Bombay High Court
Sou. Priya W/O Pravin Parate vs Scheduled Tribes Caste Certificates ... on 4 October, 2012
Author: B.R.Gavai
Bench: S.A. Bobde, B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 2571/2001, 2260/2007 & 4225/2001.
......
WRIT PETITION No. 2571 OF 2001.
Sou. Priya w/o Pravin Parate,
aged about 28 years, resident of
Shegaon-Naka Road, Amravati,
Tq. and District Amravati. ...PETITIONER.
VERSUS
1. Scheduled Tribes Caste Certificates Scrutiny
Committee, "Adivasi Vikas Bhavan"
Giripeth, Amravati Road, Nagpur.
2. The Principal, Shri Sant Gajanan
Maharaj College of Engineering,
Shegaon, District Buldhana.
3. State of Maharashtra,
through Secretary, Social Welfare
Department, Mantralaya, Mumbai - 32. .. RESPONDENTS
.
WITH
WRIT PETITION No. 2260 OF 2007.
Anup Sureshrao Bende,
aged about 19 years, 2nd M.B.B.S.
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Student, Lokmanya Medical College,
Sion, Bombay. ...PETITIONER.
VERSUS
1. Committee for Scrutiny and Verification
of Tribe Claims, Amravati.
2. Principal, Lokmanya Tilak Medical
College, Sion, Bombay.
3. State of Maharashtra,
through Secretary, Social Welfare
Department, Mantralaya, Mumbai - 32
4. Vice Chancellor, Maharashtra University
of Health Sciences, Nashik. .. RESPONDENTS
.
WITH
WRIT PETITION No. 4225 OF 2001.
Pawan Sureshrao Bende,
aged about 19 years, resident of
Nandura District Buldhana, Occ -
3rd Year Student of Sant Gajanan
Maharaj Engineering College,
Shegoan. ...PETITIONER.
VERSUS
1. Scheduled Tribes Caste Certificates
Scrutiny Committee, "Adivasi Vikas Bhavan"
Giripeth, Amravati Road, Nagpur.
2. The Principal, Shri Sant Gajanan
Maharaj College of Engineering,
Shegaon, District Buldhana.
3. State of Maharashtra,
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through Secretary, Social Welfare
Department, Mantralaya, Mumbai - 32.
4. The Registrar, Amraoti University,
Amraoti. .. RESPONDENTS
.
--------------------------
Mr. K.H. Deshpande, Senior Advocate with Shri A.M. Sudame,
Advocate for the Applicant/Petitioners.
Mr. N.W. Sambre, Advocate for Respondent No.1 in W.P.Nos.2571 &
4225 of 2001 & Mrs. S.W. Deshpande, Advocate for Respondent No.1 in
W.P.No. 2260/2001.
Mrs. Joshi, A.G.P. for Respondent - State.
Mr. A.L. Deshpande, Advocate for Respondent No.4
(W.P.No.2260/2001).
Mr. A.R. Patil, Advocate for Respondent No.2 (W.P.No. 2571/2001.)
-----------------------
CORAM : S.A. BOBDE AND
B.R. GAVAI, JJ.
DATED : OCTOBER 04, 2012.
ORAL JUDGMENT ( PER B.R.GAVAI, J)
Rule. Rule made returnable forthwith. By consent of the parties the petitions are taken up for final disposal.
2. All the petitioners are real sister and brothers, who have approached this Court being aggrieved by the decision rendered by the respondent no.1 Committee for Scrutiny and Verification of Tribe Claims, thereby rejecting the claim of the petitioners of belonging to ::: Downloaded on - 09/06/2013 19:13:14 ::: Judgment wp2571.01 4 Halba Scheduled Tribe.
3. We have heard the learned Counsel appearing on behalf of the respective parties at length.
Shri K.H. Deshpande, learned Senior Counsel appearing on behalf of the petitioners submits that the rejection of the claim of petitioners of tribal status is, only on the ground that the petitioners have failed to prove the affinity test. The learned Senior Counsel submits that the Hon'ble Apex Court in judgment delivered in case of Anand .vrs. Committee for Scrutiny and Verification of Tribe Claims and others reported at 2011 (6) Mh.L.J. 919 has held that an affinity test cannot be considered as a litmus test. He submits that it is further held that if there are pre-Independence documents, the same are to be given more probative value and the affinity test would only act as an corroboration or otherwise to the documentary evidence. The learned Senior Counsel submits that though the petitioners have produced voluminous documents from their paternal side prior to 1950 showing caste of their forefathers to be Halbi, erroneously by applying the affinity test, the claim has been invalidated. The learned Senior Counsel further submits that the finding that the profession of weaving is Taboo in Halbi Tribe is also not correct. Learned Senior Counsel relying upon paragraph no.231 of the Amravati District Gazette submits ::: Downloaded on - 09/06/2013 19:13:14 ::: Judgment wp2571.01 5 that even from the said paragraph it would reveal that the tribals belonging to Halbi have taken up profession of weaving in Ellichpur City, Anjangaon Surji in Daryapur Taluq. The learned Senior Counsel therefore, submits that the impugned orders are not sustainable in law.
4. Mrs. S.W. Deshpande, learned Counsel appearing on behalf of respondent no.1 Committee, on the contrary submits that the Fareira Committee, which was appointed by the State Government during the pendency of the case of Milind Katware, has given a specific finding that the profession of weaving is Taboo, in so far as Halbi tribe is concerned.
The learned Counsel further submits that in the vigilance cell inquiry conducted in case of one of the petitioner i.e., Priya, in some of the documents, caste of forefathers of petitioner is written as 'Koshti'. The learned Counsel submits that in view of a specific entry showing petitioner's forefathers caste to be Koshti, the Committee had rightly rejected the claim of the petitioners.
5. The Hon'ble Apex Court recently in case of Anand vrs.
Committee for Scrutiny (supra), had an occasion to consider the importance of affinity test, while determining the claim of a person belonging to Scheduled tribe. The Hon'ble Apex Court in paragraph no.18 has observed thus -
::: Downloaded on - 09/06/2013 19:13:14 :::Judgment wp2571.01 6 "18. It is manifest from the afore-extracted paragraph that 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, we feel that 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 credibility ::: Downloaded on - 09/06/2013 19:13:14 ::: Judgment wp2571.01 7 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, 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. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with the 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, ::: Downloaded on - 09/06/2013 19:13:14 ::: Judgment wp2571.01 8 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 the claim."
It can thus, clearly be seen from the aforesaid judgment that the genuineness of the caste claim has to be considered not only on through examination of the documents submitted in support of the claim, but also on the basis of affinity test, which would include the anthropological and ethnological traits etc. However, it has been held that the said test cannot be applied mechanically. It has further been held that the affinity test cannot be applied as a litmus test while determining the claim of a candidate.
6. Perusal of the aforesaid judgment would clearly reveal that while dealing with the documentary evidence, a greater reliance has to be placed on pre-Independence documents, because they furnish higher degree of probative value to the declaration of status of a tribe.
7. While considering the affinity test, it has been held by the Hon'ble Apex Court that it has also to be considered that the present traits of a claimant may not match his tribe, particularly ::: Downloaded on - 09/06/2013 19:13:14 ::: Judgment wp2571.01 9 anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc., on account of migrations, modernization and contact with other communities.
8. In the facts of the present case, it would reveal that the petitioner in Writ Petition No. 2571/2001 has placed the following documents which are prior to 1950 i.e. prior to coming into force of the Constitution.
(1) Transfer certificate of Nandeo Nagoji (Paternal great-grand father of the petitioner) issued by Achalpur Municipal Council certifying that he was studying in the School from 05.03.1930 to 12.06.1934;
(2) A Certificate issued by the Achalpur Municipal Council certifying that Shriram Nago (Brother of petitioners paternal great-grand father), certifying that he was studying in the School from 28.06.1934 to 30.04.1941 and that he belongs to Halbi Tribe;
(3) A Certificate issued by the Achalpur Municipal Council certifying that Tukaram Nago (Paternal great-grand father of the petitioner) certifying that he was studying in the Municipal School from August, 1931 to 25.04.1938 and that he belongs to Halbi Tribe;
::: Downloaded on - 09/06/2013 19:13:14 :::Judgment wp2571.01 10 (4) A Certificate issued by the Achalpur Municipal Council in favour of Mahadeo Nagoji (Paternal great-grand father of the petitioner) certifying that he was studying in the School from 01.06.1926 to 01.03.1930 and that he belongs to Halbi Tribe;
9. It can thus clearly be seen from the material placed on record that there are at least 4 documents of pre-Constitutional era, which clearly go to show that the petitioners great-grand father and his brothers belong to Halbi Tribe.
10. In so far as the reliance on some of the entries pertaining to petitioners relatives from paternal side showing caste to be 'Koshti' on which Mrs. Deshpande, learned Counsel relies, are concerned, perusal of the said document would reveal that though the caste of the said person is written as Koshti, the profession is also shown as weaving. As can be seen from the Gazetteer of Amravati District, that Halbi's in erstwhile Ellichpur and Anjangaon Surji in Daryapur Taluq in Amravati District were also engaged in the profession of weaving. It is common knowledge that persons engaged in the profession of weaving were called as "Koshti". A possibility cannot be ruled out that due to this, said entries might have recorded. It is also relevant to refer to some ::: Downloaded on - 09/06/2013 19:13:14 ::: Judgment wp2571.01 11 portion from the authority of R.V. Russell on Tribes and Casts of the Central Provinces of India, published in 1916, wherein while dealing with the Halba Tribe, it has been stated that "Some of these soldiers may have migrated west and taken service under the Gond Kings of Chanda, and their descendants may now be represented by the Bhandara Zamindars, who, however, if this theory be correct, have entirely forgotten their origin. Others took up weaving and have become amalgamated with the Koshti caste in Bhandara and Berar."
From the aforesaid authority, it would reveal that persons belonging to Halba Tribe had migrated to west and taken service taken service under the Gond Kings of Chanda. It can also be seen that some of them had taken to weaving and had amalgamated with the Koshti caste in Bhandara and Berar. Merely because some stray entries as "Koshti" are recorded in respect of caste of some of the relative of petitioners from their paternal side; the voluminous documentary evidence of pre-Constitution era which clearly certify the petitioners great-grand father and his brothers to be Halbi, could not have been lightly brushed aside by the Scrutiny Committee. As discussed herein above, the Hon'ble Apex Court in case of Anand (supra), found that the pre-Independence documents have a greater probative value and they should be given due consideration while considering the claim of a ::: Downloaded on - 09/06/2013 19:13:14 ::: Judgment wp2571.01 12 tribal.
11. As already discussed herein above, merely because it was found that the petitioners forefathers were involved in the profession of weaving, could not have been a ground to reject their tribal claim, particularly in view of the observations contained in the Amravati District Gazetteer, so also in the authority of R.V. Russell, cited above.
12. In that view of the matter, we find that the Committee has grossly erred in rejecting the caste claim of the petitioners. In view of the voluminous documentary evidence of pre-Constitution era, not only in case of one grand father of petitioner, but also three of his siblings, which consistently go to show that in the school record maintained by the Achalpur Municipal Council, wherein the caste is recorded as Halbi, we find that the impugned orders are unsustainable.
13. It is nobody's case that the aforesaid documents are either fraudulent or fabricated one. In the report of the vigilance cell committee, veracity and genuineness of these documents have not been doubted. In that view of the matter, in view of the documents of pre-
Constitution era, which according to the judgment of the Hon'ble Apex Court have a greater probative value, the claim of petitioners could not ::: Downloaded on - 09/06/2013 19:13:14 ::: Judgment wp2571.01 13 have been rejected.
14. In that view of the matter, we find that the petitions deserve to be allowed. The impugned orders passed by the respondent no.1 Committee for Scrutiny of Tribe Claims, are quashed and set aside. The respondent Scrutiny Committee is directed to forthwith issue a certificate of validity in favour of the petitioners certifying them to be belonging to Halbi Scheduled tribe.
15. The learned Senior Counsel at this stage states that since one of the petitioner is desirous of prosecuting further studies on the basis of the claim as belonging to Scheduled tribe. The concerned Authority would act on the authenticated copy of this order while considering the candidature of the said petitioner.
16. Writ Petitions are accordingly allowed. Rule is made absolute in all the petitions in the aforesaid terms, with no order as to costs.
JUDGE JUDGE ::: Downloaded on - 09/06/2013 19:13:14 ::: Judgment wp2571.01 14 Rgd ::: Downloaded on - 09/06/2013 19:13:14 :::