Bombay High Court
Ojasvi Mangalsing Mahale, Through ... vs The State Of Maharashtra And Others on 28 September, 2018
Author: S.V.Gangapurwala
Bench: S.V.Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5190 OF 2013
Ku.Ojasvi D/o. Mangalsing Mahale, ...PETITIONER
Age-18 years, Occu-Student,
Through her father-
Mangalsing S/o. Kewalsing Mahale,
Age-48 years, Occu-Service,
R/o. Vill. Salve, Tq. Sindhkheda,
Dist. Dhule,
Presently residing at 203, Bhoomi Apt,
Plot No.25/25-A, Sec-5, New Panvel (E)
Tq. Panvel, Dist. Raigad.
VERSUS
1. The State of Maharashtra ...RESPONDENTS
Through its Secretary,
Medical Education,
& Drugs Department,
Mantralaya, Mumbai-32
2. The Director of Medical Education
and Research, St. George's Hospital Compound,
Opp.Govt. Dental College Building,
Near CST Terminal,
Mumbai-400 001
3. The Committee for Scrutiny and Verification
of Tribe Claims, Nandurbar Region,
Nandurbar
4. Maharashtra University of Health Science,
Wani-Dindori Road, Nashik,
Through its Registrar
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5. The Dean,
Sr.G.S.Medical College,
K.E.M.Hospital Premises,
Parel, Mumbai
Mr.S.R.Barlinge, Advocate for the petitioner
Mr.P.S.Patil, AGP for respondent Nos. 1 to 3
Mr.K.M.Suryawanshi, Advocate for respondent No.4
CORAM : S.V.GANGAPURWALA &
S.M.GAVHANE,JJ.
RESERVED ON : 31.08.2018
PRONOUNCED ON : 28.09.2018
J U D G M E N T [PER: S.M.GAVHANE, J.]
. Rule. Rule made returnable forthwith. Heard
finally with the consent of the learned counsels of
the respective parties.
2. By this petition under Article 226 of the
Constitution of India the petitioner has prayed to
quash and set aside the order dated 29.09.2012
passed by respondent No.3-Scheduled Tribe Scrutiny
Committee, Nandurbar invalidating her caste claim
i.e. 'Thakur'-Scheduled Tribe and to issue direction
to respondent No.3 to issue caste validity
certificate as belonging to 'Thakur'-Scheduled Tribe
in favour of the petitioner.
3. Mr.Barlinge, learned counsel for the
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petitioner submitted that the petitioner belongs to
'Thakur'-Scheduled Tribe. She was issued the
certificate to that effect by the competent
authority namely District Supply Officer, Dhule on
05.05.2010. The petitioner was admitted in 11 std in
Mahatma School of Academics & Sports Junior College
of Arts, Science and Commerce, New Panvel. Said
college referred her caste certificate alongwith
relevant documents to respondent No.3-Scrutiny
Committee for verification. Respondent No.3
invalidated caste claim of the petitioner by
impugned order dated 29.09.2012.
4. Learned counsel for the petitioner further
submitted that the caste claim of father of the
petitioner has already been validated by the
competent authority namely Additional Commissioner
vide order dated 17.07.1991 as per Exhibit-D. On the
basis of validity issued in favour of father of the
petitioner, the Scrutiny Committee has already
issued validity certificate in favour of cousin and
paternal uncle of the petitioner. Moreover, it is
submitted that in addition to the validity
certificate of father and paternal uncle of the
petitioner, the petitioner submitted validity
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certificates of Pratibha Liladhar Thakru, Prashant
Liladhar Thakur and Nitin Liladhar Thakur who are in
blood relation of the petitioner i.e. daughter and
sons of cousin uncle i.e. Liladhar Todsing Thakur of
the petitioner. It is submitted that Kewalsing Ragho
Thakur grand-father of the petitioner was born on
05.01.1926 and he belongs a community 'Thakur'-
Scheduled Tribe as per certificate of Domicile
(Exh.F) at Page No.46. Petitioner had also submitted
documents which would indicate that the caste of her
forefather was recorded as Thakur in the record
pertaining to per-constitutional period. According
to the learned Advocate when all the documents
submitted by the petitioner clearly indicate that
the petitioner belongs to 'Thakur'- Scheduled Tribe,
there was no reason for the Scrutiny Committee to
hold on the basis of documentary evidence that the
petitioner has failed to prove her tribe claim.
Moreover, it is submitted that if the report of the
Vigilance Cell and the statements recorded by the
Vigilance Cell are properly appreciated, it would be
clear that the petitioner has not only satisfied the
Vigilance Cell enquiry in respect of her tribe claim
but in the Affinity test also she has through her
father given true and correct answers which would
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satisfy Affinity test in respect of 'Thakur'-
Scheduled Tribe. Thus, according to the learned
Advocate, from the documentary evidence as well as
affinity test, it would be clear that the petitioner
belongs to 'Thakur'- Scheduled Tribe.
5. To support his submissions the learned
Advocate for the petitioner has relied upon the
decision dated 14.07.2017 of the Division Bench of
this Court (Coram: B.R.Gavai and Riyaz I. Chagla,
JJ.) writ petition No.4504/2014 in the case of
Vaishali Liladhar Mahale Vs The State of Maharashtra
and others. Further the Learned Advocate has also
relied upon the decision of the Division Bench of
this Court (Coram: B.R.Gavai and M.S.Karnik, JJ.) in
the case of Jaywant Dilip Pawar Vs State of
Maharashtra and others in writ petition No.2152/2007
dated 26.09.2017 to support his submission that the
petitioner is entitled to validity certificate of
her caste belonging to 'Thakur'- Scheduled Tribe.
Thus, according to the learned Advocate for the
petitioner the impugned order is liable to be
quashed and set aside by allowing the petition as
Scrutiny Committee has not properly considered the
documents referred to above regarding caste of the
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father, grand-father, paternal uncle, cousins and
cousin sister of the petitioner.
6. Learned AGP appearing for respondent Nos. 1
to 3 and Mr. Suryawanshi, learned Advocate for
respondent No.4 supported the impugned order.
Learned AGP submitted that by the impugned order
dated 29.09.2012 the caste claim of the petitioner
as 'Thakur'-Scheduled Tribe has been invalidated by
respondent No.3. Said fact was suppressed by
Vaishali Liladhar Mahale in writ petition
No.4504/2014 who seems to be daughter of cousin
uncle Liladhar Mahale of the petitioner and as such
as the order of invalidating the caste claim of the
present petitioner as 'Thakur'-Scheduled Tribe was
not placed before the Division Bench of this Court
the claim of petitioner Vaishali Liladhar Mahale in
writ petition NO.4504/2014 was considered and hence
the decision in the case of Vaishali Liladhar
Mahale (supra) cannot be made applicable to the
present case to validate the caste claim of the
petitioner as 'Thakur'-Scheduled Tribe. Learned AGP
submitted that as the impugned order was suppressed
while deciding the petition filed by Vaishali
Liladhar Mahale action be taken against the said
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petitioner. It is submitted that respondent No.3 has
properly considered the material placed on record
and invalidated the claim of the petitioner as
'Thakur'-Scheduled Tribe by the impugned order and
there is no reason to interfere with the said order
and the petition deserves to be dismissed. To
support his submissions the learned AGP has relied
upon the following decisions:
I] Smt. Monika D/o. Satish Thakur Vs The State of
Maharashtra and others in writ petition No.10123/2010
with writ petition No.7079/2009 dated 04.05.2018.
II] Ku.Yogita D/o. Anil Sonawane Vs The State of
Maharashtra and others in writ petition No.6103/2010
dated 15.09.2016.
III] Ku.Chhaya D/o. Jasvantsingh Hajari Vs The
Committee for Scrutiny and Verification of Tribe Claims,
Amravati in writ petition No.4198/2005 with other
connected writ petitions dated 01.08.2018.
7. We have carefully considered the
submissions made by learned Advocate appearing for
the petitioner, respondent No.4 and learned AGP for
the respondent Nos.1 to 3. We have also gone through
the documents placed on record, impugned order and
the original record before the Scrutiny Committee in
the matters of Pratibha Liladhar Thakur, Prashant
Liladhar Thakur and Nitin Liladhar Thakur validating
their caste claims as 'Thakur'-Scheduled Tribe.
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8. It is clear from the record that as per
leaving certificate caste of Kevalsing who is
grand-father of the petitioner is recorded as
'Thakur'. Said caste is also shown in the extract of
General Register. Moreover, in the certificate of
age, domicile the caste of grand-father of the
petitioner is recorded as 'Thakur'. Moreover, the
date of birth of grand-father is shown as 05.01.1926
and he was admitted in the school on 02.08.1930 as
per school leaving certificate. The extract of
register also shows birth date as 05.01.1926 and
said extract also shows his caste as Hindu 'Thakur'.
Thus, it is clear from all above record of grand-
father of the petitioner which is prior to 1950 that
caste of grand-father of the petitioner was
'Thakur'. Similarly, it appears from the record that
the caste certificate of 'Thakur'-Scheduled Tribe
was issued in favour of the Mangalsing Kewalsing
Mahale father of the petitioner and said was set
aside by the Scheduled Tribe Certificate Scrutiny
Committee, Pune on 02.06.1989. Said order of
Scrutiny Committee was challenged before the
Additional Commissioner Tribal Development, Nashik
in Caste Appeal No.11/1990 and the said appeal was
allowed on 17.07.1991 and the order of Scrutiny
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Committee was set aside and it was declared that
father of the petitioner belongs to 'Thakur'-
Scheduled Tribe as per judgment (Exh.D) in Caste
Appeal No.11/1990. There is no record to show that
said order was challenged by respondents.
9. It is pertinent to note that the caste
certificate as belonging to 'Thakur'-Scheduled Tribe
was issued in favour of Jaysing Kevalsing Thakur,
uncle of the petitioner and certificate of validity
was also issued on 15.10.2003 by the Scrutiny
Committee. Moreover, the certificate of validity in
respect of Pratibha Liladhar Thakur cousin sister of
the petitioner as 'Thakur'-Scheduled Tribe was
validated by the Scrutiny Committee as per Exh.E on
09.06.2000. Similarly, the caste certificate as
'Thakur'-Scheduled Tribe issued by the Sub-
Divisional Officer, Shirpur Division, Shirpur, Dist.
Dhule in favour of Prashant Leeladhar Thakur cousin
of the petitioner was validated by the Scrutiny
Committee on 18.05.2002. On perusal of the record of
verification of tribe claim of Nitin Liladhar Thakur
who is cousin of the petitioner shows that he
belongs to 'Thakur'-Scheduled Tribe and certificate
in that respect was issued on 31.12.1992 by the
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Executive Magistrate, Sindkheda, Dist. Dhule and
certificate of validity was issued by Scrutiny
Committee on 18.05.2002.
10. On perusal of the record of verification of
tribe claims of cousins namely Prashant, Nitin and
cousin sister Pratibha of the petitioner it appears
that their caste certificates as 'Thakur'-Scheduled
Tribe were validated by the Scrutiny Committee after
making enquiry by the Officer of Vigilance Cell and
considering the reports of the said Officer.
Therefore, certificates of validity of caste of two
cousins and one cousin sister of the petitioner are
relevant and useful to the case of the petitioner to
consider her caste claim as 'Thakur'-Scheduled
Tribe. Thus, on the basis of said validity
certificates, it can be said that the petitioner
belongs to 'Thakur'-Scheduled Tribe caste.
11. In the above circumstances, finding of the
Scrutiny Committee while passing the impugned order
that the petitioner has failed to prove affinity
test is not proper. In fact, as held in the case of
Madhuri Nitin Jadhav and ors Vs State of Maharashtra
and ors reported in 2014(4)Bom.C.R. 753 affinity
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test is not the sole criteria either to grant and/
or refuse caste claim /benefits, although it is a
very important element. The Scrutiny Committee can
be satisfied upon documents placed on record and
grant caste validity certificate based on the same.
12. Apart from the above referred evidence the
learned Advocate appearing for the petitioner
relying upon the decision in the case of Vaishali
Liladhar Mahale (supra) submitted that Vaishali
Mahale is cousin sister of the petitioner. Her caste
claim as belonging to 'Thakur'-Scheduled Tribe was
invalidated by the Scheduled Tribe Certificate
Scrutiny Committee-respondent No.2 in the said
petition on 26.03.2015. Therefore, the said Vaishali
Mahale had filed writ petition challenging the said
order and said writ petition was allowed on
14.07.2017 by the Division Bench of this Court
(Coram: B.R.Gavai & Riyaz I. Chagla, JJ.) and the
impugned order dated 26.03.2015 passed by respondent
No.2 was quashed and set aside and it was declared
that petitioner-Vaishali Mahale belongs to 'Thakur'-
Scheduled Tribe and respondent No.2-Scheduled Tribe
Scrutiny Committee was directed to issue certificate
of validity within four weeks. Learned Advocate for
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the petitioner submitted that said decision dated
14.07.2017 has not been challenged by the
respondents. The decision in the case of Vaishali
Mahale (supra) is given on the basis of the
documents and material placed in the said case. In
the said case the Court has considered all the
documents also relied in present case and
considering the fact that Vaishali Mahale is cousin
sister of the petitioner, said decision is
applicable to the present case. Therefore, relying
upon the decision in the case of Vaishali Mahale
(supra) and on the basis of certificates of validity
of caste of uncle, cousins namely Prashant and Nitin
and cousin sister Pratibha of the petitioner, issued
by the Scrutiny Committee we have no reason to take
a different view than the view taken by the Division
Bench in the case of Vaishali Mahale (supra). In
such circumstances argument advanced by the learned
AGP that the order impugned in the present petition
dated 29.09.2012 invalidating the claim of the
present petitioner was suppressed by the petitioner
-Vaishali Mahale and therefore the decision in the
case of Vaishali Mahale (supra) cannot be made basis
to validate caste certificate of the petitioner as
belonging to 'Thakur'-Scheduled Tribe, is not
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acceptable. The Division Bench of this Court at
Principal Seat while allowing the writ petition
filed by cousin sister of the petitioner Vaishali
Mahale has independently considered the documents on
record and has set aside the judgment of Scrutiny
Committee invalidating her caste claim. In this view
of the matter the decisions relied upon by the
learned AGP are not applicable to the present case.
13. For the forgoing reasons we hold that the
impugned order passed by respondent NO.3-The
Committee for Scrutiny and Verification of Tribe
Claims, Nandurbar invalidating the claim of the
petitioner as 'Thakur'-Scheduled Tribe is not
correct and the same is liable to be set aside by
allowing the petition. Therefore, following order is
passed:
ORDER
A] Writ petition is allowed.
B] The impugned order dated 29.09.2012 passed by respondent No.3 the Committee for Scrutiny and Verification of Tribe Claims, Nandurbar is quashed and set aside.
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C] Respondent No.3 the Committee for
Scrutiny and Verification of Tribe Claims, Nandurbar is directed to issue caste validity certificate as belonging to 'Thakur'-Scheduled Tribe in favour of the petitioner within a period of 6 weeks from today.
D] Rule is accordingly made absolute in above terms. No costs.
[S.M.GAVHANE,J.] [S.V. GANGAPURWALA,J.] VishalK/wp5190.13 ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:19:16 :::