Bombay High Court
Aishwarya Ganesh Thakur vs Director Of Medical Education And ... on 18 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 2837
Author: Shrikant D. Kulkarni
Bench: S.V. Gangapurwala, Shrikant D. Kulkarni
89-wp-8138-20 (Jt.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8138 OF 2020
Aishwarya D/o Ganesh Thakur
Age : 22 years, Occu.: Education,
R/o. Jalgaon, Tq. & Dist. Jalgaon ... Petitioner.
Versus
1. Director of Medical Education & Research,
CET Cell, Opp. Government Dental
College & Hospital Building, St. George's
Hospital Compound, Near CST Railway
Station, Mumbai - 400 001.
2. State Common Entrance Test Cell,
Maharashtra Mumbai
8th Floor, New Excelsior,
A.K. Nayak Marg, Fort, Mumbai
Through its Commissioner &
Competent Authority
3. Scheduled Tribe Certificate Scrutiny
Committee, Nandurbar Division
Nandurbar
4. Government Medical College,
Jalgaon, Tq. & Dist. Jalgaon. ... Respondents.
....
Mr. Mahesh S. Deshmukh, Advcocate for the Petitioner.
Mr. S.P. Tiwari, A.G.P. for Respondent Nos.1, 3 and 4.
Mr. M.D. Narwadkar, Advocate for Respondent No.2
....
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
Closed for Judgment on : 14.12.2020
Judgment Pronounced on : 18.12.2020
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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 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 belonging to "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 a student and exploring possibility to take admission in health services. As per letter dated 16.11.2020, CET Cell has allotted Government Medical College, Jalgaon for MBBS course.
4. According to the petitioner, she belongs to "Thakur" Scheduled Tribe and she has received tribe certificate from Sub Divisional Officer, Bhusawal, Dist. Jalgaon. The proposal was submitted for verification of the tribe claim to the committee. The vigilance enquiry was conducted. The petitioner has produced sufficient documentary evidence including certain documents of pre-independence era supporting to her claim of "Thakur" Scheduled Tribe. The committee has invalidated her tribe claim by impugned order dated 28.11.2020. The impugned order is 2 of 13 ::: Uploaded on - 18/12/2020 ::: Downloaded on - 19/12/2020 08:06:03 ::: 89-wp-8138-20 (Jt.) 3 bad in law. The committee has overlooked old documents, which have more probative value. The reasons assigned by the committee while invalidating the claim of the petitioner are incorrect in view of the decisions of the Hon'ble Supreme Court and the Bombay High Court.
5. Heard Mr. M.S. Deshmukh, learned counsel for the petitioner, Mr. S.P. Tiwari, the learned A.G.P. for respondent Nos.1, 3 and 4 and Mr. M.D. Narwadkar, the learned counsel for respondent No.2.
6. Perused the impugned order passed by the committee, vigilance report, letter addressed to A.G.P. High Court, Bench at Aurangabad dated 14.12.2020 by the committee and other papers.
7. Mr. Deshmukh, the learned counsel for the petitioner vehemently submitted that the petitioner has produced old school record right from the year 1926, which speaks the entry of "Thakur" Scheduled Tribe. The committee has discarded those documents of pre- independence era without assigning sufficient reasons. The findings recorded by the committee are contrary to the decisions of the Hon'ble Supreme Court and the Bombay High Court. The area restriction is removed even then the committee has considered that aspect and turn down the tribe claim of the petitioner. He further invited our attention to the findings recorded by the committee and submitted that the 3 of 13 ::: Uploaded on - 18/12/2020 ::: Downloaded on - 19/12/2020 08:06:03 ::: 89-wp-8138-20 (Jt.) 4 committee has observed that forefathers of petitioner were in the main stream and they were well educated and as such they can not fall in the definition of tribe. He submitted that observations made by the committee are erroneous and contrary to the decisions of the Bombay High Court. He submitted that the affinity test is a corroborative test, and as such, reliance placed by the committee on the decisions in the case of Deepika Subhash More (Writ Petition No.1953 of 2007 dated 22.03.2007 at Principal seat Bombay) and Sagar Ravindra Suryawanshi (Writ Petition No.4965 of 2014 dated 27.02.2019 of Bombay High Court, Bench Aurangabad) are misplaced. The facts in the case of Yash Sanjay Marathe ( Writ Petition No.8567 of 2018 dated 07.10.2019 of Bombay High Court, Nagpur Bench) are also different and can not be applied in the present case.
8. He submitted that though the validity of relatives from maternal side are relied upon, can not be a ground to discard the same. He submitted that in view of the citation in the case of Anand Vs. Committee for Scrutiny and Verification of Tribe claim and ors. reported in (2012)1 SCC 113, the affinity test is not a litmus test and more probative value is attached to pre-constitutional document. In the present case, the petitioner has produced consistent entries as "Thakur" Scheduled Tribe from the year 1926. He submitted that the 4 of 13 ::: Uploaded on - 18/12/2020 ::: Downloaded on - 19/12/2020 08:06:03 ::: 89-wp-8138-20 (Jt.) 5 impugned order passed by the committee is bad in law. The findings are erroneous and therefore the impugned order needs to be quashed and set aside.
9. Mr. Tiwari, the learned A.G.P. for respondent Nos.1, 3 and 4 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 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. It is not a fit case to interfere in the decision of the committee.
10. Mr. Narwadkar, the learned counsel for respondent No.2 supported to the stand taken by the learned A.G.P.
11. We have considered the arguments advanced by the learned counsel for both the sides.
12. On perusing the impugned order passed by the committee, it is found that the committee has invalidated the claim of the petitioner on the following three issues :
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(i) The petitioner has failed to prove her tribe claim by way of documentary evidence.
(ii) The petitioner is not entitled to take benefit of validity certificates issued to her relatives.
(iii) The petitioner has failed to prove the affinity test.
13. On making scrutiny of the impugned order, vigilance report and other papers, it is found that the petitioner has placed on record the documentary evidence in the form of school record, and birth and death register entries from the year 1926 to 2004, 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 Ukkasn.kh
Ø- ;kaP;k'kh ukrs ukasn fnukad
1- Xkkao uequk ua- 14 ds'ko ukenso lnq pqyr Bkdwj 25-11-1926
vktksck
2- 'kkGk lksMY;kpk vkuank lnq Bkdqj pqyr iatksck Bkdwj 01-06-1929
nk[kyk
3- xkao uequk ua- 14 ¼eqyxk½ 'kkek nkeq pqyr Bkdwj tUe fnukad
lnq vktksck 04-06-1933
4- 'kkGk lksMY;kpk nk[kyk Rkqdkjke ukenso pqyr pqyr fganw Bkdwj 08-07-1947
lq;Zoa'kh vktksck
5- 'kkGk lksMY;kpk nk[kyk ikaMqjax nkeq Bkdwj pqyr fganw Bkdwj 20-10-1947
vktksck
6- e`R;w iwjkok nkeq lnq iatksck Bkdwj e`R;w fnukad
14-04-1949
7- 'kkGk lksMY;kpk nk[kyk x.ks'k foðy lq;Zoa'kh ofMy fganw Bkdwj 16-07-1968
8- 'kkGk lksMY;kpk nk[kyk ,s'o;kZ x.ks'k Bkdwj vtZnkj fganw Bkdwj 03-06-2004
¼,l-Vh-½
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14. Having regard to the above referred documentary evidence, it is seen that the petitioner has produced documentary evidence pertaining to her cousin grandfather namely Keshav Namdev Sadu in the form of Gaon Namuna No.14 dated 25.11.1926 showing the entry of "Thakur". The petitioner has also produced the school leaving certificate of her cousin great-grandfather namely Ananda Sadu Thakur dated 01.06.1929, wherein his caste has been recorded as "Thakur". Another documentary evidence in the form of Gaon Namuna No.14 dated 04.06.1933 pertaining to petitioner's another cousin grandfather namely Shama Damu Sadu also shows his caste as "Thakur". The school leaving certificate of petitioner's second degree cousin grandfather namely Tukaram Namdeo Suryawanshi also speaks caste entry as "Hindu Thakur" and the same is the case of cousin grandfather namely Pandurang Damu Thakur, wherein his caste has been recorded as "Hindu Thakur" dated 20.10.1947.
15. Therefore, it is clear that the petitioner has produced four documents referred above, which are of pre-independence era, wherein the entry of the caste as "Thakur" is recorded. It is important to note that the vigilance is conducted in respect of above said documentary evidence and during the enquiry, no contra evidence was found. There is no documentary evidence collected by the vigilance officer to 7 of 13 ::: Uploaded on - 18/12/2020 ::: Downloaded on - 19/12/2020 08:06:03 ::: 89-wp-8138-20 (Jt.) 8 disbelieve the documentary evidence placed on record by the petitioner in support of her tribe claim. There is no justifiable reason to discard the documents of the pre-independence era in absence of any contra evidence. The documentary evidence of the pre-independence era has more probative and it needs to be believed when there are no contra entries on record. The committee has completely overlooked this aspect and invalidated the tribe claim of the petitioner. The committee has unnecessarily referred the entries of caste as Kshatriya, Nagvanshi Brahmabhat, Bhat by placing reliance on the earlier record available with the committee pertaining to other Taluka places, which according to us unnecessary exercise of the committee.
16. The committee has assigned one more reason while invalidating the claim of the petitioner relating to education of the family members right from the year 1929. It is observed by the committee that the great-grandfather, cousin grandfather and father of the petitioner were in the main stream right from the year 1929 and they had taken education and they were not migrated from the hilly area. That observations made by the committee are 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 8 of 13 ::: Uploaded on - 18/12/2020 ::: Downloaded on - 19/12/2020 08:06:03 ::: 89-wp-8138-20 (Jt.) 9 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 is certainly erroneous.
17. The committee has recorded negative finding on the issue of giving benefit to the petitioner on the basis of validity certificate issued to her relatives namely Santosh Ratan Bagul and Shubham Santosh Bagul. It is observed by the committee that the above said family members are not blood relatives. They happen to be relatives by way of marriage relation. The observations made by the committee to that effect appear to be not erroneous.
18. 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 9 of 13 ::: Uploaded on - 18/12/2020 ::: Downloaded on - 19/12/2020 08:06:03 ::: 89-wp-8138-20 (Jt.) 10 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 Vs. Committee for Scrutiny and Verification of Tribe claim and ors. reported in (2012)1 SCC 113, 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 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 10 of 13 ::: Uploaded on - 18/12/2020 ::: Downloaded on - 19/12/2020 08:06:03 ::: 89-wp-8138-20 (Jt.) 11 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 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."
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19. On careful scrutiny of the documentary evidence produced by the petitioner right from the pre-independence era i.e. right from the year 1929 make out a clear picture that the caste of the family of the petitioner is recorded as "Thakur" since the year 1929. No contra entries are found during the vigilance enquiry. No documentary evidence is collected to disbelieve the school record produced by the petitioner. The committee seems to have given unnecessary weightage to the report submitted by the Research officer. The area restriction is not hurdle in the way of the petitioner in getting the tribe validity claim in view of the amended Act, 1976.
20. In view of the above, the findings recorded by the committee are found erroneous. The committee has not properly considered the documents of the pre-independence era and arrived at wrong conclusion. There are no contra entries to throw away the tribe claim of the petitioner. The vigilance report also nowhere speaks about contra evidence. The impugned order rendered by the committee invalidating tribe claim of the petitioner needs to be quashed and set aside. The petitioner is entitled to get the tribe validity certificate. With these reasons, we conclude and proceed to pass the following order.
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(i) The order / decision rendered by respondent No.3 / Scrutiny Committee, Nandurbar dated 28.11.2020 is hereby quashed and set aside.
(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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