Allowed

Vaibhav Dharma Pawar and Anr. v. State of Maharashtra through Secetary, Tribal Development Dept. and Ors.

Bombay HC9 Aug 2019WP/8618/2019

Case brief

AI extract

What is this about?

High Court bench held that the affinity test is not a litmus test for SC/ST status. It quashed the Scrutiny Committee's order invalidating Thakur caste certificates, directed issuance of new certificates, and warned against the committee's disregard of binding precedents.

What did the court decide?

Impugned order quashed; new caste certificate directed to be issued within 9th August 2019; admission on strength of court order regularized.

Vaibhav Dharma Pawar and Anr. Vs State of… — Pension and Retirement Benefits | Bombay HC (2019)

¶1

914-WP8618-19.DOC

¶2

Shephali

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8618 OF 2019

¶4

Vaibhav Dharma Pawar & Ors
Versus

¶5

…Petitioners

¶6

State of Maharashtra through its Secretary, Tribal…Respondents
Development Department, Mantralaya, Mumbai
& Ors

¶7

Mr RK Mendadkar , with CK Bhangoji, for the Petitioners. Ms Reena Salunkhe , AGP, for State .

¶8

CORAM:S.C. DHARMADHIKARI &
G.S. PATEL, JJ
DATED:9th August 2019

¶9

PC:-(Per G.S. Patel, J.)

¶10

1.Rule. Respondents waive service. By consent Rule is made
returnable forthwith and taken up for hearing and fnal disposal.
Heard Mr Mendadkar for the Petitioner and Ms Salunkhe, learned
AGP for Respondents Nos. 1 and 2.

¶11

2.By this Writ Petition under Article 226 of the Constitution of
India the two Petitioners, who are siblings, assail the Judgment and
Order dated 26th April 2019 of the 2nd Respondent, the Scheduled
Tribe Certifcate Scrutiny Committee, Nashik. This was

¶12

Page 1 of 9 9th August 2019

¶13

914-WP8618-19.DOC

¶14

communicated to the Petitioners by an endorsement dated only as
late as 16th July 2019. By the impugned order, the 2nd Respondent
Committee invalidated the caste certifcates of both Petitioners. The
Petitioners claimed to belong to the Thakur Scheduled Tribe. This
is a notifed Scheduled Tribe under Entry No. 44 of the
Constitution (Scheduled Tribe) Order, 1950 as periodically
amended.

¶15

3.The Petition sets out that the Petitioners were granted caste
certifcates by the Competent Authority certifying that they belong
to the Thakur Scheduled Tribe in the State of Maharashtra. The 1st
Petitioner was issued a caste certifcate on 25th August 2011. His
sister, the 2nd Petitioner, was issued a certifcate on 7th July 2011.
Copies of these certifcates are annexed as Exhibit “B” to the
Petition.

¶16

4.As the Petitioners desired to enroll or take admission in
institutes for higher studies, they moved the 2nd Respondent
Committee at Nashik for a verifcation of their caste certifcates.
Their application was supported by necessary documents. These
included, inter alia, a school leaving certifcate of the Petitioners’
grandfather one Dhondu Raising Thakur. This showed his tribe as
Thakur as on 20th May 1902 i.e. well before Independence.
Similarly, they also produced a school leaving certifcate of one
Kashiram Dhondu Thakur, a paternal cousin grandfather, dated 17th
August 1933, and therefore also pre-Independent, also showing his
tribe as Thakur. The post-Independence documents included one of
the Petitioners’ father Dharma which showed his certifcate as
Thakur, a caste validity certifcate for Dharma of 13th October

¶17

Page 2 of 9 9th August 2019

¶18

914-WP8618-19.DOC

¶19

2000; a school leaving certifcate of the Petitioners’ paternal uncle Keda Tulshiram Pawar showing his tribe as Thakur as on 15th Jul y 1968 ; the school leaving certifcate of another paternal uncle Suresh Kashiram Pawar showing his tribe as Thakur on 29th June 1971 and the school leaving certifcate of the 2nd Petitioner issued on 4th June 1999 showing her tribe as Thakur.

¶20

5.The application was followed by the usual Vigilance Cell
Report into the caste claim. The police authorities of the Vigilance
Cell examined the documents and confrmed their genuineness. The
cell also recorded the statements of the Petitioners father in relation
to the Thakur tribe’s traits, characteristics, traditions, customs and
so on. The Vigilance Cell confrmed that the Petitioners’ father had
been granted a caste validity certifcate and noted the genealogy of
family tree. The Vigilance Cell submitted a report to the 2nd
Respondent Committee on 4th August 2014. There was a remark on
this that the original place of residence of the Petitioners i.e.
Khamkheda, Taluka Devla, District Nashik does not fall within a
tribal area and also commented that the information said to have
been supplied by the Petitioners’ father did not accord with the
noted or documented traditions of the Thakur tribe. The Petitioners
were asked for their explanation.

¶21

6.The Petitioners were called for hearing on 4th July 2019 when
they, their father and their grandfathers appeared. During the course
of hearing, the Petitioners pointed out that there were at least two
pre-Independence entries in their immediate paternal family
recording the tribe as Thakur in respect of their great grandfather,
Dhondu Raising Thakur on 20th May 1902 and that of their cousin

¶22

Page 3 of 9 9th August 2019

¶23

914-WP8618-19.DOC

¶24

grandfather Kashiram Dhondu Thakur on 17th August 1933. It was
also pointed out that the Petitioners’ father himself had a caste
certifcate following the due procedure. They claimed to have been
covered by the decision of the Supreme Court in Anand v Committee
for Scrutiny and Verification of Tribe Claims & Anr.1

¶25

7.Despite all this material the 2nd Respondent Committee
passed the impugned order invalidating and cancelling the caste
certifcate of both Petitioners.

¶26

8.We have heard Mr Mendadkar and carefully considered the
material on record and examined the impugned order. We fnd it
impossible to sustain this order. The 2nd Respondent Committee
seems to have proceed almost entirely on the basis that the
Petitioners did not fulfl the so-called ‘afnity 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 fnding completely overlooks the
decision of the Supreme Court in Anand. The afnity test is not a
litmus test. That is now settled law.

¶27

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

¶28

1 (2012) 1 SCC 113.

¶29

Page 4 of 9 9th August 2019

¶30

914-WP8618-19.DOC

¶31

that reason alone they are not members of that caste, tribe or
community.

¶32

10.We fnd that the scrutiny committee materially misdirected
itself on law. It make extensive reference to the decision of this
Court in Chhaya Jaswantsingh Hajari v State of Maharashtra,2 which
said that if a candidate could not pass the afnity test, then the
certifcate had to be invalidated. This was followed most notably in
Monika Satish Thakur v State of Maharashtra and Ors.3 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.4

¶33

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

¶34

2 Writ Petition No. 4198 of 2005 decided on 1st August 2008.

¶35

3 Writ Petition No. 10123 of 2010.

¶36

4 2010 (6) MLJ 401.

¶37

Page 5 of 9 9th August 2019

¶38

914-WP8618-19.DOC

¶39

this very committee to the Division Bench in view of his
demonstrated and obdurate refusal to follow decisions of this Court.

¶40

12.The impugned order is also inconsistent and self-
contradictory. 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 fnding that the pre-Independence 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 fnding. It cannot. It simply ignores
them from any meaningful consideration

¶41

13.There is yet another logical faw in the 2nd Respondent’s
approach. If the certifcates issued to the Petitioners are to be
invalidated then the 2nd Respondent Committee ought necessarily
to have called into question the caste validity certifcate of the
Petitioners’ father, Dharma Tulshiram Pawar, although that is now
nearly 20 years old and has never been disturbed since. The 2nd
Respondent Committee has not done so. There is such a thing after
all as a fnality to these matters.

¶42

14.This committee seems not to have learnt its lesson. Despite
that imposition of costs it passes almost stereotyped standardised
template orders again and again, constantly chanting the refrain that
the afnity test is the beginning and the end of everything and that
nothing else matters. It entirely overlooks the settled law on the

¶43

Page 6 of 9 9th August 2019

¶44

914-WP8618-19.DOC

¶45

subject regarding pre-Independence documents, and the weight to
be attached to these. We are constrained now to note that if we fnd
any further instances of this kind of thoughtless, casual and cavalier
approach we will have no option but to take even more stringent
action against this committee.

¶46

15.In fact paragraph 9 of the impugned order at pages 29 to 31
would indicate prima facie that the sole basis and foundation of the
impugned order was the afnity test and nothing else.

¶47

16.As to the question of territoriality, i.e. that the Petitioners
claim to be from Khamkheda, Tal. Devla, Dist. Nashik, and that this
is not known in Scheduled Tribes and Scheduled Castes Order
(Amendment) Act, 1956, again the 2nd Respondent Committee fell
into manifest error. It wholly ignored the efacement of the area
restrictions by the Scheduled Castes and Scheduled Tribes Ordes
(Amendment) Act, 1976, which specifcally deleted the area
restriction of Scheduled Tribes in Maharashtra for the Thakur
community. The Supreme Court has noted this in its 8th March
2017 order in Jayant Dilip Pawar v State of Maharashtra & Ors.5 This
order was placed before the 2nd Respondent Committee by the
Petitioners (page 28). There is simply no discussion on it.

¶48

17.Having regard to the exigencies of the situation and since the
Petitioners are seeking further educational admission, we will allow
the Writ Petition and make absolute.

¶49

5 Special Leave Petition No. 2336 of 2011.

¶50

Page 7 of 9 9th August 2019

¶51

914-WP8618-19.DOC

¶52

18.On 8th August 2019 we pass the following order which is
reproduced below:

¶53

For the reasons separately recorded, the following order is
passed:-

¶54

1.The writ petition succeeds. The impugned order
passed by the Scheduled Tribe Certifcate Scrutiny
Committee, Nashik dated 26th April, 2019 is quashed and
set aside.

¶55

2.Now, in tune with the caste validity certifcate issued
to the father-Dharma Pawar, the petitioner shall be issued
the certifcate validating his claim towards “Thakur
Scheduled Tribe”, Entry No. 44 of the Scheduled Tribe
Control Order, 1950. the certifcate of validity shall be
issued latest by 9th August, 2019 by 3.00 p.m.

¶56

3.The certifcate of validity is being insisted for
admission to the MBA course by the Commissioner of
Common Entrance Test Cell and other authorities. Since
we have set aside the order of the Committee, upheld the
claim of the petitioner and directed that the formal
certifcate be drawn up and issued to the petitioner, latest by
tomorrow, if the petitioner remains present before the
Commissioner, today or tomorrow, he shall not insist on
production of certifcate of validity, but must proceed on
the footing that our order and directions have validated and
accepted the claim. On the strength of our order, the
admission provisionally granted can be regularised.

¶57

4.In the light of the fact that our reasoned order may
not be ready before 16th August, 2019 because of the
intervening holidays, we have issued this direction and the
reasoned order shall be made available on 16th August,
2019.

¶58

Page 8 of 9 9th August 2019

¶59

914-WP8618-19.DOC

¶60

5. All concerned to act upon the authenticated copy of this order.

¶61

19.The Petition is disposed of in these terms. For the present
there will be no order as to costs. We do, however, make it clear that
if we see further instances of the 2nd Respondent Committee
continuing to conduct itself in this fashion, we may be prompted to
initiate far more drastic action than has been taken so far.

¶62

 (S. C. DHARMADHIKARI, J)

¶63

(G. S. PATEL, J)

¶64

Page 9 of 9 9th August 2019

Vaibhav Dharma Pawar and Anr. v. State of Maharashtra through Secetary, Tribal Development Dept. and Ors.

Case brief

What is this about?

What did the court decide?

Vaibhav Dharma Pawar and Anr. v. State of Maharashtra through Secetary, Tribal Development Dept. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

N C Rathod Vs Air India Engineering Services Ltd. and 2 Ors.

Prabhudas Nanalal Parekh and 37 Ors. Vs State of Maharashtra through the Government Pleader and 6 Ors.

Nair Coal Services Pvt. Ltd. through Authorised Signatory Vs Mah. State Power Gen. Co. Ltd. through Chief Engineer

Gracy Abraham and 4 Ors. Vs Municipal Corporation of Gr.Mumbai and 2 Ors.

Pillai Maridas Velswamy Vs Skill Development and Entrepreneurship Dept. through Its Principal Secretary and Ors.

Air India Ltd. Kamgar Sangh (Mumbai) Vs Air India Limited Thr Its Managing Director and 6 Ors.