Research › Search › Judgment

Bombay High Court · body

2023 DIGILAW 942 (BOM)

Priyanka Rajendra Pawar v. State of Maharashtra

2023-04-11

G.S.PATEL, NEELA GOKHALE

body2023
JUDGMENT/ORDER 1. Mentioned. Not on board. Taken on board. 2. Rule. Rule returnable forthwith. We have taken up the Petition out of turn because Mr Mendakar says that while on the one hand by an order of 27/1/2019 the Petitioner's Caste Validity Certificate has been invalidated by the 2nd Respondent, the Scheduled Tribe Certificate Scrutiny Committee, Nasik, on the other hand, the Petitioner has been selected for an interview by the Water Resources Department of the Government of Maharashtra. That interview is to be held tomorrow and the Petitioner must submit documents including a Caste Validity Certificate and her original Caste Certificate. 3. We propose to make Rule absolute because we find that the impugned order in question is contrary to settled law and cannot be sustained. There is going to present an operational difficulty so far as the Petitioner is concerned for the documents tomorrow, but we will take care of that with additional directions at the end of the order. 4. The Petitioner's claim is that she belongs to the Thakur tribe notified as a Scheduled Tribe in Maharashtra as on 14/8/2008. Before the Caste Scrutiny Committee, she submitted documents of her father and her grandfather apart from her own documents. The documents all show her father and grandfather as being either Hindu Thakur or Hindu Thakur with some variations such as Backward Class etc. The 2nd Respondent Committee arrived at a conclusion that is exceedingly peculiar. It began by first saying (page 22 of the paper book) that these Certificates were obtained "conveniently" or at the convenience of the persons in question. For example, some of the entries were as Hindu Thakur, some were as Hindu Thakur-ekxkly sy s and some as Hindu Thakurvuqlwfpr tkrh tekrh. As Mr Mendadkar points out, this is a distinction without a difference because throughout, the consistent noting is of Hindu Thakur. Others may be descriptors added here or there but that does not mean that the description of the Tribe or the Caste is incorrect. Then, even more strangely, the 2nd Respondent Committee proceeded to consider the so-called Cultural Affinity Test and negatived the claim on that basis. 5. This is so utterly contrary to settled law that it is remarkable that the 2nd Respondent should even have considered it in this fashion. Then, even more strangely, the 2nd Respondent Committee proceeded to consider the so-called Cultural Affinity Test and negatived the claim on that basis. 5. This is so utterly contrary to settled law that it is remarkable that the 2nd Respondent should even have considered it in this fashion. In Vaibhav Dharma Pawar & Ors v State of Maharashtra & Ors, Writ Petition No. 8618 of 2019 decided on 9/8/2019 the Division Bench (of which one of us, GS Patel, J was a member) held inter alia as follows: "8. We have heard Mr Mendadkar and carefully considered the material on record and examined the impugned order. We find it impossible to sustain this order. The 2nd Respondent Committee seems to have proceed almost entirely on the basis that the Petitioners did not fulfil the so-called 'affinity test', meaning that they could not clearly and unequivocally attest to the various established customs, traits and traditions said to be common to the Thakur Scheduled Tribe. This finding completely overlooks the decision of the Supreme Court in Anand. The affinity test is not a litmus test. That is now settled law. 9. Apart from the decision itself there is a historical reason with the development of society why this cannot be a determinative test. As people have progressed in life, they may not necessarily adhere to or even be fully aware of the oldest historic traditions of their tribe, caste or even community. This does not necessarily mean that for that reason alone they are not members of that caste, tribe or community. 10. We find that the scrutiny committee materially misdirected itself on law. It makes extensive reference to the decision of this Court in Chhaya Jaswantsingh Hajari v State of Maharashtra in Writ Petition No.4198 of 2005 decided on 1/8/2008, which said that if a candidate could not pass the affinity test, then the certificate had to be invalidated. This was followed most notably in Monika Satish Thakur v State of Maharashtra and Ors in Writ Petition No.10123 of 2010. What the 2nd Respondent Committee completely overlooked, although we are unable to see how it could have so done, was the much more recent decision of a Division Bench of this Court (BR Gavai J as he then was, and NJ Jamadar J) in Writ Petition No. 2363 of 2013, Prakash Shrawan Deore v Schedule Tribe Certificate Scrutiny Committee, Nashik. What the 2nd Respondent Committee completely overlooked, although we are unable to see how it could have so done, was the much more recent decision of a Division Bench of this Court (BR Gavai J as he then was, and NJ Jamadar J) in Writ Petition No. 2363 of 2013, Prakash Shrawan Deore v Schedule Tribe Certificate Scrutiny Committee, Nashik. That was a decision against this very committee. The Division Bench held that the decision in Monika Satish Thakur was per incuriam (paragraphs 13 and 14) because it ran completely contrary not only to the Supreme Court decision in Anand but also to the decision of this Court in Apoorva Vinay Nichale v Divisional Caste Certificate Scrutiny Committee and Ors (2010 (6) MLJ 401). 11. In Prakash Shravan Deore, the Division Bench of this Court went so far as to impose costs of one month's salary for each of the three members of the committee, noting that this conduct in ignoring binding decisions of this Court was deliberate and could not be accidental. This gives us a measure of the distress caused by this very committee to the Division Bench in view of his demonstrated and obdurate refusal to follow decisions of this Court. 12. The impugned order is also inconsistent and selfcontradictory. The lineage of the Petitioners is not in doubt. Their genealogy is not questioned. It follows therefore that if the Petitioners' claim to being of the Thakur Scheduled Tribe is to be invalidated, then the 2nd Respondent Committee was bound to return a finding that the preIndependence documents of the Petitioners' paternal ancestors, all showing the Thakur entry, were incorrect, fake, or could not be believed. The 2nd Respondent Committee returns no such finding. It cannot. It simply ignores them from any meaningful consideration." (Emphasis added) 6. The impugned order is also contrary to the recent three Judge decision of the Supreme Court in Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti v State of Maharashtra & Ors., 2023 SCC OnLine SC 326 AS Oka, J writing for the Bench arrived at the following conclusions at para 38: "(a) Only when the Scrutiny Committee after holding an enquiry is not satisfied with the material produced by the applicant, the case can be referred to Vigilance Cell. While referring the case to Vigilance Cell, the Scrutiny Committee must record brief reasons for coming to the conclusion that it is not satisfied with the material produced by the applicant. Only after a case is referred to the Vigilance Cell for making enquiry, an occasion for the conduct of affinity test will arise. (b) For the reasons which we have recorded, affinity test cannot be conclusive either way. When an affinity test is conducted by the Vigilance Cell, the result of the test along with all other material on record having probative value will have to be taken into consideration by the Scrutiny Committee for deciding the caste validity claim; and (c) In short, affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case." 7. For these reasons, the impugned order cannot be sustained. Rule is accordingly made absolute in terms of prayer clauses (a) and (b). 8. The 2nd Respondent is directed to issue the Validity Certificate to the Petitioner within one week from today. 9. However, for the purposes of the interview tomorrow, the authorities in question at the Water Resources Department will, acting on production of an authenticated copy of this order, accept an undertaking from the Petitioner to produce the Caste Validity Certificate within two weeks from today. Until then, a copy of this order is to be retained by that authority on file. For all purposes of the interview, the Water Resources Department will proceed on the basis that the Petitioner has a Caste Validity Certificate. 10. The learned AGP to communicate this order to concerned Officer from Water Resources Department. 11. The Petition is disposed of in these terms. There will be no order as to costs.