Rahul Rajendra Thakur v. Scheduled Tribe Certificate Scrutiny Committee and Another

1 WP / 14641 / 2021 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 14641 OF 2021 Rahul Rajendra Thakur Age : 29 years, Occu : Education, R/o Plot No. 42 B, Rajeshwari Vihar, Korit Road, Nandurbar Tq. and Dist. Nandurbar .. Petitioner Versus 1] Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, through its Member Secretary 2] College of Pharmacy (D. Pharm) Chincholi – Mohu, Tq. Sinnar, Dist. Nashik, through its Principal .. Respondents ... Advocate for petitioner : Mr. Mahesh S. Deshmukh and Mr. Umesh Gite AGP for the respondent – State : Mr. A.A. Jagatkar ...

CORAM : MANGESH S. PATIL &

SHAILESH P. BRAHME, JJ. RESERVED ON : 28 JULY 2023 PRONOUNCED ON : 24 AUGUST 2023 JUDGMENT (MANGESH S. PATIL, J.) : Heard. Rule. Rule made returnable forthwith. Learned AGP waives service for the respondent no. 1. At the joint request, the matter is heard finally at the stage of admission since the petitioner is seeking admission to a professional course in the current academic year. 2 WP / 14641 / 2021

¶2By resorting to section 7(1) of the Maharashtra Act no. XXIII of 2001, the respondent - scrutiny committee by the order under challenge has confiscated and cancelled the tribe certificate of the petitioner of Thakur scheduled tribe.

¶3The learned advocate Mr. Deshmukh for the petitioner would submit that the impugned order is perverse and arbitrary. Even the oldest entry of the grandfather from the birth record of the village of the year 1935 has been conveniently overlooked and some contrary entries of latter period of the years 1943, 1944, 1947 as Hindu Bhat or Bhat have been resorted to to discard the claim. Besides, he would point out that the old school record of petitioner's great grandfather - Khandu Bhika Thakur and his sister Rupi Bhika Thakur of the year 1912 of Zilla Parishad Kendra School no. 1, Betawad, Tq. Shindkheda, District - Dhule has been ignored. The original entries were in Modi script. Its translation was also produced by the petitioner. The translation was done by the curator of a Government department and still it has been overlooked. He would submit that even that record was subjected to verification by the vigilance officer who submitted the report and produced the copies in Modi script. In spite of availability of such oldest record, inference has been drawn by stray contrary entries. The approach of the committee is clearly perverse and arbitrary. 3 WP / 14641 / 2021

¶4Mr. Deshmukh would further submit that the committee has also resorted to area restriction which legally it could not have done in view of The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and in the light of the observations in Palaghat Jila Thandan Samuday Sanrakshan Samiti and Another Versus State of Kerala and Another; (1994) 1 SCC 359. He would then submit that the committee has also resorted to affinity test which is not a litmus test and has limited scope. He would point out that even in respect of the affinity test, it is not that the petitioner has completely failed. Some positive responses were given to the queries being put to test the affinity of the family to the traits of the community. He would, therefore, submit that the petitioner's genuine claim has been turned down illegally.

¶5Learned AGP would support the order. He would submit that the committee has undertaken a threadbare scrutiny. No plausible explanation was coming forth in respect of contrary entries of pre-presidential order period. A lame excuse was sought to be extended that those were recorded erroneously which the committee has rightly refuted. The learned AGP would further submit that the committee has rightly resorted to the area restriction while applying the affinity test to buttress its inference that the claim of the petitioner was not tenable. 4 WP / 14641 / 2021

¶6We have carefully considered the rival submissions and perused the record.

¶7The impugned order itself produces charts of the favourable and contrary entries which are as under:- Sr. No. Document Type Document Holder's name Relation with the applicant Entry of Caste Date of Entry Birth certificate Baap Khandu Bhika Grandfather Thakur (Bkdwj) Birth date –

21.11.1935 School record Ambubai Damu Khandu Cousin Aunt Hindu Thakur (fganw Bkdwj) Birth date -

21.01.1959 School record Devidas Damu Salunke Cousin Uncle Hindu Thakur (fganw Bkdwj)

08.12.1961 School record Shivaji Shamrao Thakur Uncle Hindu Thakur (fganw Bkdwj)

13.06.1968 School record Rohidas Damu Thakur Cousin Uncle Hindu Thakur (fganw Bkdwj)

12.06.1969 School record Mangala Shambhau Thakur Aunt Hindu Thakur (fganw Bkdwj)

01.02.1971 School record Sanjay Shamu Thakur Uncle Hindu Thakur (fganw Bkdwj)

09.06.1978 School record Rajendra Shamu Thakur Father Hindu Thakur (fganw Bkdwj)

30.12.1981 School record Rahul Rajendra Thakur Applicant Hindu Thakur (fganw Bkdwj)

16.06.1998 School record Yogesh Rajendra Thakur Brother Hindu Thakur (fganw Bkdwj)

04.06.2001 School record Rohini Rajendra Thakur Sister Hindu Thakur (fganw Bkdwj)

07.07.2003 Educational Record : Sr. No. Document Type Student's name Relation with the applicant Caste Date of Admission School Record Shamu Khandu Thakur Cousin Grandfather Hindu Bhat (fganw HkkV)

01.06.1943 School Record Damu Khandu Thakur Cousin Grandfather Hindu Bhat (fganw HkkV)

01.08.1944 Death Record Banchhi Baap Khandu Cousin Grandfather Bhat (HkkV) Date of Death

28.09.1947 Birth Record Baap Khandu Bhika Grandfather Thakur (Bkdwj) Date of Birth

02.04.1946

¶8We appreciate the fact that it is not a mathematical calculation while appreciating the old record when it is either produced or collected for or against the claim of a person of belonging to a particular tribe or caste. However, conspicuously, except the three contrary entries wherein the petitioner's cousin grandfathers have been 5 WP / 14641 / 2021 described as Hindu Bhat, Hindu Bhat and Bhat between years 1943 to 1947, there is at least one entry of the year 1935 mentioned at serial number 1 of the first chart wherein the child born to petitioner's great grandfather - Khandu Bhika has been described as Thakur. Conspicuously, the committee has simply brushed aside this entry when it was expected of it to have dealt with this entry which is prior in point of time than the contrary entries the committee was relying upon. There is no discussion about this older entry prima facie substantiating petitioner's claim of belonging to Thakur scheduled tribe.

¶9Again, apart from the above entries, the petitioner had produced even older entries in the school record of Zilla Parishad School Betawad of the year 1905 wherein his great grandfather Khandu Bhika and his sister were described as Thakur. Pertinently, these two documents which are in Modi script together with the translation made by the curator of the State run archive from Dhule was produced by the petitioner's father before the committee on 28-01-2021. It is thereafter that a further vigilance enquiry was undertaken and a report was submitted by the vigilance officer before the committee on 14-09-2021 expressly mentioning therein about having collected the school record in respect of Khandu Bhika and Rupy Bhika Thakur from Zilla Parishad school Betawad which entries were in Modi. If such is the state-of-affairs and particularly when again in the petitioner's reply to such vigilance report expressly adverting 6 WP / 14641 / 2021 attention of the committee to these two oldest entries of the school record of the year 1904-05, the committee for the reasons best known to it has completely and outrightly ignored both these old entries. In the light of Anand Katole Vs. Committee for Scrutiny and Verification of Tribe Claims and others; (2012) 1 SCC 113, these being the oldest entries would carry greater probative value than the contrary entries relied upon by the committee which are of the years 1943-44 and 1947.

¶10It is thus apparent that there are at least three older entries of the year 1904, 1905 and 1935 which were expressly brought to the notice of the committee as can be seen from the submissions advanced before it by petitioner's learned advocate and reproduced in paragraph no. 5 of the impugned order. If such is the state-of-affairs, the approach of the committee in simply overlooking the older entries and drawing an inference based on the entries of the latter point of time, is clearly perverse, arbitrary and capricious.

¶11In our considered view, such old record clearly substantiate petitioner's claim of belonging to Thakur scheduled tribe.

¶12Again, in spite of the area restriction having been removed way back in the year 1976, and even when the petitioner's documentary evidence was sufficient to substantiate his claim, resorting to the affinity test, is clearly illegal. 7 WP / 14641 / 2021

¶13True it is that the committee seems to be skeptical about the fraudulent claims being made by the non-tribals thereby affecting the genuine tribals. However, being skeptical is one thing and being cynical is another. Merely because the committee has some bad experience one cannot comprehend as to how it could be to the extent discarding the pre-presidential order entries also.

¶14The approach of ignoring the favourable entries of the older period while drawing an inference on the basis of contrary entries of the latter period is clearly perverse.

¶15The writ petition is allowed.

¶16The impugned order is quashed and set aside.

¶17The respondent - scrutiny committee shall immediately issue the tribe validity certificate to the petitioner of belonging to Thakur scheduled tribe.

¶18Rule made absolute accordingly. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGE arp/