1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2135 OF 2007 Vijay S/o Dayaram Sonawane, Age : 48 Years, Occu. : Service, presently working as Assistant Police Inspector, Amravati, District Amravati. .. .. Petitioner Versus 1. The State of Maharashtra 2. The Director General of Police, Maharashtra State, Mumbai. 3. The Scheduled Tribe Certificate Scrutiny Committee, Nasik Division, Nasik. .. .. Respondents Shri S. R. Barlinge, Advocate for the Petitioner. Shri R. P. Phatke, A.G.P. for the Respondent Nos. 1 and 2. Shri P. S. Patil, Advocate for the Respondent No. 3. CORAM : B. R. GAVAI, AND N. D. DESHPANDE, JJ. DATE : 09TH SEPTEMBER, 2009. ORAL JUDGMENT [Per B. R. Gavail, J. ] : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioner impugns the order 2 dated 14th February, 2007 vide which the claim of petitioner of belonging Thakur Scheduled Tribe has been invalidated. 3. The petitioner claims to be belonging to Thakur Scheduled Tribe and has accordingly been issued caste certificate by Executive Magistrate Jalgaon, on 27th July, 1987. The petitioner was selected as police sub inspector against a post reserved for the Scheduled Tribe. Since the petitioners selection was against the post reserved for Scheduled Tribe, his certificate was sent to respondent No. 3 for determining the validity of said certificate. By the aforesaid impugned order the claim of the petitioner is invalidated, hence the present petition. 4. It is the contention of the petitioner that, the caste claim of the real brother of the petitioner, namely, Ravindra Dayaram Sonawane and his daughter namely Jayshree D/o Vijay Sonawane of belonging to the Scheduled Tribe Thakur stands validated. However, the claim of the petitioner has been invalidated basically on the ground that, the petitioner has failed to answer the relevant questions regarding traits in the tribe and, therefore has failed in affinity test. 5. Shri Barlinge, the learned counsel appearing on behalf of petitioner submits that, when the claim of petitioners real brother and his daughter of belonging to Thakur tribe has been validated, it does not sound to reason that the claim of the petitioner is invalidated. He submits that, in any event the respondent No. 3/Committee has failed to take into consideration the relevant 3 documents, which would show that the petitioner belongs to Thakur Tribe. 6. Shri Phatke, learned counsel appearing on behalf of respondent No. 3/Committee, on the contrary submits that, the claim of each of the claimant has to be decided on its own merits. It is submitted that, merely because a brother and daughter of the petitioner have been held to be belonging to Thakur Scheduled Tribe, it does not ipse dixit confer status of Schedule Tribe upon the petitioner. In any event he submits that in so far as the claim of brother and daughter is concerned, the said claims were determined not on merits, but on account of the judicial orders. 7. Shri Phatke learned counsel appearing on behalf of respondent No. 3/Committee relies on the judgment of Full Bench of this Court in the case of Shilpa Vishnu Thakur vs. State of Maharashtra and others, reported in 2009(3) Mh. L. J. 995, in support of his submissions that, since the petitioner has failed in the affinity test, the claim has rightly been invalidated. 8. In view of the disparity in the orders passed by respondent No. 3/Committee validating the claim of the petitioner's brother and daughter and not validating the claim of the petitioner, we had requested the standing counsel of the committee to produce record, pertaining to the case's of petitioners brother and daughter and record pertaining to the petitioner's case for our perusal. Accordingly all the three files are produced for our perusal. The 4 perusal of both the files would reveal that, the material in respect of claim of Jayshree, so also the petitioner is identical. The petitioner has basically relied on the document pertaining to his admission in the school in the year 1965, the school leaving certificate of his father certifying his admission to school on 02nd January 1931, school leaving certificate of his father's brother, certifying his admission on 01st February, 1927. From the perusal of these documents, it would reveal that the caste of the petitioner in the school record has been shown as Hindu Thakur, whereas the caste of his father as well as father's real brother has been shown as Thakur. Both the documents at Exhibit "E" and "F" are the documents pertaining to pre-constitution era. 9. It would further reveal that, the material which has been found to be reliable by the Committee while validating claim of daughter Jayshree has been found not to be sufficient while rejecting the claim of petitioner. It can be seen that, the answer to the question regarding trait in the case of petitioners daughter have been given by the petitioner himself. No doubt, though the order dated 16th April, 2004 validating claim of petitioner's daughter Jayshree refers to various orders passed in various earlier petitions, it also refers to police inquiry, the report of vigilance cell and the personal hearing given to the petitioner. We are, therefore, unable to accept the contention of the learned counsel for the respondent No. 3/Committee that, the claim of the petitioners daughter Jayshree is validated only on the basis of judicial orders passed by this Court. We have perused the answers given by the petitioner regarding the 5 customs and rituals of the community to which he claims to be belonging. No doubt, that some of the answers given are incorrect, however, most of the answers are correct which we have compared with the Marathi book written by Dr. Govind Gare namely (Maharashtratil Adivasi Jamati). It is pertinent to note that, the information given in the book is relied by the Committee while scrutinizing the claim of persons belonging to the Scheduled Tribe. It is also difficult to understand that the material relevant for the purpose of determining validity of daughter of the petitioner has now been found irrelevant while determining the claim of the petitioner. In any event, the documents which are produced on record regarding caste of the petitioners father and uncle pertains to the period back of 1921 and 1923. 10. In so far as the reliance placed by learned counsel appearing for the respondent No. 3/Committee on the Full Bench judgment is concerned, we find that, the Full Bench has taken a view that, while determining the claim of a candidate belonging to the Scheduled Tribe, inquiry is not merely to be confined to an examination of the birth and the school records and the documentary evidence, but would also involve an investigation of the affinity of the candidate with a tribe. The Committee would be entitled to inquire into the question as to whether the applicant has established an affinity with the tribe. The yardstick for determining such affinity includes the rituals of the tribe and its customs, worship, ceremonies associated with birth, marriage and death and the conventions followed for the disposal of the dead bodies. 6 11. We therefore, find that even according to the Full Bench, the Committee is required to base its conclusions on the basis of the available material furnished before it including documentary evidence and the answers given regarding the affinity test. As we have already discussed hereinabove, the Committee itself while validating the claim of the petitioners daughter has found that, the petitioners daughter has passed the affinity test. Needless to state that, the said affinity test was given by the present petitioner himself. We fail to understand, as to how the material which has been found to be relevant for holding that the petitioner's daughter has passed the affinity test can now be said to be not relevant while considering the claim of the petitioner himself. It appears that, merely due to some circumstances, it is the petitioners daughter whose claim has been validated first and that the claim of the petitioner came to be considered subsequently. 12. In that view of the matter, we find that, the respondent No. 3/Scrutiny Committee has erred in invalidating the claim of the petitioner. 13. Rule is therefore, made absolute in terms of prayer clause "B" and "C". [ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.] bsb/Sept. 09