Bombay High Court
Sujit Suresh Gangavane vs State Of Maharashtra And Ors on 1 March, 2018
Author: Bharati H. Dangre
Bench: B.R. Gavai, Bharati H. Dangre
905-WP-4299-2008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4299 OF 2008
WITH
CIVIL APPLICATION NO.711 OF 2017
Sujit Suresh Gangavane ...Petitioner
Versus
State of Maharashtra & Ors. ...Respondents
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Mr.R.K. Mendadkar a/w Mr.C.K. Bhangoji, Ms.Komal Gaikwad and
Ms.Priyanka Shaw for the Petitioner.
Mr.S.B. Kalel, AGP for Respondent No.1 to 5.
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CORAM : B.R. GAVAI &
SMT.BHARATI H. DANGRE, JJ.
DATE : 1st MARCH 2018
ORAL JUDGMENT (Per. Smt.Bharati H. Dangre,J)
1. Rule. Rule made returnable forthwith.
2. Heard by consent.
3. The present petition is third round of litigation of the petitioner, in relation to validation of his claim as belonging to "Thakar", Scheduled Tribe which find place at Entry No.44 of the Scheduled Tribe Order 1950.
The petitioner, a resident of Sindhudurg District, obtained a Caste Certificate on 01st June 2001 as belonging to Caste N.S. Kamble page 1 of 10 ::: Uploaded on - 21/04/2018 ::: Downloaded on - 21/05/2018 07:56:01 ::: 905-WP-4299-2008 "Thakar". He was appointed to the post of Shikshan Sevak in New English School Devbaug. On his appointment, the claim of the petitioner came to be referred to the Committee for verification. The Scheduled Tribe Caste Scrutiny Committee, Konkan Division, Thane, rejected the claim of the petitioner along with 200 other candidates by an order dated 11th June 2006, on the ground that the petitioner/candidates before the Committee were not able to prove their claim as belonging to 'Thakar', Scheduled Tribe.
4. Being aggrieved, the petitioner filed petition before this Court which resulted into an order of remand, on a detailed consideration of the issue in hand by a judgment delivered by this Court on 14th September 2004 in the case of Amol Narayan Wakkar Vs. State of Maharashtra & Ors. Reported in 2005(1) Mh.L.J. 798. This Court held that the petitioners established that they belong to "Thakar" community but the Committee on erroneous assumption proceeded to hold that 'Thakars' from erstwhile Ratnagiri District are distinct from then 'Thakar', Scheduled Tribe as found in Entry No.44 of the Scheduled Tribe Order. The Court also held that tribe 'Thakar' throughout the State has to be treated as community 'Thakar'.
N.S. Kamble page 2 of 10
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5. In the second round of litigation, the claim of the petitioner was taken for scrutiny and by order dated 28 th February 2017, the claim again came to be rejected, reiterating the earlier view taken by the committee that caste 'Thakar' is distinct from tribe 'Thakar' and the claim of the petitioner cannot be validated merely relying upon documentary evidence and will have to be decided by taking into consideration the peculiar traits, customs characteristics of "Thakar", Scheduled Tribe.
6. On Writ Petition being filed assailing the said order passed by the committee, Division Bench of this Court in Writ Petition No.2491 of 2007, by order dated 25 th April 2007 was pleased to remand the matter again for fresh consideration by specifically directing the committee to go into affinity issue.
On remand of the matter, the respondent No.2- Committee passed the impugned order dated 06 th December 2007 and concluded that the petitioner was not able to prove his affinity towards 'Thakar', Scheduled Tribe and by referring to certain characteristics, and traits belonging to Thakar community, arrived at conclusion that the information submitted by the petitioner about traits, characteristics, occupation, customs etc., as not lead to an inference that the petitioner belongs to "Thakar", Scheduled Tribe N.S. Kamble page 3 of 10 ::: Uploaded on - 21/04/2018 ::: Downloaded on - 21/05/2018 07:56:02 ::: 905-WP-4299-2008 mentioned at Serial No.44 of the Presidential Order of 1950. It is this order, which is assailed in the present Writ Petition.
7. We have heard the learned counsel Shri.Mendadkar appearing on behalf of the petitioner and Shri.Kalel, AGP on behalf of the State. Shri.Mendadkar would submit that the caste scrutiny committee has no jurisdiction to enquire as to whether the petitioner belongs to Scheduled Tribe. He would submit that no enquiry at all is permissible and no evidence can be led to find out and to decide if any tribe or tribunal community or part of group within in tribe or community is included within the scope and meaning of the Article 44 of the Scheduled Tribe order. The learned AGP supported the impugned order and would submit that the petitioner has grossly failed to establish his affinity towards "Thakar", Scheduled Tribe and the committee has rightly rejected his claim.
Perusal of the impugned order passed by the committee would reveal that the community has thought it fit not to conduct vigilance inquiry in the case of the petitioner since vigilance inquiry was already conducted in the case of Shri.Bhaskar Narayan Gangawane uncle of the petitioner. The impugned order mentions that the committee has considered documents submitted by the N.S. Kamble page 4 of 10 ::: Uploaded on - 21/04/2018 ::: Downloaded on - 21/05/2018 07:56:02 ::: 905-WP-4299-2008 petitioner which inter alia disclosed the caste as 'Thakar'. However, committee has expressed a view that caste 'Thakar' and tribe 'Thakar' are distinct from each other. The committee concludes that though the petitioner's father's school leaving certificate and school register are the documents which reflect the caste as Hindu Thakar, he is not 'Thakar', Scheduled Tribe. In turn, the committee applied the affinity test since it opined that mere reliance on the documentary evidence would be improper and the claim of the petitioner would have to be considered by considering traits, characteristics and customs as disclosed by the petitioner.
8. This Court while deciding the case of the Amol Narayan Wakkar Vs. State of Maharashtra & Ors. which included the case of the present petitioner had specifically observed that the tribe 'Thakar' throughout the State has to be treated as Scheduled Tribe. The Court had specifically observed that the committee had no competence and authority to go into whether the petitioner belongs to Nomadic Tribe as has been attempted to be canvassed and in fact Entry No.44 of the Schedule to the Presidential order notified "Thakar" without any area restriction, being Scheduled Tribe within the State of Maharashtra.
In spite of the aforesaid observation by this Court, in N.S. Kamble page 5 of 10 ::: Uploaded on - 21/04/2018 ::: Downloaded on - 21/05/2018 07:56:02 ::: 905-WP-4299-2008 earlier round of litigation the committee reiterated its reasoning that though the documents of the petitioner reveal that he belongs to caste "Thakar", they do not reflect that he belong to "Thakar", Scheduled Tribe. The scrutiny committee is completely unjustified in proceeding with the enquiry on the basis of the alleged social, cultural, traits and ethics to find out whether the petitioner belonged to "Thakar" Scheduled Tribe or whether admittedly the petitioner belonging to "Thakar" caste. Once a particular caste/tribe finds place in a particular entry in the Scheduled Caste or Scheduled Tribe Order, it is not permissible for the committee to deny the members of the said Community the benefit flowing therefrom. By now it is settled position of the law that it is not permissible either from States or the Courts to interpret the entries which are in the form of Orders issued under Article 341 and 342 of Constitution of India and in particular clause 2 of the said Article which expressly states that the order cannot be amended and varied and except by the law made by the parliament. The committee has therefore completely erred in rejecting the claim of the petitioner by recording the aforesaid reasons.
The petitioner who has produced on record the documents reflecting the caste as 'Thakar' and the petitioner has specifically placed reliance on the document of his cousin uncle of N.S. Kamble page 6 of 10 ::: Uploaded on - 21/04/2018 ::: Downloaded on - 21/05/2018 07:56:02 ::: 905-WP-4299-2008 the year 1937 where the caste is recorded as Hindu, Thakar. The committee has failed to look into the said document which has great probative value and has rather rejected the claim merely on the ground that the petitioner has failed to prove his affinity towards 'Thakar', Scheduled Tribe. The petitioner has also tendered evidence of the Joint Secretary, Sindudurgh Zilla, Thakar Samaj who has revealed the customs, traditions etc, of Thakar tribe residing in Sindudurgh District, the committee without ascertaining the true characteristics and traits of 'Thakar', Scheduled Tribe and on the basis of the material collected by the committee from its Research Officer, merely concludes that the traits customs, culture, characteristics narrated by the petitioner do not match with that of Scheduled Tribe. The Hon'ble Apex Court in Anand V/s. Committee for Scrutiny and Verification of Tribes Claims 1 has held clearly that the genuineness of the caste claim has to be considered not only on a through 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. It is not a sole category where the person belongs to particular tribe. However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to 1 2012(1) SCC 113 N.S. Kamble page 7 of 10 ::: Uploaded on - 21/04/2018 ::: Downloaded on - 21/05/2018 07:56:02 ::: 905-WP-4299-2008 examine a caste claim. However, their lordships have laid down the following principles.
(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 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, affinity N.S. Kamble page 8 of 10 ::: Uploaded on - 21/04/2018 ::: Downloaded on - 21/05/2018 07:56:02 ::: 905-WP-4299-2008 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 tribes' 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."
9. In the light of the aforesaid decision the committee has grossly erred in relying solely on the affinity test, in complete ignorance of the documents of the pre-indepednace period which has great probative value and has mis-directed itself in rejecting the claim of the petitioner by concluding that though the petitioner belongs to 'Thakar' caste, he do not belong to 'Thakar', Scheduled Tribe. In such circumstances the impugned order cannot be sustained and is liable to be quashed and set aside.
ORDER I) The impugned order is quashed and set aside. II) It is held and declared that the Petitioner belongs to "Thakar, Scheduled Tribe".
N.S. Kamble page 9 of 10
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III) The Caste Validity Certificate be issued
to the Petitioner within a period of four weeks from today.
IV) Needless to state that all consequential benefits shall follow.
In view of disposal of Writ Petition, Civil Application does not survive and accordingly disposed of.
(SMT.BHARATI H. DANGRE, J.) (B.R. GAVAI, J.)
N.S. Kamble page 10 of 10
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