1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2016 OF 2007 Prakash s/o. Rambhau Thakur Age 54 years, Occ. Service, R/o. Kamla Nehru Society Tq. Indapur, Dist. Pune .. petitioners Versus 1] The State of Maharashtra through its Secretary, Tribal Development Department, Mantralayam Mumbai. 2] Scheduled Tribe Certificate Scrutiny Committee, Aurangabad through Deputy Director, Aurangabad. .. Respondent. --- Mr. S.R. Barlinge, Advocate for the petitioner Mr. AGP for respondent No.1 Mr. R.P. Phatke, AGP for the respondent No.2 CORAM : B.R. GAVAI & N.D.DESHPANDE,JJ. DATE : 10TH SEPTEMBER,2009. ORAL JUDGMENT : [PER B.R. GAVAI,J.]- 1] Rule. Rule made returnable forthwith. Heard by consent. 2 2] This is again a classic case wherein, the respondent No.2 Committee has invalidated the claim of the petitioner as belonging to “Thakur Scheduled Tribe” while it has validated the claim of the petitioner's son and real brother. It is further interesting to note that this has been done by relying on the same material, which was relied upon by the Committee while validating the claim of the petitioner's son Arun and real brother Angadh. 3] The petitioner was granted a certificated certifying that the petitioner belongs to “Thakur Scheduled Tribe” on 30/6/1978 by the Executive Magistrate, Ambejogai. The petitioner was appointed as a Teacher on 15/6/1981. It appears that the petitioner was appointed as Head Master on 20th July, 2005, against a post reserved for Scheduled Tribe, which necessitated the validation of the claim of the petitioner as belonging to “Thakur Scheduled Tribe”. Accordingly, a reference was made to the respondent No.2 Committee. However, since the claim of the petitioner was not decided, the petitioner approached this court by way of W.P. No. 6570/2005. This court, vide order dated 30th August, 2005, directed the respondent No.2 Committee to decide the claim of the petitioner, within a stipulated period. The respondent No.2 Committee, vide order dated 31st January, 2007 has invalidated the claim of the petitioner. Hence, the present petition. 4] Shri Barlinge, learned counsel for the petitioner submits that the petitioner's real brother Angad and his two daughters, namely, Bhaghashali and Swapna and the petitioner's son Arun have been held to be belonging to 3 the “Thakur Scheduled Tribe” by the same committee. However, on the basis of the same material, the petitioner's claim has been invalidated. He, therefore, submits that the impugned order is not sustainable in law. 5] Shri Phatke, learned counsel for the respondent No.2 on the contrary submits that the claim of each candidate has to be decided independently . He submits that merely because the claim of the close relative of the petitioner has been validated, that cannot be a ground for validation of the claim of the petitioner. 6] To decide the controversy, we had called the original files of the petitioner, his younger brother Angad and petitioner's son Arun. It could be seen that while the claim of the petitioner's brother Angad was being considered by the respondent No.2 committee, a home enquiry was made by the Vigilance Cell. The vigilance cell had also recorded the statements of the petitioner's brother. The respondent No.2 scrutiny committee, while validating the claim of the petitioner's brother Angadh, vide order dated 9/3/2004, has observed thus : “The police inspector of vigilance cell has visited the original native place of the applicant and his relatives, verified the record, recorded the statements and found that their culture, custom, characteristics , occupations etc. were of Thakur Scheduled tribe.” 4 From the perusal of the said order, it would reveal that various documents, including the document of the pre-constitutional period, i.e. 1939 were considered by the committee. It is further interesting to note that while validating the claim of the petitioner's brother Angad, the committee has also relied on the xerox copy of the extract of the first page of the service book of the present petitioner, wherein, the petitioner's caste is recorded as “Thakur”. 7] It could thus be seen that while determining the question regarding validity of the petitioner's brother Angadh, the committee had taken into consideration the aspect of affinity test. Finding that the petitioner's brother had passed the said affinity test and further that the documentary evidence produced on record was sufficient enough to establish the claim of Angadh, validity was granted in favour of Angad, the brother of the petitioner. On the same material, the claim of the petitioner's son Arun has been held to be valid vide order dated 9/1/2004. 8] However, in so far as the case of the present petitioner is concerned, it is interesting to note that the committee has observed thus :- “On going through the statements recorded by the Vigilance Officer, the committee observed that the petitioner and his family have not even basic knowledge of traits, characteristics, customs, culture etc. of Thakur Scheduled Tribe community.” 5 9] It is to be noted that since a home enquiry was already conducted by the vigilance committee in the case of Angad, the same enquiry was relied upon by the respondent No.2 committee while considering the case of the petitioner. It is interesting to note that the answers which were found to be correct while validating the claim of the petitioner's brother Angad, the same were found to be incorrect while considering the claim of the petitioner. The committee, after finding that the petitioner and his family does not have the basic knowledge of the traits, characteristics, customs and culture of Thakur Scheduled Tribe has invalidated the claim of the petitioner. It is further to be noted that in the interregnum the two daughters of Angadh, namely, Baghyashali and Swapna have also been held to be belonging to Thakur Scheduled Tribe by the respondent No.2 committee. No doubt, the committee has to scrutinize each and every case on its own merit and arrive at its decision. However, at the same time, it cannot be permitted to take diagonically opposite stands on the same material in two different cases. When the same material has been relied upon for validating the claim of the petitioner's brother by the committee , it is difficult to understand, how can the same be held to be incorrect for invalidating the claim of the real brother of Angad, i.e. the petitioner. Due to the said act of the committee, an anomalous situation has arisen, wherein on one hand, the petitioner's son, his real brother and two daughters of his brother, have been held to be belonging to 'Thakur Scheduled Tribe”, and on the other hand it has been held that the petitioner does not belong to “Thakur Scheduled Tribe”. We find 6 that such an approach is unsustainable, particularly so, when the claim of his brother Angad has been validated after finding his case to be genuine on the basis of the affinity test, which was conducted by the Vigilance Cell. In that view of the matter, we find that the respondent No.2 has erred in rejecting the claim of the petitioner. 10] Rule is, therefore, made absolute in terms of prayer clause (B). Needless to state that the respondent No.2 committee shall grant a validity certificate to the petitioner within a reasonable time and in any case within a period of two months from today. [N.D. DESHPANDE, J.] [B.R. GAVAI,J.] Grt/-