(1) WP No. 5531/2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5531 OF 2006 Bhaurao s/o Sahadu Bagul ] PSI, Police Line Shahada ]PETITIONER. Dist. Nandurbar ] VERSUS The State of Maharashtra ] Through Secretary, ] RESPONDENTS. Tribal Development Deptt. ] Mantralaya,Mumbai & others.] ----- Mr.A.S.Golegaonkar, Advocate for the petitioner. Mr.U.K.Patil, AGP, for respondents NO.1,3,4 and 5. Mr.M.S.Deshmukh, Advocate, for respondent No.2 CORAM : Naresh H. Patil and N.D.Deshpande, JJ. DATE : 29th June, 2009. ORAL ORDER : [ PER – NARESH H. PATIL,J.] 1] Heard. 2] The petitioner challenges the order dated 6th May, 2006 invalidating his tribe claim as “Tokare Koli” Scheduled Tribe. 3] The learned counsel Shri.A.S.Golegaonkar, appearing on behalf of petitioner, submits that in (2) WP No. 5531/2006 view of judgment of Full Bench of this Court in Shilpa Vs. State of Maharashtra [2003(9) Mh.L.J. 995], affinity test is a crucial test in matters of this nature. The Scheduled Tribe Certificate Scrutiny Committee (for short “the Scrutiny Committee”)is supposed to take overall view and assessment of documentary evidence led by the claimant, the vigilance cell report, affinity test and thereafter pass appropriate orders. The petitioner was selected as Police Sub Inspector through Maharashtra Public Service Commission in the year 1995 and since then he is working in the Home Department as Police Sub Inspector. The counsel placed reliance on following reported judgments in support of his contention that even if the Committee’s view is upheld, the benefit of Government Resolution dated 15/06/1995 has to be accorded to the petitioner. The counsel submits that even if the Committee’s order is upheld, petitioner may even be considered from Special Backward Category or from open category. 1. State of Maharashtra v. Sanjay K. Nimje[2007(3) Mh.L.J.795], 2. Shilpa vs. State of Maharashtra [2009(3) Mh.L.J. 995], 3. 2009(1) Mh.L.J. 1 4. Punjab National Bank vs. Vilas [2007(3) Mh.L.J.806] (3) WP No. 5531/2006 4] The learned counsel Shri.M.S.Deshmukh, appearing for respondent No.2 Scrutiny Committee, places reliance on following reported judgments in support of his contentions that the primary school record of petitioner contradicts the version of petitioner that he belongs to “Tokare Koli”. His primary school record refers to his caste as “Koli”. The Committee observed that the caste entry in the college leaving certificate has been manipulated and changed from “Koli” to “Tokare Koli” with clear intention to grab the concessions meant for the Scheduled Tribe communities. The counsel submitted that though the observations of Scrutiny Committee on the affinity test are not so elaborate as desired by petitioner, but then it cannot be termed that the Scrutiny Committee has shown total non- application of mind to the affinity test. Research Officer had also considered vigilance cell report and had opined accordingly. In the submissions of counsel, it has been held by Division Bench of this Court that the Government Resolution dated 15/6/1995 is bad in law in a judgment reported in Sunil Ingle Vs. Zilla Parishad [2009(2) ALL MR 867]. 1. Union of India v. Dattatraya [2008(2) Mh.L.J. 720], 2. Yogesh Naikwadi v. State of Maharashtra[2008(5) Mh.L.J. 726] (4) WP No. 5531/2006 3. Ganesh Rambhau Khalale Vs. State of Maharashtra [Full Bench] [2009(2) Mh.L.J. 788], 5. State of Maharashtra v. Sanjay K. Nimje [2007(3) Mh.L.J.795], 6. Sunil Ingle Vs. Zilla Parishad [2009(2) ALL MR 867]. 5] The learned counsel Shri.Golegaonkar submits that the Government Resolution dated 15/6/1995 and subsequent Government Resolutions will continue to have the same force as they were issued prior to the legislative enactment namely the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000. Reliance was placed by counsel on a reported judgment of Apex Court in Punjab National Bank vs. Vilas cited (supra). 6] We have considered the submissions advanced and gone through the judgments cited. We find that the petitioner has failed to lead documentary evidence in support of his caste claim that he belongs to “Tokare Koli” Scheduled Tribe. His primary school record speaks about his caste as “Koli”. Though petitioner’s case is that his father was illiterate and he was the first person in the family (5) WP No. 5531/2006 to seek benefit of caste as “Tokare Koli”, but even from the documents of the relations of petitioner, we find that the petitioner was unable to satisfy the Scrutiny Committee that his near relatives secured certificates of validity as “Tokare Koli”. What remains now to be seen is as to whether petitioner would succeed on the basis of vigilance cell report which the petitioner reads in his favour. The Scrutiny Committee has taken overall view of the matter and considering entire evidence and documents discarded the claim of petitioner that the petitioner had established affinity test as “Tokare Koli” Scheduled Tribe. In exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution, we cannot sit over the decision of Scrutiny Committee as an appellate authority. We have perused the documents placed on record and observations made by Scrutiny Committee. 7] In the light of judgments cited by learned counsel Shri.M.S.Deshmukh for Scrutiny Committee, we find that petitioner would not be in a position to secure benefits of Government Resolution dated 15/6/1995. 8] The petition, therefore, fails and is accordingly dismissed. 9] The learned counsel Shri.A.S.Golegaonkar, (6) WP No. 5531/2006 appearing for petitioner, seeks stay to the operation of this order for a period of two weeks. The learned counsel Shri.M.S.Deshmukh, appearing for respondent Scrutiny Committee, objects for staying the operation of this order. We are not inclined to stay the operation of this order. The request of counsel for petitioner stands rejected. [ N.D.Deshpande,J.] [ Naresh H. Patil,J.] pcr/o/wp5531.06