CHETAN STISHCHANDRA THAKURversusTHE STATE OF MAH AND ORS

                              1                   WP7079.2009&Anr

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
                  BENCH AT AURANGABAD.

               WRIT PETITION NO. 10123 OF 2010

Smt. Monika D/o. Satish Thakur,
Age : 23 years, Occu. Student,
R/o. 8­B, Santoshi Mata Colony,
NakaneRoad, Deopur, Dhule, Dist. Dhule.           … Petitioner

         VERSUS

1. The State of Maharashtra
   Department of Tribal Development,
   Mantralaya, Mumbai­32,
   Through its Secretary.

2. The Scheduled Tribe Certificate Scrutiny
   Committee, Nandurbar Division, Nandurbar,
   through its Member Secretary.

3. The Sub­Divisional Officer,
   Dhule Division, Dhule, Dist. Dhule.

4. Adarsh Shikshan Prasarak Mandal's,
   Bapusaheb D.D. Vispute College of Education,
   Walwadi, Dist.Dhule, Through its Principal.

5. North Maharashtra University,
   Jalgaon, through its Registrar.                … Respondents

                                ..........
   Mr A. S. Golegaonkar with Mr M. A. Golegaonkar, Advocate for
                              petitioner
            Mr P. S. Patil, AGP for respondents No. 1 to 3
                  Respondents No. 4 and 5 served
                               .............

                               WITH

                WRIT PETITION NO. 7079 OF 2009

Chetan S/o Satishchandra Thakur,
Age : 19 years, Occu. Student,
                              2                        WP7079.2009&Anr

R/o. Plot 8­B, Santoshi Mata Colony,
Nakane Road, Deopur Dhule, Dist. Dhule.                … Petitioner

         VERSUS

1. The State of Maharashtra
   Through its Secretary,
   Tribal Development Department,
   Mantralaya, Mumbai­32,
   Through its Secretary.

2. The Committee for Scrutiny and Verification of Tribe Claims,
   Through its Vice­Chairman and its Member,
   Nandurbar.

3. The Sub­Divisional Officer,
   Dhule Division, Dhule, Dist. Dhule.

4. The Director of Technical Education,
   Maharashtra State, Mumbai.

5. The Principal,
   Maratha Vidya Prasarak Samaj's College of
   Engineering, Udoji Maratha Boarding Campus,
   Gangapur Road, Nashik, Dist. Nashik.      … Respondents

                               ..........
           Mr A. H. Koralkar, Advocate for the petitioner
           Mr P. S. Patil, AGP for respondents No. 1 to 4
                     None for respondent No. 5
                              .............


                             CORAM : S. V. GANGAPURWALA &
                                     A. M. DHAVALE, JJ.

                             DATE OF RESERVING THE JUDGMENT : 24TH FEBRUARY, 2018
                             DATE OF PRONOUNCING THE JUDGMENT : 04TH MAY, 2018




JUDGMENT (PER A. M. DHAVALE, J.) :­

1.       These petitions are filed by Monika and Chetan, who are

real brother and sister. They are seeking quashing and setting aside
                                3                   WP7079.2009&Anr

of the orders invalidating their tribe claim of Thakur, Scheduled

Tribe. The impugned orders passed by Caste Scrutiny Committee,

Nandurbar on 24.09.2009 and 24.06.2010, respectively, are on the

same grounds.



2.        Pleadings and the arguments of Shri. Golegaonkar, learned

advocate for the petitioner, disclose following grounds for challenge.

     (i) One brother and three sisters of the petitioners have been
          granted validity certificates of 'Thakur' Scheduled Tribe.


     (ii) The consistent school record of         the petitioners, their
          siblings, father and grand­father disclose caste as 'Thakur',
          which is declared as Scheduled Tribe. It was not open for
          the Committee to consider whether the petitioner are
          tribals or non­tribals.


     (iii) The committee erred in considering the area of residence
          even though the area restriction has been removed by the
          amendment of 1976 to the Scheduled Tribes Order.


     (iv) When the caste was shown as Hindu­Thakur in the school
          record of the petitioners and their forefathers and when
          there were validity certificates in favour of their four
          siblings, the same could not have been ignored on the basis
          of the affinity test. Besides, no specific reasons are disclosed
          to show that the affinity test & home enquiry was against
          the petitioners.
                               4                  WP7079.2009&Anr




3.       Shri. P. S. Patil, learned Assistant Government Pleader for

respondent/State strenuously argued in support of the orders with

following submissions :­

         (i)         The directions were issued in the case of
         Madhuri Patil vs Addl. Commissioner & Ors. reported in
         AIR 1995 SC 94 and State enacted 'the Maharashtra
         Scheduled Castes, Scheduled Tribes, Denotified Tribes
         (Vimukta Jatis), Nomadic Tribes, Other Backward Classes
         and Special Backward Category (Regulation of Issuance
         and    Verification   of)   Caste   Certificate   Act,   2000'
         (Maharashtra Act No. XXIII of 2002) so as to curb spurious
         claims for caste certificates and persons not belonging to
         Scheduled Tribe obtaining tribe certificates thereby denying
         the persons of genuine Scheduled Tribes from enjoying the
         constitutional benefits.    Still there was huge increase in
         population of Scheduled Tribe.       It was not biologically
         possible.


     (ii) There is caste by name Thakur in Maharashtra. The school
         record of the petitioners & their forefathers showed only
         caste as Hindu­Thakur.       Nowhere it is stated that the
         petitioners' forefathers were belonging to Thakur­tribe. It
         was mandatory for the petitioners to prove that they belong
         to Scheduled Tribe (ST) Thakur before claiming validity
         certificate of ST.
                               5                   WP7079.2009&Anr

     (iii) The certificates granted in favour of siblings of the
         petitioners were granted even though affinity test and
         vigilance report were found not in favour of the petitioners.
         Those were granted even when the scrutiny committees
         were not satisfied about the tribe claim of the siblings of
         the petitioners, in view of the confused legal position
         holding that the Scrutiny Committee had no jurisdiction to
         consider whether Thakur is a caste or a tribe. The position
         has been now cleared by full Bench judgment in Shilpa
         Vishnu Thakur vs State of Maharashtra and others
         reported in (2009) 3 Mh.L.J. 995 and the Apex Court
         judgments.


     (iv) The caste/tribe claim is to be decided by the Scrutiny
         Committee on the broader prospective. It has to consider
         old record. Vigilance report is integral part of enquiry. The
         affinity test for anthropological or sociological linkage is
         relevant consideration.


     (v) Though area restriction has been removed, it is open for the
         Committee to consider whether the petitioners forefathers
         had roots in localities identified as localities of Thakur tribe
         and whether there was migration of the forefathers. There
         is no claim of the petitioners that they were belonging to
         such areas and there was subsequent migration.


4.        The record and proceedings of the claims of both the

petitioners as well as the proceedings with respect to their siblings

were called and perused.
                               6                   WP7079.2009&Anr




5.        Heard learned counsels appearing on behalf of the

respective parties and we have gone through the voluminous case

laws produced before us.



6.        Before appreciating the rival contentions, it is necessary to

record the factual aspects. Monika's proposal for caste verification

was forwarded to the Scrutiny Committee when she was in 12 th std.

Now she has completed B.A. and she claims that she is selected as

Shikshan Sevak but did not get appointment order for want of

validity certificate. Her claim was based on caste recorded as Hindu­

Thakur in the school record of her father and grand father at the time

of their admission on 08.06.1956 and 15.06.1935, respectively.

Monika's school record does not disclose the caste. She relied on

caste validity certificates issued in favour of her three sisters

Meghana    dt.   17.03.2004,    Vandana     dt.   02.06.2005,   Yogita

dt.17.03.2004 and brother Ganesh dt. 20.03.2005. Besides she relied

on caste certificate issued in favour of her father by Executive

Magistrate on 31.08.1977 and later on by Sub­Divisional Officer on

31.05.2000. Pertinently, her father was serving as Special Accounts

Auditor in a Cooperative Society at Dhule. In vigilance, statement of

her father was recorded and genealogical tree was produced. She
                               7                  WP7079.2009&Anr

has filed her reply to the vigilance report. The Scrutiny Committee

held that, the affinity test did not support Monika's claim. The

certificates issued in favour of her siblings by earlier scrutiny

committees were issued without support of vigilance test and without

satisfaction of the Committee members. It is not shown that Monika's

forefathers belonged to the areas identified as Tribal areas of Thakur­

tribe and thereafter they were migrated. She failed to prove her tribe

claim. Hence the claim was rejected by order dt. 24.06.2010.



7.        Chetan is real brother of Monika. The facts of his case are

identical. His claim was rejected by order dt. 24.09.2009 on the

same grounds.



8.        The point for our consideration is a) whether the

rejection of claim of the petitioners is made by the Scrutiny

Committee by not following the proper process and whether it needs

any interference?



9.        There is huge litigation on the subject and lot of judgments

on the same. There are many judgments taking divergent views.



10.       In Shilpa Thakur's case (supra), the full Bench of this
                                8                 WP7079.2009&Anr

Court has taken a resume of the background of the subject. Article

342 empowers the President to specify certain tribes or tribal

communities or parts of or groups within tribes or tribal communities

as Scheduled Tribes. Such presidential order was issued on

06.09.1950. Thakur­tribe is one of the Scheduled Tribes specified in

presidential order. In the past, the issuance of caste certificates was

not systematic, scientific and with thorough enquiry. Considering the

spurious claims made by persons not belonging to Scheduled Tribe or

Scheduled Caste thereby taking away the privileges and benefits only

meant for Scheduled Tribe people, in Madhuri Patil's case, the Apex

Court issued several guidelines. It observed that, there was necessity

to give more weightage to the old documents of pre­presidential

order. There should be also affinity test, home enquiry and

verification of documents through Vigilance Officer and Special

Committees should be appointed for scrutiny of the caste certificates

issued by the competent authorities. It was observed that, despite the

cultural advancement, the genetic traits pass on from generation to

generation and no one could escape or forget or get them over. The

tribal customs are peculiar to each tribe or tribal communities and

are still being maintained and preserved. The Apex Court issued

directions to introduce the scheme of verification of caste claims,

until comprehensive legislation fills the gap.
                                9                   WP7079.2009&Anr




11.        The Maharashtra Act No. XXIII of 2002 enacted the

Maharashtra Scheduled Castes, Scheduled Tribes, De­notified Tribes

(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special

Backward Category (Regulation of Issuance and Verification of) Caste

Certificate Act, 2000.



12.        In the case of Palghat Jilla Thandan Samudhaya

Samrakshna Samithi Versus State of Kerala reported in 1994 SCC

(1) 359, the issue was whether the Scrutiny Committees has right to

consider whether people belonging to Ezhavas/Thiyyas called as

Thandan from Malbar district were included in Scheduled Caste

Thandan.    The presidential order under Article 341 had specified

Thandan caste as a Scheduled Caste.            It was held that, the

presidential order is to be read as it is and there can be no alteration,

modification or expansion of the scope of the order. Neither the

Committee nor the State Government nor the Court can embark upon

an enquiry to determine whether particular group of Thandan in the

Malabar area was excluded from the Scheduled Castes Order or not.



13.        In the case of State of Maharashtra vs. Milind Katware &

Ors reported in (2001) 1 SCC 4, the issue was whether Halba­Koshti
                               10                       WP7079.2009&Anr

was part of Halba/Halbi declared as a Scheduled Tribe. The Apex

Court again held in this case that the presidential order is to be read

as it is and it was not open to make any alteration or expansion of the

same. Halba­Koshti was not included in presidential order and it

cannot be read as part of Halba­Scheduled Tribe. These two rulings

probably gave rise to divergent views.



14.       In Maharashtra, Thakur is a tribe as well as a caste. In a

judgment of Full Bench in Shilpa Thakur's case, in para 38, this

factual aspect has been accepted. Thakur caste includes people not

belonging to any reserved category whereas; Thakur­tribe is a

Scheduled Tribe. A group of judgments proceeded on assumption

that once it is shown that the person belongs to Thakur, it must be

assumed that he is a Thakur–tribe and it is not open to show that he

is a non­tribal. Following are the judgments taking such view.

      (1) Chandrakant Bajirao Shinde v State of Maharashtra 2003
          (2) Mh.L.J. 471.


      (2) Shobha Mahesh Jadhav v State of Maharashtra (WP No.
          856/1998) decided on 23.02.1998.


      (3) Ms Asmita B. Dhage v State of Maharashtra & Ors (WP No.
          2746/1998)     decided    by   this   Court    on   19.06.1999
          (Principal Seat).
                                   11                 WP7079.2009&Anr

      (4) Ravindra S/o Baburao Shinde vs The State of Maharashtra
            (WP No. 5123/1999 decided on 20.06.2000).


      (5) Dattu S/o Namdev Thakur v State of Maharashtra & Ors
            (WP No. 7813/2009) and other connected group decided
            by Division Bench at Aurangabad on 14.12.2009.



15.         There was a group of judgments taking a view that it was

permissible and in fact the Committee was bound to consider

whether the petitioner belongs to Thakur­tribe or not.

      (i)   Suchita   Bhuyar   v    State   of   Maharashtra   (WP   No.
            2434/2003) dt. 05.06.2003.


      (ii) Murlidhar Gathe v/s State of Maharashtra reported in 2007
            (3) Mh.L.J. 308.


      (iii) Dinesh Thakur v/s State of Maharashtra reported in 2012
            (4) Mh.L.J. 396.



16.         In State of Maharashtra v Sunil Thakur (CA No. 4088 of

1998) decided on 21.01.2004, the Apex Court observed “the question

that arose for consideration in Palghat vs State of Kerala (supra) was

whether the State Government or the Court can enquire into or let in

evidence about the correctness of entry of Scheduled Caste in the

Scheduled Caste Order which had to be applied as it stands until the

same is amended by appropriate legislation. Such a question clearly
                               12                   WP7079.2009&Anr

did not arise in the case at hand. The question that arose for

consideration is already noted above as to whether the respondents

belong to Thakur (ST) which is one of the enumerated entry in the

Scheduled Tribes order. That being the position, the High Court in

our view was not right in justifying the decision in writ petition by

merely referring to the decision of this Court in Palghat's case.” The

High Court order was set aside and the matter was remanded for

fresh consideration.



17.       In the case of Raju Ramsing Vasave v Mahesh Deorao

Bhivapurkar reported in (2009) 1 Mh.L.J. 1, a co­employee of

respondent no. 1 challenged his validity certificate granted as

belonging to Halba­tribe. Relying on Milind Katware's case, the High

Court had decided that it was impermissible to take inconsistent view

and it was not permissible to hold that the petitioner was not a tribal.

The Apex Court in the context held that:

      21.       We reiterate that to fulfill the constitutional
      norms, a person must belong to a tribe before he can stake
      his claim to be a member of a notified Scheduled Tribe.
      When an advantage is obtained by a person in violation of
      the constitutional scheme, a constitutional fraud is
      committed.


18.       In State of Maharashtra and Others vs Ravi Prakash

Babulalsing Parmar and another reported in (2007) 1 SCC 80, the
                                13                     WP7079.2009&Anr

issue was whether the respondent was member of Scheduled Tribe

belonging to Thakur community as envisaged under Entry 44 of the

list of the Scheduled Tribes pertaining to the State of Maharashtra

issued in terms of the Scheduled Castes and Scheduled Tribes Orders

(Amendment) Act, 1976 (similar one to the present case). The High

Court had taken a view that, in view of the judgment in Milind

Katware's case, no enquiry was permissible whether the person

belongs to Thakur tribe or Thakur caste. It has to act on the

documentary evidence. The Apex Court observed that,

    12.        The Caste Scrutiny Committee is a quasi­judicial
    body. It has been set up for a specific purpose. It serves a social
    and constitutional purposes. It is constituted to prevent fraud
    on Constitution. It may not be bound by the provisions of
    Indian Evidence Act, but it would not be correct for the superior
    courts to issue directions as to how it should appreciate
    evidence. Evidence to be adduced in a matter before a quasi­
    judicial body cannot be restricted to admission of documentary
    evidence only. It may of necessity have to take oral evidence.

          It referred to the ratio laid down in Madhuri Patil's case

with regard to Koli­Mahadeo tribe as follows.


    19. ….........
      Since the Scheduled Tribes are a nomadic class of citizens
      whose habitat being generally hilly regions or forests,
      results in their staying away from the mainstream of the
      national life. Therefore, the State is enjoined under our
      Constitution to provide facilities and opportunities for
      development of their scientific temper, educational
      advancement and economic improvement so that they may
      achieve excellence, equality of status and live with dignity.
      Reservation in admission to educational institutions and
      employment are major State policies to accord to the tribes,
                                 14                    WP7079.2009&Anr

        social and economic justice apart from other economic
        measures. Hence, the tribes, by reason of State's policy of
        reservation, have been given the exclusive right to
        admission into educational institutions or exclusive right to
        employment to an office or post under the State etc. to the
        earmarked quota. For availment of such exclusive rights by
        citizens belonging to tribes, the President by a notification
        specified the Scheduled Tribes or tribal communities or
        parts of or groups of tribes or tribal communities so as to
        entitle them to avail of such exclusive rights. The Union of
        India and the State Governments have prescribed the
        procedure and have entrusted duty and responsibility to
        Revenue Officers of gazetted cadre to issue social status
        certificate, after due verification. (The underlining is by us)

19.       With     reference   to     the   observations   in   State     of

Maharashtra vs. Milind Katware & Ors reported in (2001) 1 SCC

4, it is observed that:


        22.       The said decision, therefore, is an authority for
        the proposition that only because a claim is made by a
        person that he belongs to a member of a tribe notified to be
        Scheduled Tribe in terms of the provisions of the Scheduled
        Castes and Scheduled Tribes Orders (Amendment) Act,
        1976, no immunity in absolute terms can be claimed.


20.       The Apex Court referred to the observations in its judgment

from Gayatrilaxmi Bapurao Nagpure vs State of Maharashtra &

ors. reported in 1996 (3) SCC 685, which read as follows:


      .         The High Court without appreciating the
      probative value of the documents placed before it has
      dismissed the writ petition filed by the appellant by simply
      accepting the conclusions reached by the second­respondent
      Committee. Undoubtedly, in cases of this type, the burden
      heavily lies on the applicant who seeks such a certificate.
      That does not mean that the authorities have no role to play
                                   15                   WP7079.2009&Anr

        in finding out the correctness or otherwise of the claim for
        issue of a caste certificate. We are of the view that the
        concerned authorities must also play a role in assisting the
        Committee to arrive at a correct decision. In this case,
        except the documents produced by the appellant, nothing
        has been produced by the authority concerned to arrive at a
        different conclusion.


21.          In the case of Pournima Pawar v State of Maharashtra

reported in AIR 2013 SC 1508, same Scrutiny Committee had

validated the caste claim of the paternal uncle of the petitioners. The

Scrutiny Committee after vigilance enquiry noted that there was

contra evidence showing that the petitioner was belonging to Thakur

caste (‘Bhat’, ‘Thakar’, ‘Marathe’ and ‘Hindu Marathe’). The Apex

Court held the decision of Scrutiny Committee that the petitioner did

not belong to Scheduled Tribe Thakar was not perverse or based on

no evidence. Hence it was upheld.



22.          In the case of Anand vs. Committee for Scrutiny &

Verification of Tribe Claims reported in (2012) 1 SCC 113, the

scope for enquiry by Scrutiny Committee was under consideration.

The Apex Court quoted with approval the following observations

from Madhuri Patil's case (supra) with regard to relevancy of affinity

test.

        “The anthropological moorings and ethnological kinship
        affirmity (sic) gets genetically ingrained in the blood and no
        one would shake off from past, in particular, when one is
        conscious of the need of preserving its relevance to seek the
                                 16                     WP7079.2009&Anr

      status of Scheduled Tribe or Scheduled Caste recognised by
      the Constitution for their upliftment in the Society. The
      ingrained Tribal traits peculiar to each tribe and
      anthropological features all the more become relevant when
      the social status is in acute controversy and needs a decision.
      The correct projectives furnished in proforma and the
      material would lend credence and give an assurance to
      properly consider the claims of the social status and the
      officer or authority concerned would get an opportunity to
      test the claim for social status of particular caste or tribe or
      tribal community or group or part of such caste, tribe or
      tribal community. It or he would reach a satisfactory
      conclusion on the claimed social status.

      In para 18, it is observed, 'therefore, insofar as the State of
      Maharashtra is concerned, the verification and grant
      and/or rejection of Scheduled Tribe Certificate by the
      Caste Scrutiny Committee has to be as per the procedure
      prescribed in the Rules'.


23.        It provides that if the Caste Scrutiny Committee is not

satisfied with the documentary evidence produced by the applicant, it

shall forward the application to the Vigilance Cell for conducting the

school, home and other enquiry. Sub­rule (3) of Rule 12 requires the

Vigilance Officer to visit the local place of residence and the original

place from where the applicant hails and usually resides (Para 19).


      In para 20, it is observed, “it is evident that the scope of
      enquiry by the Vigilance Officer is broad­based and is not
      confined only to the verification of documents filed by the
      applicant with the application or the disclosures made
      therein. Obviously, the enquiry, supposed to be conducted by
      the Vigilance Officer, would include the affinity test of the
      applicant to a particular tribe to which he claims to belong.
      In other words, an enquiry into the kinship and affinity of
      the applicant to a particular Scheduled Tribe is not alien to
      the scheme of the Act and the Rules. In fact, it is relevant and
                               17                   WP7079.2009&Anr

      germane to the determination of social status of an
      applicant.”

      In Shilpa Thakur's case, the Full Bench of this Court noted,
      'A person claiming to be belonging to Scheduled Tribe must
      prove that he belongs to the Nomadic Tribe, which is shown
      in presidential order as Scheduled Tribe. Mere fact that the
      document produced by a person reflects his surname as
      being synonymous with the name of designated tribe is not
      sufficient to establish that the applicant belongs to a
      Scheduled Tribe. Before a person can be regarded as
      belonging to a Scheduled Tribe, that person must
      demonstrably be a member of the tribe. It is also held that
      the vigilance enquiry is integral part of the scrutiny by the
      Scrutiny Committee.'

24.       We rely on above rulings to hold that the petitioners must

prove that they belong to a tribe shown as Scheduled Tribe and it is

permissible to consider whether the petitioners are tribal or non­

tribal.



25.       It is also pertinent to note that, as per Article 342, only

person belonging to tribes or tribal communities can be declared as

Scheduled Tribes. Unlike, article 341 which empowers the President

to declare a particular tribe or caste as a Scheduled Caste, there is no

provision for declaring the persons of particular caste as Scheduled

Tribe.


Point: Relevance of Validity Certificates of near relative : ­


26.       It is trite that, a person inherits his caste from his father.

Therefore, when a person is belonging to a particular caste, his
                                 18                    WP7079.2009&Anr

brothers, real sisters, sons and daughters, grand­sons, grand

daughters shall also belong to the same caste. It will be not proper to

hold that, particular person belongs to Scheduled Tribe and his

brother or sister is not belonging to Scheduled Tribe. When a caste

or tribe certificate is issued in the name of any person after due

enquiry, his brother or sister or paternal relative is also entitled for

similar certificate. In this regard, it is however necessary that the

validity certificate issued in favour of the first person should be

properly issued.



27.        In the case of Raju Vasave (supra), the effect of the validity

certificate issued in favour of relative was under consideration. The

Apex Court observed that,

      “we do not mean to suggest that an opinion formed by the
      Committee as regards the caste of the near relative of the
      applicant would be wholly irrelevant, but, at the same time,
      it must be pointed out that only because, by mistake or
      otherwise, a member of his family had been declared to be
      belonging to a member of the Scheduled Tribe, the same by
      itself would not be conclusive in nature so as to bind
      another Committee while examining the case of other
      members of the family at some details. If it is found that in
      granting a certificate in favour of a member of a family,
      vital evidences has been ignored, it would be open to the
      Committee to arrive at a different finding.”
                  With regard to doctrine of stare decisis, it is
      observed “the rule of stare decisis is not inflexible so as to
      preclude a departure therefrom in any case but its
      application depends on facts and circumstances of each
      case. It is good to proceed from precedent to precedent but
      it is earlier the better to give quietus to the incorrect one by
                                 19                   WP7079.2009&Anr

      annulling it to avoid repetition or perpetuation of injustice,
      hardship and anything ex facie illegal, more particularly
      when a precedent runs counter to the provisions of the
      Constitution. The first two decisions were rendered without
      having the benefit of the decisions of this Court, that too
      concerning the interpretation of the provisions of the
      Constitution.
                 It is also held that decision rendered without
      jurisdiction shall be a nullity and when fraud is committed
      on the court nobody can take benefit of the same.
                 The principle of res judicata will not apply in such
      case.


28.        In the case of Pournima Pawar v State of Maharashtra

reported in AIR 2013 SC 1508, the validity certificate was issued in

favour of the petitioner's uncle Dilip but the Scrutiny Committee on

enquiry found contra evidence and invalidated the claim of the

petitioner. The High Court has confirmed the said finding and the

Apex Court upheld the decision of High Court.



29.        In Motilal Namdeo Pawar v Scheduled Tribe Scrutiny

Committee, Nashik (WP No. 07/2014) decided on 22.12.2017, the

Division Bench of this Court (Principal Seat) found that, issuance of

tribe validity certificate in favour of paternal relatives should have

been considered and validity certificate should have been issued to

the petitioner. (para 16)


30.        In Jahangir Gani Patekari vs. Divisional Caste Scrutiny

Committee No. 2, Kolhapur & Ors. (WP No. 3535 of 2013)
                               20                   WP7079.2009&Anr

dt.29.03.2016, validity of the relative was held to be relevant but

when no reasons were given while granting such certificate, it was

held as not decisive. The Scrutiny Committee refused to place

reliance on such certificate and the Division Bench of this Court

upheld the invalidation of the claim.


31.       In Madhuri Jadhav v State of Maharashtra & Ors

reported in [2014(3) Mh.L.J. 900], the resume of the case law on

the subject has been taken. Relying on Ayaaubkhan Noorkhan

Pathan Vs. State of Maharashtra reported in (2013) 4 Mh.L.J. 561

(SC), it was held that, if there were to be a legislation governing or

regulating grant of caste certificates, and if caste certificates are

issued after due and proper inquiry, such caste certificates will not

call for verification by the Scrutiny Committees. Such certificate will

not require further verification. It is further observed that, very

strong material evidence is required to rebut the presumption u/s

114(e) of Evidence Act about the caste certificate issued after

following the due procedure.


32.       In Mangesh Nivrutti Kashid & Ors. vs. District Collector

& Ors. reported in 2012 (5) Mh.L.J. 473, it was held that, the

Scrutiny Committee is obliged to follow the procedure spelt out in

the judgment in Madhuri Patil (supra) and that procedure is
                                21                  WP7079.2009&Anr

indispensable and is made mandatory before issuance of validity

certificate by the concerned Scrutiny Committee. In such a scenario,

if the argument of Mr.Gangal is to be accepted, then a person may

get the caste certificate on the basis of some documents alone and if

the documents are found in order, the scrutiny committee will issue

the validity certificate. In such a procedure there will be no

verification of the claim of the candidate without there being proper

inquiry.   The argument of the State is that, whenever the validity

certificate is issued to the near relative, there is no need to call for

the vigilance cell report, cannot be accepted. Each case will have to

be decided on its own merits and merely because one relative is

granted validity certificate, the certificates to others may not

automatically follow.


33.        In Dharmendra Devram Patil v Scheduled Tribe Caste

Certificate Scrutiny Committee & Ors reported in 2004 (4) Bom. C.

R. 474, it is observed, we have noted earlier that Rupchand's caste

claim was validated by the Additional Divisional Commissioner solely

on the basis of the validation order passed in favour of Devram and

Dashrath as well, and both these orders could not have been relied

upon. It was held that when there was no vigilance enquiry, the

validity certificate cannot be upheld.
                                  22                   WP7079.2009&Anr

34.          In Ravi Parmar's case (supra), it is held by the Apex Court

that, if caste certificate is obtained by fraud played by a person, such

certificate is required to be set aside.       It is held that, when a

certificate is granted to a person who is not otherwise entitled

thereto, it is entirely incorrect to contend that the State shall be

helpless spectator in the matter. It is held that,

      “33.      We may notice that in Bank of India and Another
      v. Avinash D. Mandivikar and Others [(2005) 7 SCC 690], a
      two­Judge Bench of this Court opined that the employee
      concerned having played fraud for obtaining an
      appointment, should not be allowed to get the benefit
      thereof.”


35.          Applying these principles, we find that, in the present case,

four validity certificate issued in favour of four siblings of the

petitioners are issued without satisfaction of the Scrutiny Committee

that the claimants therein belong to Scheduled Tribe. The Vigilance

Enquiry was conducted. There is reference that, the claims of the

petitioners were not supported by the affinity test.         In fact, the

Scrutiny Committee had rejected the claim of Yogita & Meghana but

this Court had remanded the matter holding that the Committee had

no option to consider whether the petitioners belong to non­tribal

group or not. Therefore, the Committee without satisfaction of mind

issued validity certificates. Same is the case with regard to certificate

issued in favour of Ganesh. The order hardly runs a page, still it is
                               23                   WP7079.2009&Anr

noted that the surnames origin, trait, characteristic, traditions of the

petitioner were not associated with Thakur­Scheduled Tribe. The

ethnic linkage towards Thakur­Scheduled Tribe was not established.

Still in view of the decision of this Court, the Scrutiny Committee had

no alternative but to hold the petitioner as belonging to Thakur ­

Scheduled Tribe. The order in favour of Vandana is similar to the

order in favour of Ganesh. As held in Raju Vasave's case, the High

Court decisions were rendered without hearing the benefit of the

decision of the Supreme Court. We find that, these validity

certificates will be of no assistance to the petitioners as there was no

satisfaction of the Scrutiny Committee members and as those were

conducted without following the due procedure. There was no

vigilance. The affinity test and home enquiry did not tally with the

traits, anthropological linkages of Scheduled Tribe ­ Thakur.



36.       When these two material facts relied upon by the

petitioners cannot be considered, the case of the petitioners becomes

quite weak. They have relied upon the school record of their father

and grand­father. The school record of the father at the time of

admission dt. 08.06.1956 shows his caste as Hindu­Thakur. While

the school record of the petitioners' grand­father Ambar on the date

of admission on 15.06.1935 shows the caste as Thakur. At both the
                               24                   WP7079.2009&Anr

places, it is now shown that the Thakur was a tribe. The petitioners'

father himself is a Government servant. The Government record has

not been produced to show that, he is shown as belonging to Thakur

tribe in the official record. It may be stated that, long back in 1933,

some benefits were conferred to certain tribes. The record nowhere

shows that the petitioners' father or grand­father have claimed any of

the benefits conferred to Thakur tribe. The information recorded at

the time of census of 1951 or thereafter could have been quite useful

to determine whether forefathers of the petitioners were of Thakur

tribe or not. Such record is not produced.



37.       The statement of the petitioners' father disclose that, he

and his father were residing in Dhule district only. His father was

residing at Shindkhea and later on they shifted to Dhule.          The

petitioners' mother is from Chimthane, Dist. Dhule.         The other

relatives of the petitioners were also residing at the places which are

not identified as locations of Scheduled Tribe ­ Thakur.         After

extensive research by the Government, 25 talukas from 5 districts

namely Nashik, Ahmednagar, Akola, Thane & Raigad were identified

as locations of Thakur­ST. It was argued that, after removal of area

restriction in 1976, it cannot be expected from the petitioners that

they should show that their relatives were residing in such locations
                               25                     WP7079.2009&Anr

and subsequently they were migrated. There are some judgments to

that effect. However, in full Bench judgments in Yogita Sonawane's

case (WP No. 6103/2010) decided on 15.09.2016 and Shilpa

Thakur's case (2009(3) Mh.L.J. 995) (and also in Deepika Subhash

More v/s. State of Maharashtra (WP No. 1953/2007) (DB) decided

on 22.03.2007), it has been held that it is relevant to see whether the

petitioners' forefathers were residing in such locations or not and

whether they have migrated thereafter. However it will be only one

of the circumstances and not decisive of the issue.



38.       Even Rule 3(2) of Form to be filled in provides for a

disclosure of original place from where the petitioner hailed.



39.       The characteristics of Scheduled Tribe are described in

para 37 of Shilpa Thakur's case, which are as follows.

          i)        Primitive traits;
          (ii)      Distinct culture;
          (iii)     Geographical isolation;
          (iv)      Distinct dialect;
          (v)       Animism;
          (vi)      Clan systems;
          (vii)     Shyness of nature; and
          (viii)    Backwardness.
                                  26                       WP7079.2009&Anr

40.         In Motilal Namdeo Pawar v Scheduled Tribe Scrutiny

Committee, Nashik (WP No. 07/2014), it is held that, in view of

the amendment, the area restriction is not applicable. In view of the

full Bench judgment, it is relevant but mere failure to lead evidence

on this point will not be fatal to the claim of the petitioners.



41.         We find that the petitioners did not lead any evidence on

this material aspect.



42.         As held in Anand's case, the Scrutiny Committee has to

consider the claim on broader prospective taking into consideration

all the facts and the cumulative effect thereof. In Madhuri Patil's

case (supra) it is observed that, the the Scheduled Tribes are

inhabitants of intractable terrain regions of the country kept away

from the mainstream of national life and with their traditional

moorings and customary beliefs and practices, they are largely

governed by their own customary code of conduct regulated from

time to time with their own rich cultural heritage, mode of worship

and cultural ethos. This view is somewhat diluted by following

observations in Anand's case.

      “A cautious approach has to be adopted while applying the
      affinity test, which focuses on ethnological connections with
      the   scheduled   tribe.   Affinity   test   could   serve   as   a
                                 27                   WP7079.2009&Anr

      determinative factor in the times when tribes were immune to
      cultural development happening around them. However, with
      the migrations, modernization 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. Thus this test cannot
      serve as a litmus test for establishing the link of applicant
      with a Scheduled tribe. It can be used to corroborate the
      documentary evidence, but should not be the sole criteria for
      rejecting a claim.”




43.        It is not in dispute that, the burden is on the petitioners to

prove that they belong to Thakur tribe to claim the benefits and

privileges of Scheduled Tribe. The petitioners relied on the validity

certificates of their siblings which cannot be relied upon. The

petitioners relied upon the school record which merely shows that

their father and grand­fathers were Hindu­Thakur without specifying

whether it was Thakur caste or Thakur­tribe. The service record of

the father of the petitioners is not produced. The area location does

not match with the locations identified as of Thakur Scheduled Tribe

in the past or present.     The affinity test discloses several factors

which indicate that father of the petitioners was not aware about the

basic traits of the Thakur­tribe.      He has stated that, they were

speaking impure Marathi and they were not knowing tribal language.
                               28                   WP7079.2009&Anr

Their marriages are arranged through a Brahmin. Their festivals are

also common to Hindu rather than to the Scheduled Tribe.           The

Scrutiny Committee has considered all these aspects and has held

that the affinity test and the report of Vigilance Officer does not

support the claim of the petitioners.



44.       While exercising the writ jurisdiction of this Court, we

cannot sit as an appellate Court.        We find that the Scrutiny

Committee has followed the due procedure and has considered all

material aspects.   The view taken by the Scrutiny Committee is

reasonable and is not arbitrary or perverse. We therefore find no

scope for interference with the said decision.



45.       In the result, the writ petitions deserve to be dismissed and

are accordingly dismissed. Rule is discharged. No order as to costs.




          [ A. M. DHAVALE ]              [ S. V. GANGAPURWALA ]
                JUDGE                             JUDGE




Punde