be decided in respect of the tribe claim of the petitioner. 2. Mr.Golegaonkar, learned Advocate submits the University has already issued mark memo of the second year. In case there is no impediment then respondent shall declare the result of 4,6, & 8 semester and issue mark memo. However, shall not issue any degree Certificate till the validation proceedings are decided. The writ petition stands disposed of. No costs". 7. Petitioners have along with their proposal for verification of tribe claim, submitted the documents referred to in paragraph -5 of the Writ Petitions, which the Respondents have not disputed. The Petitioners submit that their caste mentioned as "Hindu Thakur/Hindu Thakur Scheduled Tribe" since admission in 1st standard in the school leaving Certificates. Also in the case of Pankaj Anil Thakur, who is the son of Shri Anil Soma Thakur and brother of Nikhil Anil Thakur, the school leaving Certificate mentions the caste as "Thakur scheduled tribe". It is submitted that the service record of Shri Anil Soma Thakur also refers to the religion as "Hindu Thakur-Scheduled Tribe". It is further submitted that Shri Anil Soma Thakur is the son of Shri Soma Raoji Thakur. Also in the case of Shri Pravin Soma Thakur who is shown as the brother of Shri Anil Soma Thakur and real paternal uncle of Nikhil Anil Thakur, in the school leaving Certificate the caste is mentioned as "Hindu - Thakur- Scheduled Tribe". The school leaving Certificate of Shri Soma Raoji Thakur, mentions the religion and caste as "Hindu Thakur". It is submitted that Shri Soma Raoji Thakur's tribe claim was referred to the Scrutiny Committee, Nashik for verification and the Scrutiny Committee issued him Certificate of validity dated 15.09.1999 validating his claim as belonging to Thakur Scheduled Tribe as per copy of Certificate of validity at page 51/52 to the petition. So also in the school record of Shri Dhondu Raoji Thakur who is shown as the cousin uncle of Shri Anil Soma Thakur and Nikhil's cousin grandfather, the caste is mentioned as "Thakur" in his school leaving Certificate. So also in the school record of Shri Dhondu Raoji Thakur who is shown as the cousin uncle of Shri Anil Soma Thakur and Nikhil's cousin grandfather, the caste is mentioned as "Thakur" in his school leaving Certificate. The school record of Raoji Zipru Thakur who is shown as the grandfather of Shri Anil Soma Thakur and great grandfather of Nikhil Anil Thakur the school leaving Certificate shows his caste as "Thakur". The school leaving Certificate of Shri Pahuji Zipru Thakur who is shown as the cousin grandfather of Shri Anil Soma Thakur and the cousin great grandfather of Nikhil records his caste as "Thakur". It is further submitted that another cousin grandfather of Shri Anil and cousin great grandfather of Nikhil viz: Kisan Zipru Thakur shows his caste as "Thakur" in the school leaving Certificate. The petitioners have submitted genealogy indicating the above relations which is annexed to the petitions. The school leaving record of Ratnprabha Shravan Thakur referred as Shri Anil's mother and Nikhil's grandmother mentions her caste as "Thakur". It is submitted that her tribe Certificate was submitted to the Caste Scrutiny Committee, Nashik which issued her Certificate of validity dated 06.05.1998 annexed at pages 59/60 to the petition. None of the above facts are disputed by the Respondents. 8. In respect of the above submissions, the petitioners have annexed copies of school leaving Certificates, extract of service book, caste validity Certificate dated 15.09.1999 of Shri Soma Raoji Thakur as well as caste validity Certificate dated 06.05.1998 of Smt. Ratnaprabha Shravan Thakur and also various blood relations and close relatives who are alive, have given their affidavits stating their relation with the Petitioners, which are not controverted by the Respondents. 9. It is also submitted by the petitioners that during vigilance cell inquiry, the Vigilance Officers have verified old records submitted by the petitioners in respect of the father, uncle, grand-father, cousin grand-fathers, great great grandfathers and cousin great great grand-fathers. The traits and characteristics of the community have also been furnished to demonstrate association with Thakur scheduled tribe. The petitioners have also relied upon the Vigilance Cell Enquiry Report dated 25.05.1999 of Soma Ravji Thakur when it is stated that in the school records, the caste of Soma Ravji Thakur is entered as Hindu Thakur, which appears to have been ignored by the Respondent Committee. 10. The petitioners have also relied upon the Vigilance Cell Enquiry Report dated 25.05.1999 of Soma Ravji Thakur when it is stated that in the school records, the caste of Soma Ravji Thakur is entered as Hindu Thakur, which appears to have been ignored by the Respondent Committee. 10. Petitioners are aggrieved that despite the aforesaid evidence supporting the tribe claims of the Petitioners, the Scrutiny Committee has invalidated their tribe claims essentially on the following counts : i) The tribe claim of the petitioners cannot be decided only on the basis of Certificates of validity issued in favour of blood relations of the petitioners. The Committee has discarded the Certificates of validity granted to the blood and close relatives of the petitioners, which according to the petitioners have been granted after conducting vigilance inquiry and verifying documentary evidence. ii) The upper caste Thakur and tribe Thakur exist in Khandesh and Maharashtra. The Committee has distinguished Thakur scheduled tribe with Thakur from upper caste in Khandesh in Maharashtra and referred to Government Resolutions, circulars, Government Gazettes, census reports, district-wise area declared for Scheduled Tribe persons under Maharashtra Land Revenue Code, 1966 to impose area restriction. iii) All the Thakurs are not listed in the Scheduled Tribe category pursuant to the Amendment Act of 1976. The Committee has rejected old documentary evidence prior to independence period on the ground that in those documents only Thakur has been mentioned. iv) The petitioners have not proved their tribe claim either by way of documentary evidence and socio-cultural affinity. Regarding affinity test, the Committee has held that information provided by the petitioners' father and grandfather does not associate with the Thakur scheduled tribe as per the say of the Research Officer. The Committee has observed that though caste flows from father, while assessing social status of the family, their marital relations with Bhat Thakur and Brahmbhat Thakur also need to be considered. (v) The petitioners have not proved their tribe claim pursuant to the law laid down by this High Court and the Apex Court. 11. It is submitted that the son viz. the petitioner Nikhil in Writ Petition No. 11344 of 2019 has completed B.E. (Mechanical Course) in May 2017 and the result has been declared on 12.07.2017. Respondent No.4 University has issued him marks memo, but the degree Certificate has not yet been issued to him. 11. It is submitted that the son viz. the petitioner Nikhil in Writ Petition No. 11344 of 2019 has completed B.E. (Mechanical Course) in May 2017 and the result has been declared on 12.07.2017. Respondent No.4 University has issued him marks memo, but the degree Certificate has not yet been issued to him. The grievance is that Nikhil is unable to prosecute further studies as well as unable to get employment for want of degree Certificate. He has also appeared for the examination held by Railway Recruitment Board in May 2019. Petitioners are anxious that for want of Certificate of validity, Nikhil will not be able to get employment in the scheduled tribe category, and therefore, there is urgency in the matters. Shri Anil Soma Thakur, it is submitted is working as Assistant Accountant / Auditor in the service of the Maharashtra State Electricity Distribution Company Limited, which is arrayed as Respondent No.3 in Writ Petition No. 11349 of 2019 and is presently on the verge of retirement. There is apprehension that his employer may take adverse action on the basis of the impugned order dated 04.09.2019 and therefore there is urgency on this count too. 12. In the circumstances, the petitioners have approached this Court challenging the legality, validity and correctness of the decision dated 04.09.2019 of the Scrutiny Committee, Nandurbar, being the Respondent No.2 in the Writ Petitions. 13. We have heard learned Counsel for the petitioners as well as the respondents. We have also perused papers and proceedings in the matters. 14. In support of the petitioners' case, the learned Counsel Mr Yeramwar has relied upon the decision in the case of Shubham S. Suryawanshi v. State of Maharashtra & ors. in Writ Petition No.3061 of 2020. 15. Learned A.G.P., Shri Yawalkar submits that he is relying upon the order of Caste Scrutiny Committee. He submits that the said order has been passed after granting personal hearing and after considering the claims of the Petitioners in the light of the documentary evidence, Vigilance Cell Report, area restriction and affinity test, and therefore, the same cannot be faulted with. He submits that therefore the order of the Caste Scrutiny Committee, Nandurbar deserves to be upheld and the Petitions be dismissed. 16. He submits that therefore the order of the Caste Scrutiny Committee, Nandurbar deserves to be upheld and the Petitions be dismissed. 16. Before we go on to deal with the case at hand, it would be apposite to advert to the law that has already been settled on the subject. 17. In the case of Apoorva Vinay Nichale vs Divisional Caste Certificate Scrutiny Committee No.1 and others, (2010) 6 MhLJ 401 , this Court, in the decision authored by Hon'ble Justice S.A Bobde (as His Lordship then was) has held that if claim of blood relation like father, son, daughter, brother and sister is accepted as correct, then claims should be allowed without further scrutiny. The relevant paragraphs of the said decision are quoted as under : "3. The petitioner has challenged the order dated 22.1.2010 passed by the Caste Scrutiny Committee invalidating the caste Certificate to the effect that she belongs to Kanjar Bhat- Nomadic Tribe. The main grievance of the petitioner is that the caste Certificate to the effect that she belongs to Kanjar Bhat-Nomadic Tribe ought not to have been invalidated in view of the undisputed fact that the Certificate of petitioner's sister to the same effect has been validated by the Caste Scrutiny committee. According to learned counsel the sister is blood related from the paternal side and there was no reason for invalidating the caste Certificate of the petitioner. The learned counsel relied on the Govt. Resolution dated 22.8.2007 issued by the Principal Secretary, Social Welfare Department, Govt. of Maharashtra, which provides that where during the course of enquiry or scrutiny of a caste claim it is seen that the caste claim of a blood relative, such as father, son, daughter, brother and sister has been scrutinized and accepted, the caste claim of the applicant should be allowed without insisting on any other proof. 4. We have considered the matter and we are of the view that the petitioner's caste claim that she belongs to Kanjar Bhat- Nomadic Tribe ought to have been accepted by the Committee merely on the basis that identical caste claim of her sister that she belongs to Kanjar Bhat has been allowed by the Committee, even apart from the Government Resolution. We are of the opinion that the guidelines provided by the said Govt. Resolution are sound and based on sound principles. It would indeed be chaotic otherwise. We are of the opinion that the guidelines provided by the said Govt. Resolution are sound and based on sound principles. It would indeed be chaotic otherwise. If the relationship by blood is established or not doubted, and one such relative has been confirmed as belonging to a particular caste, there is no reason why public time or money should be spent in the committee testing the same evidence and making the same conclusion unless of course the Committee finds on the evidence that the validity of the Certificate of such relation has been obtained by fraud. 5. The Division Bench of this Court in (Mahesh Pralhadrao Lad v. State of Maharashtra 1, (2009) Supp BCR 898)(A.B.) : 2009(2) Mh.L.J. 90 has observed that in the absence of any power under the Rules conferred on the Government to issue a Govt. Resolution, the Govt. Resolution cannot be said to be binding on the committee nor the committee in exercise of its jurisdiction is bound to follow the same. The Division Bench further observed that the Government Resolution may be considered in the context of Rule 12 of the Rules and if the committee while exercising jurisdiction is satisfied that the caste validity Certificate issued to a blood relative is genuine then instead of calling the Vigilance Cell Report it may proceed to issue the caste validity Certificate. We are in respectful agreement with the view taken by the Division Bench. We would further add that the committee would be entitled to refuse to follow the caste validity Certificate granted to a blood relative if it appears to the committee that the earlier caste Certificate has been scrutinized by a Committee without jurisdiction or the validity order is obtained by committing fraud on the Committee". 18. Further, the caste validity Certificate issued in favour of close/near relative would not be wholly irrelevant unless the same is based on a serious mistake. The decision of the Apex Court in the case of Amruta Viay More Vs State of Maharashtra and others (decided in IA No. 3 of 2011 in Civil Appeal No. 7230 of 2011) as well as in the case of Anita Atmaram Gaikwad vs State of Maharashtra and others in Special Leave to Appeal (Civil) No. 23081 / 2010 (Civil Appeal No. 3881/2013) decided on 16.04.2013 is relevant. 19. 19. Area restriction has been removed pursuant to the Presidential Order of Scheduled Tribes (Amendment) Act, 1976 throughout the State and the community included in scheduled tribe category is entitled. In this regard the decisions in the cases of Palghat Zilla Thandan Samuday Sanrakshan Samiti and another vs State of Kerala, (1994) 1 SCC 359 by the Supreme Court as well as the case of Pandurang Raghunath Chavan vs State of Maharashtra, (1998) 2 MhLJ 806 by this court are relevant. 20. This Court in the case of Pandurang Rangnath Chavan (supra) has made it clear that once a particular caste is included in the Presidential Order, that has to be read as it is. It has following the Apex Court decision held that area restriction stands removed and once the enactment comes into force i.e. Presidential Order of Scheduled Tribes (Amendment) Act, 1976 applies throughout the State, the community mentioned in Scheduled Tribes Reserved Category, is entitled as tribal. 21. The observation of the Hon'ble Apex Court in the case of Jaywant Dilip Pawar vs State of Maharashtra and others in Civil Appeal No. 2336/2011, decided on 08.03.2017 is relevant and quoted as under : 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, 1976 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. 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". 22. Regarding the issue of affinity test, the Supreme Court in the case of Anand Katole vs the Committee for Scrutiny and Verification of tribe claim, (2011) 6 MhLJ 919 (SC) has in paragraph 22 laid down the following guidelines: "22. It is manifest from the afore-extracted paragraph that the genuineness of a caste claim has to be considered not only on a thorough examination of the documents submitted in support of the claim but also on the affinity test, which would include the anthropological and ethnological traits etc., of the applicant. However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim. Nevertheless, we feel that the following broad parameters could be kept in view while dealing with a caste claim: (i) While dealing with documentary evidence, greater reliance may 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 post-Independence documents. In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant; (ii) While applying the affinity test, which focuses on the ethnological connections with the scheduled tribe, 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 migrations, 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 the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a scheduled tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that his present traits do not match his tribes' peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim". 23. Also the recent decision of this Court in the case of Shubham S Suryawanshi (supra) relied upon by the Petitioners, also summarises the law on the point. In that case also, while deciding a similar issue with respect to a petitioner claiming to be belonging to Thakur- Scheduled Tribe, this court has observed as under : "30. Division Bench of this court in case of Motilal N. Pawar (supra) delivered on 22.12.2017 considered a situation where the Petitioner claimed to be of 'Thakur Scheduled Tribe' and was resident of Anturli, Taluka Bhadgaon, District Jalgaon. Since the year 1960, the father of the petitioner had shifted to Nashik for joining a job. Division Bench of this court in case of Motilal N. Pawar (supra) delivered on 22.12.2017 considered a situation where the Petitioner claimed to be of 'Thakur Scheduled Tribe' and was resident of Anturli, Taluka Bhadgaon, District Jalgaon. Since the year 1960, the father of the petitioner had shifted to Nashik for joining a job. The caste claim of the Petitioner therein was invalidated by the Scheduled Tribe Certificate Scrutiny Committee. The Caste Scrutiny Committee in that matter also had held that though in the school records of the Petitioner and his father etc. the caste was recorded as "Hindu Thakur" and /or "Thakur", the Petitioner had failed to prove that his caste fell in the entry appearing at Serial No. 44 i.e. Thakur, Scheduled Tribe. 31. The Scrutiny Committee in that matter also had held that the Petitioner therein had failed to establish his affinity and ethnic linkage towards the "Thakur", Scheduled Tribe community appearing at serial no. 44 and thus the claim of the petitioner that he belonged to Thakur Scheduled Tribe was not sustainable and was accordingly declared as invalid. The Committee also rejected the case of the Petitioner therein on the ground that the Petitioner was not an ordinary resident of the habited area of Thakur community and, therefore, he could not be said to be belonging to "Thakur", scheduled tribe. The Scrutiny Committee had also rejected the case of the Petitioner that he had established affinity test towards "Thakur", scheduled tribe appearing at serial no. 44". 32. This court in the said judgment after referring to entry no. 44 of the Scheduled Tribe Order as it stood in Scheduled Tribe Order of 1950 i.e. "Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar" held that the entry is 'Thakur' which is recognized as the Scheduled Tribe amongst other Scheduled Tribes in the State of Maharashtra. The entry at Serial No.44 is not the "Thakur, the scheduled tribe". The Scrutiny Committee is therefore required to ascertain on the basis of the documentary evidence, whether the person is "Thakur" which is recognized as "Thakur", scheduled tribe. 33. This Court held that it is unfathomable to believe that prior to enactment of the Scheduled Tribe Order of 1950, any entries would have been recorded as "Thakur scheduled tribe". The Scrutiny Committee is therefore required to ascertain on the basis of the documentary evidence, whether the person is "Thakur" which is recognized as "Thakur", scheduled tribe. 33. This Court held that it is unfathomable to believe that prior to enactment of the Scheduled Tribe Order of 1950, any entries would have been recorded as "Thakur scheduled tribe". This expectation of the Committee that the entries ought to have been recorded as "Thakur, scheduled tribe", is too much to expect, since that was never the purport of recognition to be granted to the existing tribes as Scheduled Tribe. The person who claims to be belonging to "Thakur Scheduled Tribe" did not foresee that their caste is going to be recognized as the Scheduled Tribe on the Constitution of India being brought into effect and therefore, they should record their entry as "Thakur, Scheduled Tribe". This court recorded that it had not come across any entry in such pre-constitutional documents also reflecting the caste as "Thakur, Scheduled Tribe", but entry "Thakur", which is a recognized Scheduled Tribe. 34. The Division Bench of this court accordingly held that the reasoning adopted by the Committee was therefore, completely fallacious and such reasoning is put-forth by the committee in cases after cases while rejecting the pre-constitutional documents recording caste as "Thakur", on illusory reason that the entry recorded is not "Thakur, Scheduled Tribe" but is only "Thakur". This court in the said judgment rejected the reasoning of the Scrutiny Committee that the entry of caste in these documents produced by the Petitioner therein as "Thakur" but it was not mentioned as "Thakur Scheduled Tribe". This court failed to understand the said stand of the committee, as the entry in the Scheduled Tribe order is "Thakur" and a person has to establish his claim as belonging to caste "Thakur" as finds place in the scheduled tribe order, for the first time introduced in the year recognized 1950. The "Thakur" came to be recognized as a Scheduled Tribe only for the first time in 1950. 35. This court noticed that even as on today, the caste Certificates are not issued as "Thakur' scheduled tribe" by the competent authority but the caste Certificates mention the caste as "Thakur" which is recognized as Scheduled Tribe since the caste "Thakur" finds place in the Scheduled Tribe order. 35. This court noticed that even as on today, the caste Certificates are not issued as "Thakur' scheduled tribe" by the competent authority but the caste Certificates mention the caste as "Thakur" which is recognized as Scheduled Tribe since the caste "Thakur" finds place in the Scheduled Tribe order. Since the Scheduled Tribe order has come into effect in the year 1950, the documents in existence prior to the inclusion of the caste "Thakur" in the scheduled tribe order, therefore, have attained great significance to establish the genuineness, with a specific object that the claimant has not manipulated the entries intentionally so as to avail benefit of being a "Thakur". It is for this reason that the pre-constitutional documents are given weightage. The rejection of the claim of the claimant like the petitioner on the ground that though the caste is mentioned as "Thakur", it was not mentioned as "Thakur Scheduled Tribe", is nothing but an endeavor to defeat the claim of the persons belonging to said caste. 36. Insofar as rejection of the caste claim by the Scrutiny Committee in that matter on the ground that the Petitioner was not able to establish the affinity test is concerned, this court adverted to the judgment of the Supreme Court in case of Anand (supra) in which it has been 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 migrations, modernization and contact with the 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. 37. The Supreme 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 anthropoligical 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. 38. 38. This court also adverted to the judgment of the Supreme Court in the case of Kumari Madhuri Patil and Anr. Vs. Addl. Commissioner, Tribal Development, Thane & Ors. which laid down great emphasis on the ethnological and anthropological traits which are peculiar to a tribe and while constituting the committee, mandated an inclusion of Research Officer, who had intimate knowledge in identifying the tribal community / group of tribes or tribal communities. This court observed that the Research Officer was not merely expected to match the traits sought by the applicant but is expected to investigate the community's social status claim by finding out as to what is the place of his origin, whether he has migrated from his original place and to collect all other information by throwing light on his social status including peculiar traits/customs etc. 39. This court in the said judgment did not accept the view of the Scrutiny Committee holding that the Petitioner therein was not from the area where the "Thakurs" were found in namely, 25 tahsils and 5 districts. This court adverted to the judgment in case of Yogita Anil Sonawane vs. State of Maharashtra & Ors., (2017) 1 MhLJ 643 in which the judgment of Division Bench of this court relied upon the Full Bench judgment in the matter of Shilpa Vishnu Thakur (supra) in which it was held that upon removal of the area restriction by the amending Act of 1976, the persons belonging to a particular different Scheduled Tribe, though residing in areas than earlier specified or migrated from the said area, can also claim to be belonging to the same Scheduled Tribe. 40. This Court also adverted to the Articles 342 and 340 of the Constitution of India. This court considered the statement of objects and reasons of the Act No.108 of 1976 and held that the tribe identified as Scheduled tribes in the Scheduled Tribes Order of 1950, as amended by the Act of 1956, came to be recognized as "Scheduled Tribe" throughout the said State, in contrast to they being confined to a particular area of the State. As a result of removal of the area restrictions, the tribe or caste, if it is recognized as a scheduled caste or scheduled tribe in the State was entitled to avail the benefits irrespective of the places where they were normally traced to since the tribes normally dwelled in clusters and mostly found in certain hilly areas. However, by the amendment of 1976, the restriction of "Thakurs" being hailing from the districts specified in 1956 Order was completely done away with. 41. This Court after perusal of Article 342 of the Constitution of India held that tribes or tribal communities specified by the President, in consultation with the Governor of a State, are deemed to be scheduled tribes in relation to that State. There is no intention to sub-divide, classify or discriminate these tribes based on their place of residence or place of their origin and it would rather create class of tribes within the same "tribe" in a particular State. It is not the intention flowing from the scheme of the Constitution. This court also considered the fundamental right conferred on every citizen in the form of Article 19 (d) and Article 19 (e) of the Constitution of India, namely to move freely throughout the territory of India and right to reside and settle in any part of the territory of India. This court accordingly quashed and set aside the impugned order passed and directed to forthwith issue the validity Certificate in favour of the petitioner therein, as belonging to "Thakur, Scheduled Tribe, at the earliest and in any case, not beyond the period of four weeks from the date of the receipt of the said order. In our view, the facts before this court in case of Motilal N. Pawar (supra) squarely applies to the facts of this case. We are respectfully bound by the said judgment. 42. This Court in the case of Apoorva Vinay Nichale (supra) held that where the caste claim of the applicant has been scrutinised and accepted and one committee has given a finding about the validity of the caste, another committee ought not to refuse the same status to a blood relative who applies. In this case, Scrutiny Committee ought to have considered the caste validity Certificate issued to other close blood relatives of the petitioner after due enquiry while considering the tribe claim of the petitioner. In this case, Scrutiny Committee ought to have considered the caste validity Certificate issued to other close blood relatives of the petitioner after due enquiry while considering the tribe claim of the petitioner. The impugned order passed by the Scrutiny Committee is in violation of principles of law laid down by this Court in the case of Apoorva Vinay Nichale (supra). 43. The Scrutiny Committee has already issued a caste validity Certificate in favour of relatives of the petitioner whose surnames are Pawar, Bhil, Ahire, Sonwane and Vaishva etc. after following due procedure. The Scrutiny Committee thus ought to have issued the caste validity Certificate in favour of the petitioner. 44. A perusal of the order passed by the Scrutiny Committee indicates that the Scrutiny Committee has invalidated the tribe claim of the petitioner solely on the ground of Affinity Test. The statement of the grandfather of the petitioner was recorded by the Vigilance Officer who had submitted various information regarding primitive, traits, characteristics and rituals, about the wedding, after birth ceremonies, rituals, followed in tribal community as well as information given about the traditions followed in marriage, funeral and special traits and characteristics relating to which questions were asked to the father of the petitioner. 45. The Scrutiny Committee has totally overlooked the said part of evidence. The Scrutiny Committee has also overlooked the documentary evidence produced by the petitioner showing that after due enquiry, various authorities had already issued caste Certificate in favour of the petitioner and the caste validity Certificate in favour of various relatives of the petitioner. 46. In our view once a particular community is declared as Scheduled Tribe, then it is to be treated as Scheduled Tribe throughout the State. The Scrutiny Committee could not have bifurcated the Thakur community which is declared as Scheduled Tribe by inserting in serial No.44 in the list of Scheduled Tribe in the State of Maharashtra in 1950 by holding that "Thakur community" in the State of Maharashtra was in existence other than "Thakur Scheduled Tribe" i.e. "Non Tribal-Thakur". This part of the impugned order is ex facie contrary to the Presidential Orders issued in 1950 amended by the Amendment Act, 1976 by which the "Thakur" community was included in Scheduled Tribes." 24. Having set out with the summary of the law on the subject, we now proceed to deal with the case at hand. 25. This part of the impugned order is ex facie contrary to the Presidential Orders issued in 1950 amended by the Amendment Act, 1976 by which the "Thakur" community was included in Scheduled Tribes." 24. Having set out with the summary of the law on the subject, we now proceed to deal with the case at hand. 25. For the sake of convenience we reproduce the genealogy of the petitioners as contained in the petitions, as under : 26. It is not in dispute that Anil's father and Nikhil's grand-father holds a validity Certificate. This is not only borne out from the Certificate of caste validity dated 15.09.1999 issued in favour of Shri Soma Raoji Thakur, but also from a copy of the Vigilance Enquiry Report dated 25.05.1999 of Shri Soma Ravji Thakur, referred to earlier. He is admittedly the father of Anil and grandfather of Nikhil and holding a Caste Certificate of Thakur Scheduled Tribe bearing no. IAG/SR/106/1997 dated 19.05.1997 issued by Sub Divisional Magistrate, Amalner which appears to have been ignored by the Scrutiny Committee. The said report states that in the school records, the caste of Shri Soma Ravji Thakur is entered as Hindu Thakur. There is no contra evidence that has been shown to us. The validity Certificate in favour of Soma Ravji Thakur in our view has been issued by following due procedure and cannot be discarded by the Scrutiny Committee. Also the Certificate of validity issued in favour of Smt. Ratnaprabha who is the mother of Anil and grandmother of Nikhil, cannot be discarded or overlooked and ought to have been considered by the Scrutiny Committee. 27. Therefore, once the test of valid blood relation of father of has been met and as settled in the case of Apoorva Nichale (supra) and other cases discussed above, in view of the fact that the claim of blood relation with father is accepted as correct, then the claim ought to be allowed without further scrutiny (unless there is fraud) and the other objections of the Scrutiny Committee in such a case need not be gone into in view of the settled law stated above, which is neither alleged nor indicated. Also the caste validity Certificate that has been issued in favour of a close/near relative cannot be discarded. 28. Also the caste validity Certificate that has been issued in favour of a close/near relative cannot be discarded. 28. Therefore, if the caste validity Certificates of Anil's father and Nikhil's grandfather and of Smt. Ratnaprabha Shravan Thakur, grandmother of Nikhil are valid, then the Committee is not justifed in rejecting the Petitioners' claim. 29. The attempt to distinguish Thakur scheduled tribe with Thakur from upper caste in Khandesh and Maharashtra or to raise objection that Thakur community in Khandesh region are not from scheduled tribe category, is also misplaced. The Scrutiny Committee could not have bifurcated or sub-divided or discriminated the Thakur community which is declared as Scheduled Tribe in the State of Maharashtra in 1950 by suggesting that "Thakur community" in the State of Maharashtra was in existence other than "Thakur Scheduled Tribe" i.e. "Non Tribal-Thakur. This, in our view would be ex-facie contrary to the Presidential Orders issued in 1950 as amended in 1976 by which the Thakur Community was included in the Scheduled Tribes. This is the law laid down by the Supreme Court in the case of Palaghat Zilla Thandan Samuday Sanrakshan Samiti and another vs State of Kerala (supra) as discussed and followed by the Bombay High Court in the case of Shubham Suryavanshi (supra). 30. Once the Thakur tribe is entered at Entry 44 in the Scheduled Tribes Order which is a Presidential Order, it has to be read as it is. In view of the law discussed above, we do not think that the observations of the Scrutiny Committee to say that since the original tribals do not have the name Thakur, claim of the petitioners can be rejected. The expectation that entries ought to have been recorded as Thakur Scheduled Tribe is too much to expect as the person who claims to be belonging to "Thakur Scheduled Tribe" did not foresee that his caste is going to be recognized as Scheduled Tribe upon the Constitution of India being brought into effect. Therefore, also the reliance on the preconstitutional document becomes relevant. The rejection on the ground that though the caste is mentioned as "Thakur", it was not mentioned as "Thakur-Scheduled Tribe" or rejection of pre-constitutional document is nothing but an endeavour to defeat the claims. 31. Therefore, also the reliance on the preconstitutional document becomes relevant. The rejection on the ground that though the caste is mentioned as "Thakur", it was not mentioned as "Thakur-Scheduled Tribe" or rejection of pre-constitutional document is nothing but an endeavour to defeat the claims. 31. It appears that the Committee has also ignored the decision of this Court in the case of Ravindra Khare Vs State of Maharashtra and others, (2013) 3 AllMR 644 when it has rejected the pre-independence documents which refer only to Thakur without the mention of the word "Scheduled Tribe". 32. The objection of area restriction as discussed above, can easily be met by the decision in the case of Jaywant Dilip Pawar vs State of Maharashtra (supra), which restriction has been removed pursuant to the enforcement of (Amendment) Act, 1976, when the Supreme Court says that 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. 33. With respect to the objection pertaining to the affinity test, the decision of the Supreme Court in the case of Anand Katole (supra), as discussed above, clearly meets the point, when the Supreme Court states 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 migrations, modernization and contact with the 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, affinity test may not be regarded as a litmus test for establishing the link of the applicant with Scheduled Tribe. 34. Also the attempt by the Respondent No.2- Committee in the facts of this case to link the marital relations with Bhat Thakur and Brahmbhatt Thakur would clearly be beyond the scope of the inquiry that the Caste Scrutiny Committee is expected to conduct. 35. Considering the above discussion, the law settled by the various Supreme Court decisions referred to above and respectfully following this Court decision in the case of Shubham Suryawanshi (supra) we are of the view that the impugned order dated 04.09.2019 cannot be sustained. We deem it ft to exercise our writ jurisdiction in this matter. 36. 35. Considering the above discussion, the law settled by the various Supreme Court decisions referred to above and respectfully following this Court decision in the case of Shubham Suryawanshi (supra) we are of the view that the impugned order dated 04.09.2019 cannot be sustained. We deem it ft to exercise our writ jurisdiction in this matter. 36. Impugned order dated 4th September, 2019 passed by Respondent No.2 the Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, is set aside. Respondent No.2 Committee to issue requisite validity Certificates to petitioners of being "Thakur Scheduled Tribe" forthwith. This order be communicated by the learned A.G.P. to concerned authority immediately. 37. Writ petitions are disposed of in the above terms. Rule is made absolute accordingly. No order as to costs.