1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4458 OF 2009 1. Ku.Manisha D/o.Dattatrey Thakar, Age-16 years, Occu-Student, 2. Ku.Shubhangi D/o.Dattatrey Thakar, Age-13 years, Occu-Student, 3. Vaibhav S/o.Dattatrey Thakar, Age-11 years, Occu-Student All the petitioners being minor, through the natural guardian father- Shri.Dattatrey S/o.Devidas Thakar, Age-40 years, Occu-Service, R/o.Hali, Tq.Udgir, Dist.Latur PETITIONERS VERSUS 1. State of Maharashtra, Department of Tribal Development, Mantralaya, Mumbai-32, Through its Secretary 2. The Scheduled Tribe Caste Verification, Committee, Aurangabad Division, Aurangabad, 3. The Sub Divisional Officer, Udgir, Dist.Latur RESPONDENTS Mr.A.S.Golegaonkar, learned counsel for petitioners. Mr.V.B.Ghatge, learned Agp for respondent no.1 and 3 Mr.R.P.Phatake, learned counsel for respondent no.2. 2 (CORAM : P.V.HARDAS AND A.V.POTDAR, J.J.) DATE : 04/08/2009 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Rule. Rule made returnable forthwith. By the consent of the parties, the petition is taken up for final hearing at the stage of admission itself. 2. By the present writ petition under Article 226 of The Constitution of India, the petitioners have challenged the judgments & orders passed by the Scrutiny Committee, Aurangabad Division Aurangabad rejecting the appeals bearing no.LAT/16248/2008 dated 29/09/2008 in respect of petitioner no.1 Manisha Dattatrey Thakar, judgment and order passed in appeal no.16249/2008 in respect of petitioner no.2 Shubhangi Dattatrey Thakar dated 29/09/2008 and judgment and order passed in Appeal No. 16247/2008 dated 29/09/2008 in respect of petitioner no.3 Vaibhav Dattatrey Thakar. All these appeals arises out of the order passed dated 05/05/2008 in respect of 3 different applications submitted by these brother and sisters before The Sub Divisional Officer, Udgir for issuance of caste certificate as they claimed that they belongs to the caste “Thakar”, the Scheduled Tribe which applications were rejected by The Sub Divisional Officer, Udgir by these orders. 3. Heard respective counsels appearing for petitioners as well as the respondents. 3 4. During the course of arguments, all the learned counsels took us through the record and proceeding as well as the documents annexed with the writ petition. 5. For the proper consideration of the legal submissions advanced by both the sides across the bar, it is necessary to consider the facts which gave rise to file the present writ petition. It appears that the petitioners are sisters and brother. Petitioner no.1 is the eldest sister while the petitioner no.3 is the youngest brother amongst the three. Petitioner no.2 is the sister of both of them. Father of the petitioners Dattatrey Devidas Thakar has submitted 3 different applications dated 28/03/2008 on behalf of his minor daughters and son for issuance of caste certificate as he claimed he belongs to caste Thakar a Scheduled Tribe. Alongwith these applications, various documents were produced before the Sub Divisional Officer, Udgir including the caste certificate issued in the name of Dattatrey Devidas, the father of these 3 petitioners, copy of the transfer certificate issued by the Member, Govt. D.Ed. College, Murud in the name of father of the petitioners, copies of the entires in the service book showing the caste recorded in the service book of the father of the petitioners and the caste certificate issued in the name of eldest sister of these petitioners. Vide 3 separate orders dated 05/05/2008, these 3 applications submitted on behalf of these 3 petitioners were rejected by The Sub Divisional Officer, Udgir by observing that on perusal of the documents produced on behalf of the petitioners, the petitioners 4 have not produced caste validity certificate issued in favour of any of the blood relatives of the applicants. Caste validity certificates produced by the applicants are of the distinct relatives of the petitioners R/o.District Solapur likewise the documents produced by the petitioners were of the recent origin, hence these documents can not be considered. Being aggrieved by these orders passed by The Sub Divisional Officer, Udgir, 3 separate appeals were preferred before the Scrutiny Committee, Aurangabad Division Aurangabad which appeals were numbered as appeal no. 16247 to 16249/2008. All these 3 appeals were separately decided and dismissed by the judgment and order dated 29/03/2008. Judgment and order passed in these 3 appeals are identical wherein it is observed by the Members of the Scrutiny Committee that the documents produced before Sub Divisional Officer, Udgir were of the recent period in between 1968-1985 i.e. after passing the first presidential order after 1950 and hence can not be accepted. The validity certificates submitted on behalf of the petitioners appellant were of the relatives from maternal side hence can not be accepted and on these grounds dismissed all the 3 appeals of which judgment and orders are impugned in the present writ petition. 6. During the course of submissions across the bar, the learned counsel for the petitioners as well as the respondents taken us through the documentary evidence produced before the Sub Divisional Officer, Udgir which was analyzed by him as well as by the members of the Scrutiny Committee. It can not be disputed that the 5 children will aways entitled for the caste of their father. The documents produced before the Sub Divisional Officer, Udgir clearly shows that the father of the petitioners have produced the caste certificate issued in his name as well as the school record in which the caste of his father was recorded as “Thakar”. Entry was also recorded in the service book of the father of the petitioners as Thakar. In the premise, these petitioners are entitled for the caste of their father which was recorded in the service record as well as the school record of their father. We can not lost our sight that the same Scrutiny Committee, Aurangabad Division Aurangabad have issued caste certificate/Tribe Certificate to the real eldest sister of the present petitioners vide their order dated 06/11/2007 which was also placed on record before The Sub Divisional Officer, Udgir and was also before the members of The Scrutiny Committee Aurangabad Division Aurangabad. Thus this is a case where on the face of it, it is apparently clear that there is total non application of mind on the part of Sub Divisional Officer, Udgir as well as the members of the Scrutiny Committee, Aurangabad Division Aurangabad while rejecting the applications for issuance of the caste certificate/tribe certificate to the petitioners at the hands of Sub Divisional Officer, as well as the members of the Scrutiny Committee, Aurangabad Division Aurangabad. If it is so, the impugned orders under this writ petition ought to be quashed and set aside and accordingly we quash and set aside the orders dated 29/09/2008 in appeal no.16247/2008 to 16249/2008 passed by the Scrutiny Committee Aurangabad Division Aurangabad as well as the orders passed on 05/05/2008 by The Sub 6 Divisional Officer, Udgir on the applications submitted before him for issuance of caste certificate/tribe certificate by these petitioners. We order Sub Divisional Officer, Udgir to issue the Tribe/Caste Certificate to the petitioners as they belongs to “Thakar” the Scheduled Tribe forthwith. 7. We hereby make it clear that even though we have directed The Sub Divisional Officer, Udgir to issue the caste certificate to the petitioners as petitioners belong to Thakar Scheduled Tribe., this caste certificate issued in favour of the petitioners is subject to the caste validity certificate to be issued by the competent authority. 8. Rule thus made absolute as indicated above. The writ petition stands disposed of with no order as to costs. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/AUGUST 2009/wp4458-09