Bombay High Court
Krushna Kautik Deore vs Director Of Medical Education And ... on 22 January, 2021
Equivalent citations: AIRONLINE 2021 BOM 328
Author: Shrikant D. Kulkarni
Bench: S.V. Gangapurwala, Shrikant D. Kulkarni
56-wp-803-21 (Jt.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.803 OF 2021
Krushna S/o Kautik Deore
Age : 18 years, Occu.: Education,
R/o. Chalisgaon, Tq. Chalisgaon
Dist. Jalgaon ... Petitioner.
Versus
1. Director of Medical Education &
Research, CET Cell, Opp. Government
Dental College & Hospital Building
St. Geroge's Hospital Compound,
Near CST Railway Station,
Mumbai - 400 001.
2. The State Common Entrance Test Cell,
Maharashtra, Mumbai
8th Floor, New Excelsior Building,
A.K. Nayak Marg, Fort, Mumbai
Through its Commissioner &
Competent Authority.
3. Scheduled Tribe Certificate
Scrutiny Committee,
Nandurbar Division,
Nandurbar ... Respondents.
....
Mr. Mahesh S. Deshmukh, Advcocate for the Petitioner.
Mr. K.N. Lokhande, A.G.P. for Respondent Nos.1 and 3.
....
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
Closed for Judgment on : 18.01.2021
Judgment Pronounced on : 22.01.2021
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56-wp-803-21 (Jt.)
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JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-
1. Rule. Rule made returnable forthwith. With the consent of learned counsel for both the sides, heard finally at admission stage.
2. Feeling aggrieved by the impugned order passed by respondent No.3 / Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar (hereinafter referred to as the "committee") thereby invalidating caste claim of the petitioner as "Thakur" Scheduled Tribe, the petitioner has approached this Court by invoking writ jurisdiction under Article 226 of the Constitution of India.
3. The petitioner is studying in junior college. The Principal of the college referred the tribe claim of the petitioner to respondent No.3 / committee for verification of tribe certificate. The petitioner has produced sufficient evidence in the form of school record and birth record of grandparents including documents prior to pre-constitutional era. The vigilance was conducted. The petitioner has filed his say in response to the show cause notice issued by the committee. The petitioner is now exploring possibility to take admission in professional course. The tribe claim of the petitioner came to be invalidated by the impugned order.
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4. Mr. Deshmukh, learned counsel for the petitioner submitted that the petitioner has produced old record right from the year 1928 in order to establish that his family belongs to "Thakur" Scheduled Tribe. The genealogy is not disputed. The committee has discarded the old record and that too of the pre-independence era without assigning the reasons. Pandharinath Hari Patil happens to be grandfather of the petitioner and his scool record dated 23.03.1928 speaks entry "Thakur:
in the caste column. According to Mr. Deshmukh, the committee has discarded the old document by simply relying upon one entry of the petitioner's aunt wherein her caste is recorded as "Hindu Thakur" ( b-ek- OBC). He submitted that the findings recorded by the committee are erroneous. There is no contra entries to take doubt about the caste claim of the petitioner. The area restriction is removed even then the committee has considered that aspect and turn down the tribe claim of the petitioner. He submitted that the affinity test is not a litmus test.
To support his argument, Mr. Deshmukh has placed on record the decision of Apex Court in case of Anand Vs. Committee for Scrutiny and Verification of Tribe claim and ors. reported in (2012)1 SCC 113. He submitted that the committee has unnecessarily referred the record of other persons from Chalisgaon Taluka. The petitioner has no relation with them. He 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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5. Mr. Lokhande, learned A.G.P. for State / respondent Nos. 1 and 3 submitted that the committee has taken into consideration 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 her tribe claim as "Thakur" Scheduled Tribe. The findings recorded by the committee are well reasoned. Those are supported by various decisions of the Bombay High Court, which are referred by the committee. The decision rendered by the committee is not defective in the eye of law. The school record of the petitioner's aunt namely Akkabai Pandharinath Patil records her casts as "Hindu Tahkur ( b-ek- OBC) and the same is against the claim of the petitioner. He further invited our attention to the entry of school record of Narayan Pandharinath Thakur who happens to be uncle of the petitioner, wherein his caste is recorded as "Hindu Marathe Thakur" and Marathe has been scored. According to learned AGP, it is not a fit case to interfere with the decision of the committee.
6. We have considered the arguments advanced by the learned counsel for the petitioner and the learned A.G.P. 4 of 12 ::: Uploaded on - 22/01/2021 ::: Downloaded on - 08/02/2021 15:25:24 ::: 56-wp-803-21 (Jt.) 5
7. 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 :
(i) The petitioner has failed to prove his tribe claim on the basis of documentary evidence.
(ii) The petitioner is not entitled to take benefit of validity certificate issued to his blood relatives.
(iii) The petitioner has failed to prove the affinity test.
8. 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 and birth and death register extracts right from the year 1928, wherein the caste "Thakur" has been recorded.
The following documentary evidence was produced by the petitioner before the committee.
v- nLr,sotkpk izdkj nLr,sot/kkjdkps uko vtZnkj Tkkrhph ukasn Ukkasn.kh
Ø- ;kaP;k'kh fnukad
ukrs
1- 'kkys; iqjkok ia<jhukFk gjh ikVhy vktksck Bkdwj 23-03-1928
2- 'kkys; iqjkok Ukkjk;.k ia<jhukFk dkdk fganw ejkBs 01-07-1964
Bkdwj Bkdwj
eqG 'kkys; jft"Vj cqd ua- 2 e/khy 206 jft"Vj uacj ;kr tkr ikssVtkr jdkU;kr fgsnw ejkBs ,soth ejkBs 'kCnkyk dkV ek#u Bkdwj vls fygys vkgs- 3- 'kkys; iqjkok rkbZ ia<jhukFk Bkdwj vkR;k fganw Bkdwj 22-06-1970 4- 'kkys; iqjkok dkSrhd ia<jhukFk oMahy fgan wBkdwj 09-07-1974 ikVhy 5 of 12 ::: Uploaded on - 22/01/2021 ::: Downloaded on - 08/02/2021 15:25:24 ::: 56-wp-803-21 (Jt.) 6 5- 'kkys; iqjkok vDdkckbZ ia<jhukFk vkR;k fganw Bkdwj 12-07-1979 ikVhy b-ek 6- 'kkys; iqjkok xksj[kukFk ekf.kd nsojs pqyr fganw Bkdwj 28-06-1983 dkdk 'ks-Vªk-
7- 'kkys; iqjkok d§".kk dkSrhd nsojs vtZnkj fganw Bkdwj 16-06-2008
9. Having regard to the above referred documentary evidence, it is seen that the petitioner has produced documentary evidence pertaining to his real grandfather namely Pandharinath Hari Patil in the form of school record dated 23.03.1928, wherein his caste has been recorded as "Thakur". The school record of Tai Pandharinath Thakur, father Kautik Pandharinath Patil and cousin uncle Gorakhnath Manik Deore speak that their caste is recorded as "Hindu Thakur". There are only two entries, which appear to be hurdle of petitioner in getting tribe validity certificate. One entry is of his uncle Narayan Pandharinath Thakur. In his school record dated 01.07.1964 in caste column, "Hindu Marathe Thakur" is recorded and as per vigilance report, word "Marathe" has been scored and second entry is of petitioner's another aunt Akkabai Pandharinath Patil in the form of school record dated 12.07.1979, wherein his caste is recorded as Hindu Thakur ( b-ek- - OBC).
10. Hindu is a religion and not a caste. Therefore, the entry of 6 of 12 ::: Uploaded on - 22/01/2021 ::: Downloaded on - 08/02/2021 15:25:24 ::: 56-wp-803-21 (Jt.) 7 "Hindu Thakur" can not be said to be contra evidence. Old record of petitioner's grandfather clearly speaks entry of caste as "Thakur" in the caste column in the school record dated 23.03.1928. That document is of the pre-independence era. It has more probative value. There is no manipulation in the said entry dated 23.08.1928. Certainly, the old record of the year 1928 pertaining to the petitioner's grandfather needs to be accepted and relied upon in absence of any manipulation in the record. The caste claim of the petitioner can not be turn down only because of above said two entries, when the old record of the year 1928 i.e. of pre-independence era clearly established the caste of the petitioners family as "Thakur" Scheduled Tribe. Barring the above said one entry, there is no manipulation in the said record. The committee has completely overlooked the importance of document of pre- independence era and invalidated the tribe claim of he petitioner. The committee has unnecessarily referred the entries of caste as Hindu Kshatriya, Hindu Rajput, Hindu Brahmkshatriya etc. from Chalisgaon Taluka, which according to us unnecessary exercise of the committee. The petitioner has no relation with them. The genealogy given by the petitioner is not disputed and in that background above said exercise made by the committee referring the entries of other persons, wherein the caste is recorded as Hindu Rajput, Hindu Kshatriya, Hindu Brahmkshatriya, not necessary.
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11. 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 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.
12. There is no validity certificate issued in the family of the petitioner, and as such, no question arises to extend the benefit of validity certificate to the petitioner that finding recorded by the committee appears to be proper.
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13. 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, which read thus:-
"The genuineness of a caste claim has to be considered not only on a thorough examination of the documents submitted in support of the claim but also on the affinity test, which would include the anthropological and ethnological traits, etc. of the applicant. However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim. Nevertheless, the following broad parameters could be kept in view while dealing with a caste claim:
(i) While dealing with documentary evidence, greater reliance may be placed on pre-independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-
independence documents. In case the applicant is the first 9 of 12 ::: Uploaded on - 22/01/2021 ::: Downloaded on - 08/02/2021 15:25:24 ::: 56-wp-803-21 (Jt.) 10 generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact, the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant.
(ii) While applying the affinity test, which focuses on the ethnological connections with the Scheduled Tribe, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor. However, with the migrations, modernisation 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. Hence, the affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a Scheduled Tribe and is entitled to the benefit extended to that Tribe, cannot per se be disregarded on the ground that his present traits do not match his tribe's peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies, etc. Thus, the affinity test may be 10 of 12 ::: Uploaded on - 22/01/2021 ::: Downloaded on - 08/02/2021 15:25:24 ::: 56-wp-803-21 (Jt.) 11 used to corroborate the documentary evidence and should not be the sole criteria to reject a claim. Burden to prove lies upon applicant - In case material produced by applicant does not prove his claim, Committee cannot gather evidence on its own to prove or disprove his claim."
14. On careful scrutiny of the documentary evidence produced by the petitioner right from the pre-independence era i.e. right from the years 1928, make out a clear picture that the caste of the family of the petitioner is recorded as "Thakur". The document of pre-independence era is found genuine. The committee has given unnecessary weightage to the report submitted by the Research officer.
15. In view of the above, the findings recorded by the committee are found erroneous. The committee has not properly appreciated the documents of the pre-independence era and arrived at incorrect conclusion. The impugned order passed by the committee invalidating tribe claim of the petitioner needs to be quashed and set aside. He is entitled to get the tribe validity certificate. With these reasons, we conclude and proceed to pass the following order.
ORDER
(i) The order / decision rendered by respondent No.3 / Scrutiny Committee, Nandurbar dated 04.12.2020 is hereby quashed and set aside.
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(ii) Respondent No.3 / Scrutiny Committee, Nandurbar shall issue validity certificate to the petitioner of being a member of "Thakur Scheduled Tribe" forthwith.
(iii) Rule is made absolute accordingly.
(iv) The writ petition is disposed of. No order as to costs.
( SHRIKANT D. KULKARNI ) ( S.V. GANGAPURWALA )
JUDGE JUDGE
S.P. Rane
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