SOMNATH DIGAMBAR GAIKWADversusSTATE OF MAHARASHTRA , THROUGH SECRETARY AND ORS.

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JPP


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CIVIL APPELLATE JURISDICTION

              WRIT PETITION NO. 6383 OF 2018

Somnath Digamber Gaikwad.                      … Petitioner.

       V/s.

State of Maharashtra & Ors.                    ... Respondents.


Mr. R.K. Mendadkar for the Petitioner.
Mr. V.S. Gokhale, 'B' Panel Counsel for the State – Respondents 1 &
2.
Ms. Oorja Dhond for Respondent 3 – MCGM.


                              CORAM : R.M. Borde and
                                      Prithviraj K. Chavan, JJ.

                               DATE : 13th August, 2018.

P.C. :-

               Heard.


2.             The Petitioner claims to be belonging to Thakar
Scheduled Tribe and has been employed as a security guard with the
Municipal Corporation of Greater Mumbai as against the post
reserved for Scheduled Category. The Tribe Certificate issued to the
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Petitioner by the Competent Authority was referred to Respondent
No. 2 – Committee for verification. The Scrutiny Committee, on
consideration of the report of the Vigilance Cell as well as the
documentary evidence produced by the Petitioner before the
Committee and after extending the opportunity of hearing to the
Petitioner recorded the finding that the Petitioner does not satisfy
the affinity test and after due verification of the claim of the
Petitioner and on consideration of the documentary evidence as well
as the report of the Vigilance Cell, the Committee proceeded to
direct invalidation of the Tribe Certificate issued to the Petitioner
and the same has been cancelled and confiscated.


3.          In order to substantiate his claim the Petitioner had
placed reliance on the documentary evidence in the form of School
Leaving Certificate issued to two uncle of the Petitioner by name
Narayan Raghunath Thakar and Adinath Raghunath Thakar
wherein entry in respect of their caste has been recorded as Thakar
(Hindu). In the School Leaving Certificate the date of entry in the
School have been recorded as 04.09.1929 and 09.09.2019
respectively.   The Petitioner also places reliance on the School
Leaving Certificate issued to his grandfather by name Raghunath
Ananda Thakar wherein entry in respect of caste have been recorded
as Thakar and the date of admission in the school is 10.03.1891. The
Petitioner also places reliance on the School Leaving Certificate of his
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father by name Digambar Raghunath Gaikwad and in the certificate
the entry in respect of his caste has been recorded as Hindu Thakar
and the date of admission to the School is recorded as 18.04.1934.
The Petitioner contends that the above referred documentary
evidence is sufficient to conclude that the Petitioner belongs to
Thakar Scheduled Tribe.         It has not been found that the
documentary evidence are either fabricated or the entries therein are
manipulated. So far as the school entries of the blood relations of the
Petitioner is concerned, the caste is recorded in the documents as
either Thakar or Hindu Thakar. The Vigilance Cell has conducted
an enquiry and recorded statements of the members of the society.
The Vigilance Cell comprises of an expert in the tribal matters who
is conversant with the traits and characteristics of the tribe. The
Vigilance Cell has reported that the Petitioner does not appear to be
belonging to Thakar Scheduled Tribe.          The original place of
residence of the ancestors of the Petitioner is Chikhalthan, Taluka
Karmala, District – Solapur. The Petitioner appears to have affinity
with Bhat Thakar Community which is not included in Scheduled
Tribe category. The statement of the Petitioner and his relations is
not in conformity with the ethnological traits and characteristics of
the Thakar Tribe. The Petitioner himself in his deposition before
the Committee on 18.01.2017 has stated that he belongs to 'Bhat
Thakar' Community and his ancestors were balutedars.               The
Committee thus has concluded that the Petitioner belongs to 'Bhat
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Thakar' Community as has been admitted by him which is not
included in Scheduled Tribe category. The Petitioner does not
answer the affinity test and as such his claim cannot be considered
favourably. Apart from this aspect the Scrutiny Committee has also
noticed that the ancestors of the Petitioners were not admittedly
belonging to the restricted areas where tribal community is normally
found. It is also one of the factors to be taken into account while
considering the affinity of a person with the concerned tribe. The
Committee as such proceeded to reject the claim.


4.          We have perused the order passed by the Caste Scrutiny
Committee and we do not find any infirmity in the order. The
documentary evidence produced by the Petitioner admittedly
records the entries in respect of the caste in the school record as
Thakar Hindu or Thakar. In the matter of Murlidhar Ramkrishna
Gathe v/s. State of Maharashtra reported in 2007(3) Bom.C.R.
176. The Division Bench has observed “ this Court has judicially
recognized that the word or surname “Thakur” is shared by both
forward and backward communities. The burden of proving that the
person belongs to a S.T./S.C./O.B.C        lies heavily on the person
seeking the certificate. The role of the Vigilance Committee is to
conduct an enquiry to ascertain and verify the material produced by
the candidate including as to traits and characteristics of tribe. If the
material and information of traits, characteristics, customs, deities
and other information did not relate to Thakur S.T., further
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verification of that material normally would be uncalled for.      The
law, as declared in Madhuri Patil would require verification of the
information given.    If that information was associated with the
Thakur S.T., then to rule out that the information given was based
on bookish knowledge, the vigilance enquiry is required to be
conducted to establish that the evidence produced is genuine. Once
the committee with whom are associated experts, conversant with
the anthropological and ethnological traits and other characteristics
of the community, rule out the association of the Petitioner to that
community, the burden is on the Petitioner to establish otherwise.”


5.          In the instant matter the Petitioner has failed to establish
his affinity with the S.T. community. The Petitioner has admitted in
his own statement before the Committee that he belongs to Bhat
Thakar community which is not associated or part with the
Scheduled Tribes. The report of vigilance enquiry also does not
support the claim of the Petitioner.


6.          In an instructive article on the subject entitled “Pseudo-
Tribalization: An Anthropoligical Perspective” is written by Dr.
Robin D. Tribhuwan, an Anthropoligist associated with the Tribal
Research & Training Institute at Pune. Reference to similarities of
nomenclatures between tribal and non-tribal communities. So far as
the Thakar is concerned, entry no.3 in the chart records :
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      Tribal Community         Non Tribal Community

      “Thakur/Thakar           Thakur (including Bhat,
      Ka-Thakur/               Brahmabhat, Thakur,
      Ka-Thakar/               Kshatriya Thakur,
      Ma-Thakur/               Rajput Thakur,
      Ma Thakur                Sindhi Thakur,
                               Maratha Thakur,
                               Pardeshi Thakur)”


7.          The Petitioner himself claims that he belongs to Bhat
Thakar which is a non-tribal community. Apart from this, it must be
noticed that the Petitioner is resident of Chikhalthan No.1, Taluka -
Karmala,    District   –   Solapur, whereas      the   origin   of   the
Thakar/Thakur is normally restricted to five districts viz.
(1)Ahmednagar District in Akola, Rahuri and Sangamner Taluka,
(2) In Kolaba District (now Raigad), Karjat, Khalapur, Pen, Panvel
and Sudhagad Talukas and Matheran, (3) In Nashik District Igatpur,
Nashik and Sinnar Talukas, (4) In Thane District Thane, Kalyan,
Murbad, Bhiwandi, Vasai, Wada, Shahapur, Palghar, Jawhar and
Mokhada Talukas. It is not the case of the Petitioner that the family
migrated to Khamgaon from any of these areas. The Petitioner
contends that after removal of area restrictions, it is not necessary for
him to establish that his family has migrated from the restricted areas
of origin. Reliance is placed on the judgment in the matter of
Dinesh Ramesh Thakur v/s. State of Maharashtra and Ors.
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reported in 2013(3) Bom.C.R. 463 . In the aforesaid matter the
Scrutiny Committee held that the removal of area restrictions by Act
No.108 of 1976 would not enable any person belonging to any
tribe/community to claim the status of Thakur Scheduled Tribe and
that he will have to establish that he and his predecessors have
migrated from the earlier prescribed area. The decision of the
Scrutiny Committee in the aforesaid matter was under challenge
before the Division Bench. The Division Bench, on consideration of
various judgments of other Division Benches, dealt with the issue
and relying upon Full Bench judgment decision in the matter of
Shilpa Vishnu Thakur has drawn the conclusion as recorded in
paragraph 37 of the judgment, which reads thus :


           “37. We need not dilate over the issue as, in our view,
           upon removal of the area restriction by the amending
           Act of 1976, the persons belonging to a particular
           Scheduled Tribe, though residing in different areas than
           earlier specified or migrated from the said area, can also
           claim to be belonging to the same Scheduled Tribe. In
           our view, however, the respondent Tribe Scrutiny
           Committee is not prohibited from applying the test of
           original place of residence as one of the factors to be
           considered in arriving at a decision of validation of the
           claim of the claimant in view of the clear
           pronouncement of law in Full Bench decision of this
           Court in Shilpa Vishnu Thakur vs. State of Maharashtra
           & Others, quote (supra).”
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8.          The decision of the Division Bench in the matter of
Dinesh Ramesh Thakur interpreting Full Bench judgment in the
matter of Shilpa Vishnu Thakur , have been held to be the correct
proposition of law. The Full Bench of this Court in the matter of
Yogita Anil Sonawane v/s. State of Maharashtra reported in
2018(1) All MR 76 has held that one of the important factors for
tribe Scrutiny Committee to consider would be to find if or not the
applicant is or his ancestral resided in earlier scheduled areas. It may
not be the sole criteria but however is one of the important
consideration while dealing with the issue.


9.          In the instant matter, the Petitioner, on the basis of the
documentary evidence, has failed to establish that he belongs to
Thakar S.T. Similarly, the vigilance report also does not support the
claim of the Petitioner. He has failed to demonstrate affinity with
the Thakar S.T. Apart from this, the Petitioner himself has stated
before the Committee that he belongs to 'Bhat Thakar' Community
which admittedly is not part of Thakar S.T. The Petitioner has
placed reliance on the judgment in the matter of Motilal s/o.
Namdeo Pawar v/s. Scheduled Tribe Certificate Scrutiny
Committee, Nashik and Ors. reported in 2017 SCC OnLine
Bom 9778 as well as the decision in the matter of Jaywant Dilip
Pawar v/s. State of Maharashtra & Ors. in Writ Petition No.
2152 of 2007 decided on 26th September 2017. The proposition of
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                        law enunciated in the aforesaid judgment is also in tune with the
                        discussion as recorded above and more specifically, is inconsonance
                        with the law laid down by the Full Bench in the matter of Shilpa
                        Thakur as well as Ku. Yogita Anil Sonawane .


                        10.        For the reasons recorded above, no interference is called
                        for in the decision recorded by the Scrutiny Committee.         The
                        Petition is devoid of substance and does not deserve favourable
                        consideration. The Petition stands rejected.




                          (Prithviraj K. Chavan, J.)                   (R. M. Borde, J.)
            Digitally
Jyoti   signed by Jyoti
        Prakash Pawar
Prakash Date:
        2018.08.16
Pawar 17:13:59
        +0530