Allowed

Vijay Narhari Shinde v. Scheduled Tribe Certificate Scrutiny Committee Aurangabad Thorugh Its Member Secretary and Another

Bombay HC12 Feb 2021WP/646/2020

Case brief

AI extract

What is this about?

The High Court quashed the Scrutiny Committee's order invalidating the petitioner's claim of membership in the Thakur Scheduled Tribe. The court held that pre-independence documentary evidence was valid, area restrictions are inapplicable post-1976 Amendment, and the petitioner is entitled to a validity certificate.

What did the court decide?

The impugned order by the Scrutiny Committee was quashed, and the Committee was directed to issue a validity certificate to the petitioner as a member of the Thakur Scheduled Tribe forthwith.

Vijay Narhari Shinde Vs Scheduled Tribe… — Pension and Retirement Benefits | Bombay HC (2021)

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988-wp-145-20 (Jt.)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 145 OF 2020

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Yash S/o Sanjay Thakur Age – 23 years, Occu.: Education, R/o. Aurangabad Tq. & Dist. Auranagabad. ... Petitioner. Versus 1. The Scheduled Tribe Certificate Scrutiny Committee, Aurangabad Division, Aurangabad, Through its Member Secretary. 2. Savitribai Phule University, Vidyapeeth Road, Pune through its Registrar 3. The Principal D.Y. Patil College of Engineering Sector 29, Nigdi Pradhikaran Akurdi, Pune – 411 044. ... Respondents.

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Mr. Mahesh S. Deshmukh, Advocate for the Petitioner. Mr. P.S. Patil, Addl. Government Pleader for Respondent No.1. Mr. A.R. Joshi, Advocate for Respondent No.2.

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CORAM : S.V. GANGAPURWALA AND SHRIKANT D. KULKARNI, JJ.

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Date : 11.02.2021

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FINAL ORDER:

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Feeling aggrieved by the impugned order passed by respondent No.1 / Scheduled Tribe Certificate Scrutiny Committee, Aurangabad Division, Aurangabad (hereinafter referred to as "the Committee”)

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thereby invalidating caste claim of the petitioner and his uncle Vijay Narhari Shinde as belonging to “Thakur Scheduled Tribe”, by common judgment the petitioner has approached this Court by invoking writ jurisdiction under Article 226 of the Constitution of India.

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The factual matrix of the case is as under:

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2(i) The petitioner was admitted in B.E. (Civil) professional course in the college of respondent No.3 from S.T. category. His college has referred the tribe claim for validation to the committee. The petitioner has submitted sufficient evidence in the nature of school record of pre-independence era pertaining to his greatgrandfather and other blood relatives. He has also relied upon the validity certificates issued in favour of his real brother and real cousin and third degree cousin from the paternal side. The Committee has referred the case to the vigilance officer for enquiry. The vigilance officer has submitted his report to the committee. The committee has issued show cause notice to the petitioner, and in response to the show cause notice, the petitioner has filed his say. The committee has invalidated his tribe claim as belonging to “Thakur” Scheduled Tribe without considering the old documentary evidence as well as the

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validity certificates issued in his family. In that background, the petitioner is before us.

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We have heard Mr. M.S. Deshmukh, Advocate for the petitioner, Mr. P.S. Patil, Addl. G.P. for the respondent No.1 and Mr. A.R. Joshi, learned counsel for respondent No.2. None present for respondent No.3.

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Mr. Deshmukh, the learned counsel for the petitioner vehemently submitted that the petitioner has produced old documentary evidence in the nature of school record pertaining to his great-grandfather namely Trimbak Mahadu dated 11.04.1924, wherein the caste “Thakur” is recorded. The school record of the petitioner’s grandfather namely Narhari Trimbak dated 04.07.1956 also records the caste “Thakur”. There are no contra entries. The genealogy is not disputed by the Committee. The committee has discarded the old record and that too of the pre-independence era without assigning cogent reason. The Committee has also not considered the validity certificates of close blood relatives of the petitioner viz. real brother, real cousin and third degree cousin from paternal side.

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Mr. Deshmukh, submitted that the area restrictions is

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removed even then the committee has considered that aspect and turned down the tribe claim of the petitioner. He submitted that when there are validity certificates in the family of the petitioner from paternal side viz. real brother and real cousin, the committee ought to have issued validity certificate in view of ratio laid down in case of Apporva D/o. Vinay Nichale Vs. Divisional Caste Certificate Scrutiny Committee No.1 and others, reported in 2010 (6) Mh.L.J. 401 . He submitted that the affinity test is not a litmus test by placing reliance in case of Anand Vs. Committee for Scrutiny and Verification of Tribe claim and ors. reported in (2012)1 SCC 113. Mr. Deshmukh submitted that the impugned order passed by the committee is bad in law and liable to be quashed and set aside.

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Mr. P. S. Patil, learned Addl. G.P. for respondent No. 1 / committee, per contra, submitted that the committee has considered the old documents produced by the petitioner. The committee after examining all the documentary evidence, vigilance report and report of the Research officer, arrived at the conclusion that the petitioner has failed to prove his tribe claim as “Thakur” Scheduled Tribe. Mr. Patil submitted that the validity holders Deep Sanjay Thakur and Vyom Vijay Thaku had not disclosed the real genealogy and there by

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obtained validity certificates. The validity certificates have been issued to Deep Thakur and Vyom Thakur by placing reliance on the validity of Shri Ananda Vitthal Shinde, therefore, the committee has not extended the benefit of caste claim to the petitioner on the basis of validity certificate relied by the petitioner. Mr. Patil submitted that the findings recorded by the committee are well reasoned. The decision rendered by the committee is not defective in the eye of law. It is not a fit case to interfere with the decision of the committee.

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Mr. A.R. Joshi, learned counsel for respondent No.2 supported the stand taken by the learned Addl. G.P.

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We have considered the arguments advanced by the learned counsel for the petitioner, learned Addl. G.P. and the learned counsel appearing for the respondent No2.

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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 :

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(i) The petitioner has failed to prove his tribe claim on the basis of documentary evidence.

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(ii) The petitioner is not entitled to get benefit of the tribe validity certificates issued in his family.

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(iii) The petitioner has failed to prove the affinity test.

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On making scrutiny of the impugned order, vigilance report and other papers, it is noticed by us that the petitioner has placed on record the documentary evidence in the form of school record of the year 1924 pertaining to his great-grandfather, wherein the caste “Thakur” has been recorded.

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The following documentary evidence was produced by the petitioner before the committee.

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v- Ø-	nLr,sotkpk izdkj	nLr,sot/kkjdkps uko	vtZnkj dz-1 ;kaP;k’kh ukrs	Tkkrhph ukasn	Ukkasn.kh fnukad
1-	tUe izek.ki=	;’k lat; Bkdwj	vtZnkj dz-1	Bkdwj	28-06-1996
2-	‘kiFki= ¼uequk Q½	;’k lat; Bkdwj	vtZnkj dz-1	& &	20-08-2014
3-	fo	kFkhZ izos’k o fuxZe mrkjk	;’k lat; Bkdwj	vtZnkj dz-1	Bkdwj
4-	fo	kFkhZ izos’k o fuxZe mrkjk	;’k lat; Bkdwj	vtZnkj dz-1	Bkdwj
5-	‘kkGk lksMY;kpk nk[kyk	;’k lat; Bkdwj	vtZnkj dz-1	Bkdwj	24-09-2007
6-	CksukQkbZM izek.ki=	;’k lat; Bkdwj	vtZnkj dz-1	Bkdwj	10-09-2013
7-	tUe izek.ki=	;’k lat; Bkdwj	vtZnkj dz-1	& &	16-07-2006
8-	fo	kFkhZ izos’k o fuxZe mrkjk	lat; ujgjh Bkdwj	ofMy	Bkdwj
9-	‘kkGk lksMY;kpk nk[kyk	lat; ujgjh Bkdwj	ofMy	Bkdwj	31-12-1980
10-	‘kkGk lksMY;kpk nk[kyk	lat; ujgjh Bkdwj	ofMy	Bkdwj	02-07-1982
11	tUe izek.ki=	lat; ujgjh Bkdwj	ofMy	Bkdwj	20-12-1988
12	lsokiVkP;k izFke i`”Bkph izr	lat; ujgjh Bkdwj	ofMy	Bkdwj	& &
13	fo	kFkhZ izos’k o fuxZe mrkjk	ujgjh «khacd Bkdwj	vktksck	Bkdwj
14	fo	kFkhZ izos’k o fuxZe mrkjk	«kacd egknq	iatksck	Bkdwj
15	QsjQkj i«kd	1½ lat; ujgjh Bkdwj 2½ fot; ujgjh Bkdwj	1½ ofMy 2½ vtZnkj dz-2	& &	06-04-2004
16	gDd ukasn.kh jftLVj	«khacdk ek/ko Bkdwj	iatksck	& &	1956
17	fo	kFkhZ izos’k o fuxZe	fot; ujgjh Bkdwj	vtZnkj dz-2	Bkdwj

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18	mrkjk Ukko cnykps izek.ki«k	fot; ujgjh f’kans @ fot; ujgjh Bkdwj	vtZnkj dz-2	& &	17-05-2012
19	Tkkr oS/krk izek.ki«k	vkuank foðy f’kans	pqyr dkdk	Bkdwj	26-08-2011
20	‘kiFki«k ¼oS/krk½	oS’kkyh flrkjke Bkdwj	omhykaPkh ekescgh.k	& &	28-07-2014
21	Tkkr izek.ki«k	oS’kkyh flrkjke Bkdwj	omhykaPkh ekescgh.k	Bkdwj	26-09-2005
22	Tkkr oS/krk izek.ki«k	oS’kkyh flrkjke Bkdwj	omhykaP;k ekescgh.k	Bkdwj	08-07-2010
23	‘kiFki«k ¼oS/krk½	vpZuk lat; Bkdwj	vkbZ	& &	20-08-2014
24	Tkkr izek.ki«k	vpZuk tuk/kZu culksMs	vkbZ	Bkdwj	10-08-2005
25	Tkkr oS/krk izek.ki«k	vpZuk tuk/kZu culksMs	vkbZ	Bkdwj	31-03-2010
26	Tkkr izek.ki«k	vk’kk tuk/kZu culksMs	dkdw	Bkdwj	07-08-1991
27	Tkkr oS/krk izek.ki«k	vk’kk tuk/kZu culksMs	dkdw	Bkdwj	28-11-2005
28	Ukko cnykps izek.ki«k	vk’kk tuk/kZu culksMs @ izsj.kk fot; Bkdwj	dkdw	& &	17-05-2012
29	Tkkr oS/krk izek.ki«k	vferdqekj tuk/kZu culksMs	ekek	Bkdwj	01-04-2010
30	Tkkr oS/krk izek.ki«k	eatq”kk tuk/kZu culksMs	eko’kh	Bkdwj	27-01-2004
31	‘kiFki«k ¼oS/krk½	lat; ujgjh Bkdwj	oMhy	& &	13-09-2019
32	Tkkr izek.ki«k	fni lat; Bkdwj	HkkÅ	Bkdwj	16-12-2015
33	Tkkr oS/krk izek.ki«k	fni lat; Bkdwj	HkkÅ	Bkdwj	15-07-2019
34	Tkkr oS/krk izek.ki«k	O;kse fot; Bkdwj	pqyr HkkÅ	Bkdwj	15-07-2019
35	tkr izek.ki«k	O;kse fot; Bkdwj	pqyr HkkÅ	Bkdwj	28-01-2016
36	tekr nkok voS/k BjfoY;kpk vkns’	lat; ujgjh Bkdwj	oMhy	& &	29-12-1997
37	Ek-mPp U;k;ky;] eqacbZ ;kaps fu.kZ;vkns’l ¼fjV ;kfpdk dz-6224@ 2015½	jfoanz izYgknjko [kjs	& &	& &	& &
38	tkr izek.ki«k	fot; ujgjh f’kans	vtZnkj dz-2	Bkdwj	18-03-2010
39	‘kiFki«k ¼Ukko cnykckcr½	fot; ujgjh f’kans @ fot; ujgjh Bkdwj	vtZnkj dz-2	& &	24-12-2010
40	‘kiFki«k ¼oa’kkoG½	fot; ujgjh f’kans	vtZnkj dz-2	& &	23-02-2011
41	fo	kFkhZ izos’k o fuxZe mrkjk	Ukjgjh «;acd	vktksck	Bkdwj
42	‘kkGk lksMY;kpk nk[kyk	Ukjgjh «;acd f’kans	vktksck	Bkdwj	17-06-1952
43	‘kkGk lksMY;kpk nk[kyk	ujgjh f«kacd f’kans	vktksck	Bkdwj	04-07-1956
44	tkrhps izek.ki«k	ujgjh «khacd Bkdwj	vktksck	Bkdwj	13-07-1978

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45	lsokiVkP;k izFke i`”Bkph izr	ujgjh «khacd Bkdwj	vktksck	Bkdwj	& &
46	7@12 mrkjk	1½ Ukjgjh «;acd f’kans 2½ fnudj «;acd f’kans	1½ vktksck 2½ pq- vktksck	& &	1995-96
47	tUe e`R;qps dksrokyh jftLVj	fnudjjko «;acd ekgknq	pqyr vktksck	Bkdwj	26-01-1951
48	‘kiFki«k ¼oS/krk½	vk’kk tuk/kZu culksMs	dkdw	& &	24-12-2010
49	Tkkr izek.ki«k	vferdqekj tuk/kZu culksMs	ekek	Bkdwj	06-10-2004
50	yXui=hdk	fot; ujgjh f’kans	vtZnkj dz-2	& &	18-04-2000
51	‘kiFki«k ¼oS/krk½	mTToydqekj ,dukFk f’kans	dqGca/kw	& &	31-03-32006
52	Tkkr oS/krk izek.ki«k	mTToydqekj ,dukFk f’kans	dqGca/kw	Bkdwj	13-09-2004
53	‘kiFki«k ¼vkMUkkokckcr½	fot; ujgjh f’kans	vtZnkj dz-2	& &	05-02-2011
54	‘kiFki«k ¼nkok iMrkG.kh ckcr½	fot; ujgjh f’kans	vtZnkj dz-2	& &	01-03-2011
55	‘kiFki= ¼uequk Q½	fot; ujgjh f’kans	vtZnkj dz-2	& &	01-03-2011
56	tUe izek.ki=	fot; ujgjh f’kans	vtZnkj dz-2	& &	20-06-1971
57	fo	kFkhZ izos’k o fuxZe mrkjk	fot; ujgjh Bkdwj	vtZnkj dz-2	Bkdwj
58	‘kkGk lksMY;kpk nk[kyk	fot; ujgjh Bkdwj	vtZnkj dz-2	Bkdwj	17-07-1989
59	‘kkGk lksMY;kpk nk[kyk	fot; ujgjh Bkdwj	vtZnkj dz-2	Bkdwj	27-06-1988
60	lsokiVkP;k izFke i`”Bkph izr	fot; ujgjh Bkdwj	vtZnkj dz-2	Bkdwj	& &

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Having regard to the above referred documentary evidence, it is clear that the petitioner has produced old documentary evidence in the nature of school record pertaining to his great-grandfather namely Trimbak Mahadu dated 11.04.1924, wherein the caste “Thakur” is recorded. Narhari Trimbak happens to be grandfather of the petitioner and in his school record dated 04.07.1956, caste “Thakur” is recorded.

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On careful scrutiny of the above referred old documentary evidence, it is very much clear that consistently caste “Thakur” is recorded in the school record of the blood relatives of the petitioner from parental side. No contra entries are found. The vigilance officer did not find any interpolation or manipulation in the old record relied by the petitioner of the year 1924.

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There is no justifiable reason to discard the documents of the year 1924 relied by the petitioner, which is of pre-independence era. No contra entries are found during the vigilance enquiry. The committee has completely overlooked that aspect and invalidated the tribe claim of the petitioner. The finding recorded by the committee to that effect appears to be erroneous.

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Now coming to the caste validity certificates issued in the family of the petitioner. It is evident from the record that certificate of validity dated 15.07.2019 is issued in favour of real brother of the petitioner namely Deep Sanjay Thakur. The real cousin brother of the petitioner namely Vyom Vijay Thakur is also issued with the validity certificate dated 15.07.2019, apart from other validity certificates issued in his family from the parental side. As on today, the validity certificates relied upon by the petitioner still hold the field

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and no reason to discard the same. The reasons recorded by the committee in its order in para 9 appear to be erroneous. Deep Sanjay Tkahur happens to be real brother of the petitioner who is issued with the validity certificate so also real cousin brother Vyom Vijay Thakur. It is stated in the impugned order while recording the finding against issue No.2 that above said validity holders did not produce the true genealogy and thereby obtained validity certificates. Be that as it may, the validity certificates relied upon by the petitioner are still hold field, and therefore, the petitioner is entitled to get benefit of those validity certificates in view of the decision of the Bombay High Court in case of Anand (supra), when there is no legal impediment.

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The committee has also observed that the family of the petitioner is not migrated from tribal area. That observation made by the committee is 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

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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.

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Now coming to the another finding recorded by the committee regarding failure to prove the affinity test. The genuineness of a caste claim needs to be considered not only by way of detail examination of the documents but also on the affinity test, which would include the anthropological and ethnological traits etc. of the petitioner. The affinity test is not a litmus test. We would like to place reliance in case of Anand (supra), wherein it is observed by the Hon’ble Supreme Court that affinity test may not be regarded as a litmus test. The affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.

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On careful scrutiny of the documentary evidence produced by the petitioner viz. right from the year 1924 pertaining to petitioner’s great-grandfather coupled with other evidence make out a clear picture that caste of the family of the petitioner is recorded as “Thakur”. No contra entries are found during the vigilance enquiry.

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There are three validity certificates in the family of the petitioner including his real brother. The tribe claim as “Thakur” Scheduled Tribe can not be denied to the petitioner.

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In view of the above, the findings recorded by the committee are found erroneous. The impugned order passed by the committee invalidating tribe claim of the petitioner needs to be quashed and set aside. The petitioner is entitled to get the tribe validity certificate. With these reasons, we conclude and proceed to pass the following order.

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O R D E R

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(i) The impugned order passed by respondent No.1 / Scrutiny Committee, Aurangabad dated 11.12.2019 is hereby quashed and set aside.

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(ii) Respondent No.1 / Scrutiny Committee, Aurangabad shall issue validity certificate to the petitioner of being a member of “Thakur Scheduled Tribe” forthwith.

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(iii) The said validity certificate shall be subject to the decision that would be taken by the committee in the proceedings re-opned of the validity holders relied by the petitioner.

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(iv) The writ petition is disposed of. No order as to costs.

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( SHRIKANT D. KULKARNI ) ( S.V. GANGAPURWALA ) JUDGE JUDGE

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S.P. Rane

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Vijay Narhari Shinde v. Scheduled Tribe Certificate Scrutiny Committee Aurangabad Thorugh Its Member Secretary and Another

Case brief

What is this about?

What did the court decide?

Vijay Narhari Shinde v. Scheduled Tribe Certificate Scrutiny Committee Aurangabad Thorugh Its Member Secretary and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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