1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7813 OF 2009 Dattu s/o Namdev Thakur Age: Yrs., occu. Service at Present working as Kendra Pramukh Kendriya Primary School, R/o At post Pimpri (kh) Tq. Dharangaon, Dist.Jalgaon. - PETITIONER VERSUS 1) The State of Maharashtra Through its Secretary Department of Tribal Development, Mantralaya, Mumbai. 2) Scheduled Tribe Certificate Scrutiny Committee, Nandurbar, Through Member Secretary. 3) The Chief Executive Officer Zilla Parishad, Jalgaon. 4) The Education Officer(Primary) Zilla Parishad, Jalgaon. 2 5) The Executive Magistrate Yawal, Tq. Yawal, District Jalgaon. - RESPONDENTS ___ WRIT PETITION NO.8048 OF 2009 Amol s/o Dattu Thakur Age: 20 Yrs., occu. Student, R/o At Post Pimpri (Kh) Tq. Dharangaon, Dist.Jalgaon. - PETITIONER VERSUS 1) The State of Maharashtra Through its Secretary Department of Tribal Development, Mantralaya, Mumbai. 2) Scheduled Tribe Certificate Scrutiny Committee, Nandurbar, Through Member Secretary. 3) The Chairman Pravesh Niyamak Committee, 3 Aliyawar Jung Marg, Polytechnic Building, Bandra (E), Mumbai-51. 4) The Principal, Seth Govind Raghunath Sable College of Pharmacy, Saswad, Tq. Purandar, District Pune. 5) The Registrar, Poona University, Pune. 6) The Sub Divisional Officer, Sub-Division office, Bhusawal, Dist. Jalgaon. - RESPONDENTS ___ WRIT PETITION NO. 7289 OF 2009. Kum.Pratibha d/o Dattu Thakur Age: 24 Yrs., occu. nil, R/o At Post Pimpri (Kh) Tq. Dharangaon, Dist.Jalgaon. - PETITIONER VERSUS 1) The State of Maharashtra 4 Through its Secretary Department of Tribal Development, Mantralaya, Mumbai. 2) Scheduled Tribe Certificate Scrutiny Committee, Nandurbar, Through Member Secretary. 3) Under Secretary, Maharashtra Public Service Commission, Bank of India Bldg., 3rd floor, Mahatma Gandhi Road, Hutatma Chowk, Mumbai – 4000 001. 4) The Principal, Sane Guruji Vidya Probodhini Sarva Samaveshak Shikshan Shastra Mahavidyalaya, Khiroda, Tq. Raver, Dist. Jalgaon. 5) The Registrar, North Maharashtra University, Jalgaon. 6) The Sub Divisional Officer, 5 Sub-Division office, Bhusawal, Dist. Jalgaon. - RESPONDENTS ***** Mr.MK Deshpande,Advocate for Petitioners; Mr.SK Tambe,AGP for State; Mr.US Malte, Advocate for Resp.No.2-Committee Mr.MS Sonawane, Advocate for Respondent Nos. 3 & 4 (in WP7813/09) ----- CORAM : NARESH H. PATIL & K.U.CHANDIWAL, JJ. DATE : 14th December, 2009. JUDGMENT (PER: K.U.CHANDIWAL,J.) 1) Rule. Rule made returnable forthwith. By consent of parties heard finally. 2) Since the issue involved in these writ petition is identical, therefore, these petitions are being heard and disposed of by this common judgment. 3) The petitioners claim to be 6 `Thakur’ (scheduled tribe). Their caste certificates issued by the competent authorities on 7.6.2001 were invalidated by the Caste Scrutiny Committee by order dated 4.9.2009 and dated 24.9.2009 respectively and the same is assailed in writ jurisdiction under Articles 226 and 227 of the Constitution of India. 4) The petitioner – Dattu has studied initially up to Xth Std. and during the course of his employment, he has completed B.A.B.Ed. course. He joined as primary teacher on 15.3.1994 and was promoted time to time. The petitioner had a certificate dated 1.7.1981 issued by the Executive Magistrate, Yawal, certifying that the petitioner is scheduled tribe `Thakur’. The said certificate was subjected by the Block Development Officer for its validation on 22nd October, 2003. However, since the Caste Scrutiny Committee did not decide it in time, the petitioner with his son and daughter had approached this Court in Writ Petition No. 7 1270/2006 and the Division Bench of this Court disposed of the same with directions to decide the caste claim of the petitioner within four months from 17.4.2006 in accordance with law. 5) The petitioners – Amol s/o Dattu Thakur and Kum.Pratibha d/o Dattu Thakur, while they were studying in XIth Std., their caste certificates were forwarded to the Caste Scrutiny Committee for validation purpose. 6) Petitioner – Amol and Kum.Pratibha were born on 10.01.1989 and 23.4.1986 respectively and they received the Caste Certificates from the Competent Authority on 7.6.2001. 7) Vigilance Cell report was called, which was verified by the petitioner - Dattu. Since simultaneously the scrutiny and inquiry in respect of the petitioners – Amol and Kum.Prathibha was conducted on 23rd January, 2009, the Vigilance Officer had submitted the report on 8 3rd of April, 2008. 8) Mr.Deshpande, learned Counsel appearing for the petitioners contended that the Caste Scrutiny Committee failed to appreciate the documents in proper perspective. The Order of the Committee is against the law, justice and equity. The Committee has erred in appreciating the School Leaving Certificate of Namdeo Bandu Thakur of 1928, who, is father of the petitioner – Dattu and grand-father of petitioners – Amol and Kum.Pratibha, which disclose that he belonged to Thakur caste. 9) The learned Counsel for the petitioners relied upon the Judgment in the matter of Shilpa Vishnu Thakur Vs. State of Maharashtra and Ors. - 2009 (3) Mh.L.J. 995 (Full Bench) and also to the Judgment in the matter of Pandurang Rangnath Chavan Vs. State of Maharashtra and Ors. - 1998 (2) Mh.L.J. 806. 9 10) We have verified the original record in respect of the petitioners produced by Shri Malte, learned Counsel appearing for the Scrutiny Committee. 11) We have perused the Judgments cited (supra). In the Full Bench Judgment, it is observed as under : “The nature of the inquiry in regard to the claim of a candidate to belong to a Scheduled Tribe is not merely to be confined to an examination of the birth and the school records and of documentary evidence but would involve an investigation of the affinity of the candidate with a tribe, or as the case may be, tribal community. Thus, the process of verification of caste claims which came to be governed by the Judgment of the Supreme Court in Madhuri Patil involved an inquiry not merely into the documentary materials on the basis of which the caste claim is founded but equally a verification of the claim with reference to the affinity of the 10 candidate with a designated Scheduled Tribe. The inquiry would comprehend within its purview anthropological and ethnological traits. 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, worships, ceremonies associated with birth, marriage and death and the conventions followed for the disposal of dead bodies. Right through the ages, int he evolution of the human race, birth, marriage and death have been considered to be milestones around which customs and rituals of communities have grown. Worship is an integral aspect of the life of a community and tribal communities are identifiable with reference to specific modes of worship. The affinity test which comprehends all these aspects is, therefore, not extraneous to the process of identifying whether the applicant is a genuine member of a 11 tribe or is an imposter fraudulently claiming the benefits of a reservation to which he is not entitled.” It is also observed in para 35 as under : “35. We have adverted to the judgments of the Division Benches of this Court in order to emphasize that the line of reasoning that has been followed is that before an applicant can be validly regarded as being eligible to receive the benefits attached to being a member of a Scheduled Tribe, the burden lies on the applicant to establish membership of the tribe. An inquiry into whether the applicant belongs to a Scheduled Tribe is not precluded by the Presidential Order or by the Judgments of the Supreme Court in Palghat Jilla Thandan and Milind Katware. For the purposes of determining as to whether an applicant belongs to a Scheduled Tribe, the Scrutiny Committee has to be satisfied on the basis of all the 12 available material on the record that such is the position. The material on the record would include documentary evidence and oral evidence and comprehend the application of the affinity test.” 12) In para 40(ii)(a) and (c), the Full Bench observed thus: “40.(i)............................ (ii)(a)The mere fact that the documents produced by a person reflect his surname as being synonymous with the name of a designated tribe, is not sufficient to establish that the applicant belongs to a Scheduled Tribe. Before a person can be regarded as belonging to a Scheduled Tribe, that person must demonstrably be a member of the tribe. Allowing claims merely on the basis of an overlap between the surname of the person as reflected in the documents produced and the name of a designated tribe may result in a grave miscarriage of justice and lead to the grant of benefits to persons who are not genuinely members of a designated 13 tribe. In Order to determine, whether a person genuinely belongs to a designated Scheduled Tribe, the Scrutiny Committee must have regard to the entire body of evidence including on the question as to whether the applicant has satisfied the affinity test. (b)................................. (c) Where a person has some document, in his or her favour and/or partially satisfies the crucial affinity test, the question as to whether certification should be granted would depend upon the overall view which is formed by the Competent Authority in the first instance and by the Scrutiny Committee subsequently on the preponderating weight of the e evidence. The nature of the documents that have been produced, the genuineness and authenticity of the documentary evidence and the weight to be ascribed to the documents produced, are matters which must be decided by the authority concerned. If a candidate has satisfied the crucial affinity 14 test in part, it is for the Competent Authority and the Scrutiny Committee to determine in each case as to whether, on considering the entire material on the record, the caste claim is correct and genuine. An answer in the abstract cannot be furnished. it is for the quasi- judicial authority in each case to arrive at its finding on the basis of the material on the record.” 13) Before adverting to the petitioners’ claim to be belonging to Thakur tribe, a Scheduled Tribe having entry at Serial No. 44 in the List of Scheduled Tribe, we shall have to consider that term `Thakur’ has reference even at Serial No.22 in the List of Nomadic Tribe as Thakur/Thakar. These persons lead nomadic way of life, move from village to village. Even Thakur is seen in Kshatriya, Rajput and various other communities in the region. 14) In the light of this situation and as the Full Bench has observed, merely stating that 15 in the School record caste is written as `Thakur’ by itself will not be sufficient to accept the same, to be in the category of scheduled tribes. For this purpose, the candidate has to satisfy the various rigid tests of traits, characteristics and customs for indicating his association to Thakur, Scheduled Tribes. 15) The Thakur community, belonging to Scheduled Tribe, indeed was restricted to 25 tehsils of five districts, i.e. Ahmednagar, Kolaba, Nasik, Pune and Thane of State of Maharashtra. However, the said area restriction, which was in operation from 1.11.1956 to 26.7.1977 is no more in force. The consequence flowing from such removal of area restriction by itself would not allow a person to stake claim to be belonging to Thakur, Scheduled Tribe, unless such person established that his forefathers have migrated from hilly area/tribal area or that they form group of triblals in the particular area. This requirement has been necessitated as Thakur 16 is referred universally for recognition of various castes, and need not be restricted to Thakur, as scheduled tribe. In the light of this situation, needless to add, mere reference of caste as Thakur in the caste column in any school record by itself should not be a sole criterion to define a person to be belonging to Thakur, scheduled tribe. 16) The petitioner – Dattu has tendered School record of his father Namdeo Bandu Thakur of the year 1928, which showed that he belongs to Thakur caste. The contention that it has the presumptive value by itself is difficult to adhere upon. The Committee find that father’s record did not elaborate that Thakur reference is of scheduled tribe. The Committee has referred, the Government of Bombay, vide Government Resolution in General Department No. 9330 dated 29th May, 1933, classified the Backward Classes and list of Backward Classes was scheduled to the said Government Resolution. So 17 far as Tribal Communities are concerned, the list was scheduled in Schedule-II under the head `Aboriginal and Hill Tribes’ and at Sr.No. 26, Thakur Tribe was scheduled. The Committee observed “ Had the petitioner – Dattu’s father originally belongs to Thakur Tribe, his caste as Thakur tribe would have been mentioned in his school record. In the school record, there is no reference whatsoever which indicates that the father of the petitioner - Dattu belonged to Thakur Tribe community.” We subscribe to the observations of the Committee on this score. It is pertinent, that the School Leaving Certificate of petitioner – Dattu’s father Namdeo was issued by Head Master, Zilla Parishad Marathi Mulanchi Shala, Bamnod, Tq. Yawal, District Jalgaon bearing Registration No. 164 Book No. 12, dated 16.3.1998, where the caste is mentioned as Thakur. 17) The petitioner – Dattu also tendered a School Leaving Certificate of his younger brother 18 – Gajanan Namdeo Thakur, in which the caste Hindu (____) (OBC) is mentioned. This document indeed could not have been coined by the petitioner – Dattu or for his son petitioner - Amol or daughter petitioner - Kum.Pratibha, to be decisive document to accept Thakur as scheduled tribe. 18) In the School record of petitioner – Dattu and his younger brother Gajanan, the Vigilance Cell found, no specific caste is mentioned, but their category is mentioned as Hindu _____ (OBC). In the School record of petitioner – Dattu’s elder sister Janabai, he caste is found to have been recorded as Hindu Thakur. The views taken by the Committee, negativing the caste claim, based on the documentation, being a fact finding aspect, do not appear to be arbitrary, erroneous or activated with any influence of error of record. 19) The Committee had also verified the 19 caste certificates of Dattu’s elder brother, cousin uncle and son Amol and daughter Kum.Pratibha respectively. 20) One should not be oblivious, the caste claim of petitioner - Amol and his sister, petitioner – Kum.Pratibha, are subject to scrutiny and are negatived, which is subject of the present writ petitions, cannot be branded to be a best document. 21) The Committee found that petitioner – Dattu or for that purpose petitioner – Amol or Kum.Pratibha, could not prove socio cultural affinity and ethnic linkage towards Thakur, scheduled tribe, appeared at Serial No. 44 in the list of Scheduled Tribes of Maharashtra. 22) The Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes 20 and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, contemplate burden to prove, that the person belongs to such caste, tribe or class, shall be on such claimant/applicant. In this scenario of the matter, it is difficult to only criticize the approach of the Caste Scrutiny Committee and allow the petitioners herein to sit with folded hands and criticize the action. The action desires that the petitioners have to discharge their burden to establish their particular caste. 23) Rule 4 of The Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003, illustrate the procedure to be followed by the Competent Authority while grant of certificate or rejection of application for scheduled tribe certificate. This empowers the Competent Authority to hold an inquiry and to gather the material for ascertaining the foundation of the claim. 21 24) Mr.Malte, learned Counsel appearing for the Caste Scrutiny Committee has referred to the orders in Writ Petition No.1953/2007 ( Deepika Subhash More Vs. State of Maharashtra); reported judgment of the Apex Court in the matter of Lillykutty Vs. Scrutiny Committee, SC & ST and Ors. - (2005) 8 SCC 283; order in Writ Petition No. 2175/2008 ( Kum.Seema S. Bhadekar Vs. State of Maharashtra); order in Writ Petition No. 2320 of 2006 ( Babarao s/o Manikrao Padalwar Vs. The State of Mah. and Ors.); Judgment of the Apex Court in the matter of Raju Ramsingh Vasave Vs. Mahesh Deorao Bhivapurkar and Ors. -2009 (1) Mh.L.1; Judgment in Writ Petition No. 657/1997 (Pandurang Hanmantrao Yesardekar Vs. State of Maharashtra and Ors.) 25) So far as the caste claim of petitioner Amol is concerned, the documents tendered before the Committee for scrutiny are more or less identical to those of his father – Dattu (i.e. petitioner in WP No.7813/2009). In addition, we 22 also find that the School Leaving Certificate of Chhabi Namdeo Thakur and Janabai Namdeo Thakur (i.e. aunts of petitioner – Amol), were tendered, which showed that Aunts of petitioner – Amol belonged to Hindu Thakur as per their school record. The Certificate of Validity of Vinod Vasantrao Suryawanshi issued by the Scrutiny Committee dated 24.3.2000 will not be a criterion to be acted upon in respect of caste claim of petitioner – Amol and the same is on different pedestal. 26) The Committee has found that the documents tendered by the petitioners do not conform to the claim and correctness of the scheduled tribe. A mere fact that documents produced by the petitioners or petitioner – Dattu’s father Namdeo, referred as Thakur or surname is referred as Thakur synonymous to the caste Thakur, is not sufficient to establish that petitioners belong to a scheduled tribe. It was requirement for the petitioners to demonstrate to 23 be a member of the tribe. The Committee evaluated the documents and traits and characteristics, the answers given by the petitioners and the Committee did not approve that they meet requirement to satisfy, to be belonging to Thakur (scheduled tribe). 27) Taking survey of all the facts and considering the documents placed on record, we do not find any infirmity, irregularity in the orders passed by the Caste Scrutiny Committee in rejecting the caste claims of the petitioners. Writ Petition dismissed. Rule discharged. sd/- sd/- (K.U.CHANDIWAL) (NARESH H. PATIL) JUDGE JUDGE bdv/wp7813.09 fldr.11.12.09 Authentic copy (BD VADNERE,PS)