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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7813 OF 2009
Dattu s/o Namdev Thakur
Age: Yrs., occu. Service at
Present working as Kendra Pramukh
Kendriya Primary School,
R/o At post Pimpri (kh)
Tq. Dharangaon, Dist.Jalgaon. - PETITIONER
VERSUS
1) The State of Maharashtra
Through its Secretary
Department of Tribal
Development, Mantralaya,
Mumbai.
2) Scheduled Tribe Certificate
Scrutiny Committee,
Nandurbar, Through
Member Secretary.
3) The Chief Executive Officer
Zilla Parishad, Jalgaon.
4) The Education Officer(Primary)
Zilla Parishad, Jalgaon.
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5) The Executive Magistrate
Yawal, Tq. Yawal,
District Jalgaon. - RESPONDENTS
___
WRIT PETITION NO.8048 OF 2009
Amol s/o Dattu Thakur
Age: 20 Yrs., occu. Student,
R/o At Post Pimpri (Kh)
Tq. Dharangaon, Dist.Jalgaon. - PETITIONER
VERSUS
1) The State of Maharashtra
Through its Secretary
Department of Tribal
Development, Mantralaya,
Mumbai.
2) Scheduled Tribe Certificate
Scrutiny Committee,
Nandurbar, Through
Member Secretary.
3) The Chairman
Pravesh Niyamak Committee,
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Aliyawar Jung Marg,
Polytechnic Building,
Bandra (E), Mumbai-51.
4) The Principal,
Seth Govind Raghunath
Sable College of Pharmacy,
Saswad, Tq. Purandar,
District Pune.
5)
The Registrar,
Poona University, Pune.
6) The Sub Divisional Officer,
Sub-Division office,
Bhusawal, Dist. Jalgaon. - RESPONDENTS
___
WRIT PETITION NO. 7289 OF 2009.
Kum.Pratibha d/o Dattu Thakur
Age: 24 Yrs., occu. nil,
R/o At Post Pimpri (Kh)
Tq. Dharangaon, Dist.Jalgaon. - PETITIONER
VERSUS
1) The State of Maharashtra
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Through its Secretary
Department of Tribal
Development, Mantralaya,
Mumbai.
2) Scheduled Tribe Certificate
Scrutiny Committee,
Nandurbar, Through
Member Secretary.
3)
Under Secretary,
Maharashtra Public Service
Commission, Bank of India
Bldg., 3rd floor,
Mahatma Gandhi Road,
Hutatma Chowk,
Mumbai - 4000 001.
4) The Principal,
Sane Guruji Vidya Probodhini
Sarva Samaveshak Shikshan
Shastra Mahavidyalaya, Khiroda,
Tq. Raver, Dist. Jalgaon.
5) The Registrar,
North Maharashtra University,
Jalgaon.
6) The Sub Divisional Officer,
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Sub-Division office,
Bhusawal, Dist. Jalgaon. - RESPONDENTS
*****
Mr.MK Deshpande,Advocate for Petitioners;
Mr.SK Tambe,AGP for State;
Mr.US Malte, Advocate for Resp.No.2-Committee
Mr.MS Sonawane, Advocate for Respondent Nos. 3 &
4 (in WP7813/09)
ig -----
CORAM : NARESH H. PATIL &
K.U.CHANDIWAL, JJ.
DATE : 14th December, 2009.
JUDGMENT (PER: K.U.CHANDIWAL,J.)
1) Rule. Rule made returnable forthwith. By
consent of parties heard finally.
2) Since the issue involved in these writ
petition is identical, therefore, these petitions
are being heard and disposed of by this common
judgment.
3) The petitioners claim to be
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`Thakur’ (scheduled tribe). Their caste
certificates issued by the competent authorities
on 7.6.2001 were invalidated by the Caste
Scrutiny Committee by order dated 4.9.2009 and
dated 24.9.2009 respectively and the same is
assailed in writ jurisdiction under Articles 226
and 227 of the Constitution of India.
4)
The petitioner – Dattu has studied
initially up to Xth Std. and during the course of
his employment, he has completed B.A.B.Ed.
course. He joined as primary teacher on
15.3.1994 and was promoted time to time. The
petitioner had a certificate dated 1.7.1981
issued by the Executive Magistrate, Yawal,
certifying that the petitioner is scheduled tribe
`Thakur’. The said certificate was subjected by
the Block Development Officer for its validation
on 22nd October, 2003. However, since the Caste
Scrutiny Committee did not decide it in time, the
petitioner with his son and daughter had
approached this Court in Writ Petition No.
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1270/2006 and the Division Bench of this Court
disposed of the same with directions to decide
the caste claim of the petitioner within four
months from 17.4.2006 in accordance with law.
5) The petitioners – Amol s/o Dattu Thakur
and Kum.Pratibha d/o Dattu Thakur, while they
were studying in XIth Std., their caste
certificates were forwarded to the Caste Scrutiny
Committee for validation purpose.
6) Petitioner – Amol and Kum.Pratibha were
born on 10.01.1989 and 23.4.1986 respectively and
they received the Caste Certificates from the
Competent Authority on 7.6.2001.
7) Vigilance Cell report was called, which
was verified by the petitioner – Dattu. Since
simultaneously the scrutiny and inquiry in
respect of the petitioners – Amol and
Kum.Prathibha was conducted on 23rd January, 2009,
the Vigilance Officer had submitted the report on
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3rd of April, 2008.
8) Mr.Deshpande, learned Counsel appearing
for the petitioners contended that the Caste
Scrutiny Committee failed to appreciate the
documents in proper perspective. The Order of
the Committee is against the law, justice and
equity. The Committee has erred in appreciating
the School Leaving Certificate of Namdeo Bandu
Thakur of 1928, who, is father of the petitioner
– Dattu and grand-father of petitioners – Amol
and Kum.Pratibha, which disclose that he belonged
to Thakur caste.
9) The learned Counsel for the petitioners
relied upon the Judgment in the matter of Shilpa
Vishnu Thakur Vs. State of Maharashtra and Ors. –
2009 (3) Mh.L.J. 995 (Full Bench) and also to the
Judgment in the matter of Pandurang Rangnath
Chavan Vs. State of Maharashtra and Ors. – 1998
(2) Mh.L.J. 806.
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10) We have verified the original record in
respect of the petitioners produced by Shri
Malte, learned Counsel appearing for the Scrutiny
Committee.
11) We have perused the Judgments cited
(supra). In the Full Bench Judgment, it is
observed as under :
“The nature of the inquiry in regard
to the claim of a candidate tobelong to a Scheduled Tribe is not
merely to be confined to an
examination of the birth and theschool records and of documentary
evidence but would involve an
investigation of the affinity of the
candidate with a tribe, or as thecase may be, tribal community. Thus,
the process of verification of caste
claims which came to be governed bythe Judgment of the Supreme Court in
Madhuri Patil involved an inquiry
not merely into the documentary
materials on the basis of which the
caste claim is founded but equally a
verification of the claim with
reference to the affinity of the::: Downloaded on – 09/06/2013 15:24:46 :::
10candidate with a designated
Scheduled Tribe. The inquiry would
comprehend within its purviewanthropological and ethnological
traits. The Committee would be
entitled to inquire into thequestion as to whether the applicant
has established an affinity with the
tribe. The yardstick for determiningsuch affinity includes the rituals
of the tribe and its customs,
worships, ceremonies associated withbirth, marriage and death and the
conventions followed for the
disposal of dead bodies. Rightthrough the ages, int he evolution
of the human race, birth, marriageand death have been considered to be
milestones around which customs andrituals of communities have grown.
Worship is an integral aspect of the
life of a community and tribal
communities are identifiable with
reference to specific modes of
worship. The affinity test which
comprehends all these aspects is,
therefore, not extraneous to the
process of identifying whether the
applicant is a genuine member of a
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tribe or is an imposter fraudulently
claiming the benefits of a
reservation to which he is not
entitled.”
It is also observed in para 35 as
under :
“35. We have adverted to the
judgments of the Division Benches of
this Court in order to emphasize that
the line of reasoning that has beenfollowed is that before an applicant
can be validly regarded as being
eligible to receive the benefitsattached to being a member of a
Scheduled Tribe, the burden lies onthe applicant to establish membership
of the tribe. An inquiry intowhether the applicant belongs to a
Scheduled Tribe is not precluded by
the Presidential Order or by the
Judgments of the Supreme Court inPalghat Jilla Thandan and Milind
Katware. For the purposes of
determining as to whether an
applicant belongs to a Scheduled
Tribe, the Scrutiny Committee has to
be satisfied on the basis of all the::: Downloaded on – 09/06/2013 15:24:46 :::
12available material on the record that
such is the position. The material on
the record would include documentaryevidence and oral evidence and
comprehend the application of the
affinity test.”
12) In para 40(ii)(a) and (c), the Full
Bench observed thus:
“40.(i)……………………….
(ii)(a)The mere fact that the
documents produced by a personreflect his surname as being
synonymous with the name of a
designated tribe, is not sufficientto 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. Allowing claims
merely on the basis of an overlap
between the surname of the person as
reflected in the documents produced
and the name of a designated tribe
may result in a grave miscarriage of
justice and lead to the grant of
benefits to persons who are not
genuinely members of a designated
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tribe. In Order to determine,
whether a person genuinely belongs
to a designated Scheduled Tribe, the
Scrutiny Committee must have regard
to the entire body of evidence
including on the question as to
whether the applicant has satisfied
the affinity test.
(b)……………………………
(c) Where a person has some
document, in his or her favour
and/or partially satisfies the
crucial affinity test, the question
as to whether certification should
be granted would depend upon the
overall view which is formed by the
Competent Authority in the first
instance and by the Scrutiny
Committee subsequently on the
preponderating weight of the e
evidence. The nature of the
documents that have been produced,
the genuineness and authenticity of
the documentary evidence and the
weight to be ascribed to the
documents produced, are matters
which must be decided by the
authority concerned. If a candidate
has satisfied the crucial affinity
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test in part, it is for the
Competent Authority and the Scrutiny
Committee to determine in each case
as to whether, on considering the
entire material on the record, the
caste claim is correct and genuine.
An answer in the abstract cannot be
furnished. it is for the quasi-
judicial authority in each case to
arrive at its finding on the basis
of the material on the record.”
13) Before adverting to the petitioners’
claim to be belonging to Thakur tribe, a
Scheduled Tribe having entry at Serial No. 44 in
the List of Scheduled Tribe, we shall have to
consider that term `Thakur’ has reference even at
Serial No.22 in the List of Nomadic Tribe as
Thakur/Thakar. These persons lead nomadic way of
life, move from village to village. Even Thakur
is seen in Kshatriya, Rajput and various other
communities in the region.
14) In the light of this situation and as
the Full Bench has observed, merely stating that
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in the School record caste is written as `Thakur’
by itself will not be sufficient to accept the
same, to be in the category of scheduled tribes.
For this purpose, the candidate has to satisfy
the various rigid tests of traits,
characteristics and customs for indicating his
association to Thakur, Scheduled Tribes.
15)
The Thakur community, belonging to
Scheduled Tribe, indeed was restricted to 25
tehsils of five districts, i.e. Ahmednagar,
Kolaba, Nasik, Pune and Thane of State of
Maharashtra. However, the said area restriction,
which was in operation from 1.11.1956 to
26.7.1977 is no more in force. The consequence
flowing from such removal of area restriction by
itself would not allow a person to stake claim to
be belonging to Thakur, Scheduled Tribe, unless
such person established that his forefathers have
migrated from hilly area/tribal area or that they
form group of triblals in the particular area.
This requirement has been necessitated as Thakur
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is referred universally for recognition of
various castes, and need not be restricted to
Thakur, as scheduled tribe. In the light of this
situation, needless to add, mere reference of
caste as Thakur in the caste column in any school
record by itself should not be a sole criterion
to define a person to be belonging to Thakur,
scheduled tribe.
16) The petitioner – Dattu has tendered
School record of his father Namdeo Bandu Thakur
of the year 1928, which showed that he belongs to
Thakur caste. The contention that it has the
presumptive value by itself is difficult to
adhere upon. The Committee find that father’s
record did not elaborate that Thakur reference
is of scheduled tribe. The Committee has
referred, the Government of Bombay, vide
Government Resolution in General Department No.
9330 dated 29th May, 1933, classified the Backward
Classes and list of Backward Classes was
scheduled to the said Government Resolution. So
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far as Tribal Communities are concerned, the list
was scheduled in Schedule-II under the head
`Aboriginal and Hill Tribes’ and at Sr.No. 26,
Thakur Tribe was scheduled. The Committee
observed ” Had the petitioner – Dattu’s father
originally belongs to Thakur Tribe, his caste as
Thakur tribe would have been mentioned in his
school record. In the school record, there is no
reference whatsoever which indicates that the
father of the petitioner – Dattu belonged to
Thakur Tribe community.” We subscribe to the
observations of the Committee on this score. It
is pertinent, that the School Leaving Certificate
of petitioner – Dattu’s father Namdeo was issued
by Head Master, Zilla Parishad Marathi Mulanchi
Shala, Bamnod, Tq. Yawal, District Jalgaon
bearing Registration No. 164 Book No. 12, dated
16.3.1998, where the caste is mentioned as
Thakur.
17) The petitioner – Dattu also tendered a
School Leaving Certificate of his younger brother
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– Gajanan Namdeo Thakur, in which the caste
Hindu (____) (OBC) is mentioned. This document
indeed could not have been coined by the
petitioner – Dattu or for his son petitioner –
Amol or daughter petitioner – Kum.Pratibha, to be
decisive document to accept Thakur as scheduled
tribe.
18)
In the School record of petitioner –
Dattu and his younger brother Gajanan, the
Vigilance Cell found, no specific caste is
mentioned, but their category is mentioned as
Hindu _____ (OBC). In the School record of
petitioner – Dattu’s elder sister Janabai, he
caste is found to have been recorded as Hindu
Thakur. The views taken by the Committee,
negativing the caste claim, based on the
documentation, being a fact finding aspect, do
not appear to be arbitrary, erroneous or
activated with any influence of error of record.
19) The Committee had also verified the
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caste certificates of Dattu’s elder brother,
cousin uncle and son Amol and daughter
Kum.Pratibha respectively.
20) One should not be oblivious, the caste
claim of petitioner – Amol and his sister,
petitioner – Kum.Pratibha, are subject to
scrutiny and are negatived, which is subject of
the present writ petitions, cannot be branded to
be a best document.
21) The Committee found that petitioner –
Dattu or for that purpose petitioner – Amol or
Kum.Pratibha, could not prove socio cultural
affinity and ethnic linkage towards Thakur,
scheduled tribe, appeared at Serial No. 44 in the
list of Scheduled Tribes of Maharashtra.
22) The Maharashtra Scheduled Castes,
Scheduled Tribes, De-Notified Tribes, (Vimukta
Jatis), Nomadic Tribes, Other Backward Classes
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and Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate
Act, 2000, contemplate burden to prove, that the
person belongs to such caste, tribe or class,
shall be on such claimant/applicant. In this
scenario of the matter, it is difficult to only
criticize the approach of the Caste Scrutiny
Committee and allow the petitioners herein to sit
with folded hands and criticize the action. The
action desires that the petitioners have to
discharge their burden to establish their
particular caste.
23) Rule 4 of The Maharashtra Scheduled
Tribes (Regulation of Issuance and Verification
of) Certificate Rules, 2003, illustrate the
procedure to be followed by the Competent
Authority while grant of certificate or rejection
of application for scheduled tribe certificate.
This empowers the Competent Authority to hold an
inquiry and to gather the material for
ascertaining the foundation of the claim.
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24) Mr.Malte, learned Counsel appearing for
the Caste Scrutiny Committee has referred to the
orders in Writ Petition No.1953/2007 ( Deepika
Subhash More Vs. State of Maharashtra); reported
judgment of the Apex Court in the matter of
Lillykutty Vs. Scrutiny Committee, SC & ST and
Ors. – (2005) 8 SCC 283; order in Writ Petition
No. 2175/2008 ( Kum.Seema S. Bhadekar Vs. State
of Maharashtra); order in Writ Petition No. 2320
of 2006 ( Babarao s/o Manikrao Padalwar Vs. The
State of Mah. and Ors.); Judgment of the Apex
Court in the matter of Raju Ramsingh Vasave Vs.
Mahesh Deorao Bhivapurkar and Ors. -2009 (1)
Mh.L.1; Judgment in Writ Petition No. 657/1997
(Pandurang Hanmantrao Yesardekar Vs. State of
Maharashtra and Ors.)
25) So far as the caste claim of petitioner
Amol is concerned, the documents tendered before
the Committee for scrutiny are more or less
identical to those of his father – Dattu (i.e.
petitioner in WP No.7813/2009). In addition, we
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also find that the School Leaving Certificate of
Chhabi Namdeo Thakur and Janabai Namdeo Thakur
(i.e. aunts of petitioner – Amol), were tendered,
which showed that Aunts of petitioner – Amol
belonged to Hindu Thakur as per their school
record. The Certificate of Validity of Vinod
Vasantrao Suryawanshi issued by the Scrutiny
Committee dated 24.3.2000 will not be a criterion
to be acted upon in respect of caste claim of
petitioner – Amol and the same is on different
pedestal.
26) The Committee has found that the
documents tendered by the petitioners do not
conform to the claim and correctness of the
scheduled tribe. A mere fact that documents
produced by the petitioners or petitioner –
Dattu’s father Namdeo, referred as Thakur or
surname is referred as Thakur synonymous to the
caste Thakur, is not sufficient to establish that
petitioners belong to a scheduled tribe. It was
requirement for the petitioners to demonstrate to
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be a member of the tribe. The Committee
evaluated the documents and traits and
characteristics, the answers given by the
petitioners and the Committee did not approve
that they meet requirement to satisfy, to be
belonging to Thakur (scheduled tribe).
27) Taking survey of all the facts and
considering the documents placed on record, we do
not find any infirmity, irregularity in the
orders passed by the Caste Scrutiny Committee in
rejecting the caste claims of the petitioners.
Writ Petition dismissed. Rule discharged.
sd/- sd/-
(K.U.CHANDIWAL) (NARESH H. PATIL)
JUDGE JUDGE
bdv/wp7813.09
fldr.11.12.09
Authentic copy
(BD VADNERE,PS)
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