1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 7271 OF 2009. Kumari Kavita D/o Baliram Wagh, Age 20 years, Occu. Student, R/o 42, Jagannath Nagar, Nalva Road, Nandurbar, Tq. & Dist. Nandurbar. .. PETITIONER. VERSUS 1) The State of Maharashtra, Department of Tribal Development Department, Mantralaya, Mumbai-32. Through its Secretary. 2) The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar. 3) The Sub Divisional Officer, Dhule Sub Division, Dhule. 4) North Maharashtra University, Jalgaon Dist. Jalgaon through its Registrar. 5) The Dean, Department of Chemical University Technology, North Marashtra University, Jalgaon, Dist. Jalgaon. . RESPONDENTS. ... Shri A.S. Golegaonkar, Advocate for Petitioner. Smt. A.V. Gondhalekar, Assistant Government Pleader, for respondent Nos. 1 & 3. Shri U.S. Malte, Advocate for respondent No. 2. 2 CORAM : A.M. KHANWILKAR AND S.S. SHINDE, JJ. 24th FEBRUARY, 2010. ORAL JUDGMENT: (Per Shinde,J.) 1. Heard Learned Counsel appearing for the respective parties. 2. Rule. Rule is made returnable forthwith. The learned Counsel for respective respondents waive notice. With the consent of the parties, heard finally at the stage of admission. 3. This Writ Petition takes exception to the decision dated 14-10-2009 passed by the respondent No. 2 i.e. the Scheduled Tribe Scrutiny Committee, Nandurbar Division, Nandurbar, thereby invalidating the tribe claim of the petitioner that she belongs to “Thakur- Scheduled Tribe’. 4. The petitioner applied for issuance of Tribe Certificate as “Thakur-Scheduled Tribe” to the competent authority i.e. Sub Divisional 3 Officer, Dhule. The Sub Divisional Officer, Dhule Sub Division, Dhule issued tribe certificate of “Thakur-Scheduled Tribe” to the petitioner on 18-12-2000. 5. It is the case of the petitioner that she belongs to “Thakur-Scheduled Tribe”. The petitioner was admitted in the academic year 2006-2007 to B.Tech.(Paint) course in respondent No.5 college. Throughout school record, the caste of the petitioner is recorded as “Thakur- Scheduled Tribe”. It is further case of the petitioner that in the basic school record of grand-father, father and other close blood relatives and petitioner herself, the caste is recorded as “Thakur”, and thus, the family status of the petitioner, even prior to the Presidential Order of 1950 is shown as “Thakur”. It is further case of the petitioner that, the respondent -Committee has issued caste validity certificate on 21-7-2005 in favour of Kumari Priyanka Baliram Wagh, real sister of the petitioner. The said caste validity certificate 4 was issued after an inquiry through the Vigilance Officer. 6. The caste claim of the petitioner’s cousin uncle Shri Bhausaheb Tulshiram Wagh is also held valid by the Caste Scrutiny Committee, Nashik. So far as petitioner's tribe claim is concerned, the respondent-Committee called the petitioner for interview on 15th July, 2009, and accordingly, the petitioner has attended office of the respondent-Committee and submitted detailed reply. In the said reply the petitioner herein replied the Vigilance Cell report and comments of Research Officer. The petitioner has elaborately answered each and every point raised by Research Officer. The petitioner has stressed on the point of documentary evidence which she has already submitted, out of which some documents were prior to 1950 in respect of her grand-father and cousin grand-father. The birth extract of petitioner's grant-father shows his caste as “Thakur”. The petitioner has also submitted school records of her close blood relatives, wherein the caste is clearly mentioned 5 as “Thakur”. According to the petitioner, there is no single contra evidence in respect of family status of the petitioner brought on record by the respondent-Committee. In spite of above mentioned facts and circumstances, the respondent-Committee rejected the Tribe claim of the petitioner. It is further case of the petitioner that after the orders passed by this Hon’ble Court in Writ Petition No.7260/2006, the petitioner’s result of first year and second year was declared. 7. Though the petitioner has taken number of grounds in the petition, the counsel appearing for the petitioner mainly relied on three grounds. Firstly, it was not proper on the part of respondent-Committee to ignore and discard the evidence in the matter of validity certificate issued by the Scrutiny Committee in favour of real sister of the petitioner and that too, when there is no any single contra evidence to reject the claim of the petitioner; Secondly, it is an arbitrary action on the part of the respondent 6 -Committee to reject the claim of the petitioner when there is no single contra evidence on record; and thirdly, the respondent-Committee has not properly considered the documentary evidence in support of the family status of the petitioner from the year 1924 in respect of grand-father, father and petitioner herself, wherein the school record shows their caste as “Thakur”. On the basis of above mentioned three grounds, the learned counsel appearing for the petitioner would submit that, this petition deserves to be allowed. 8. The learned counsel appearing for the respondent-Committee would submit that, the respondent-Committee has properly appreciated the entire evidence brought on record, and after affording personal hearing to the petitioner, passed the impugned decision and no interference is warranted under Article 226 of the Constitution of India. The learned counsel would further submit that, each case has to be decided separately and validation certificate of the real sister cannot be the basis for validating the 7 caste claim of the petitioner. It is further contended that, this Court as well as Apex Court in various pronouncements held that in order to find out whether the candidate really belongs to Scheduled Tribe, it is necessary to have affinity test as well as inquiry by the Vigilance Cell. It is further contended that, merely because word “Thakur” is included as entry No.44 in the Presidential Order, that itself would not entitle the petitioner to claim validity of her certificate as “Thakur-Scheduled Tribe”. 9. We have heard the respective counsel at length. We have also carefully perused the documents placed on record and decision of the respondent-Committee so as to set at rest the controversy involved in the petition. It is not in dispute that the word “Thakur” appears in entry No.44, which reads thus:- “44. Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar” It is also not in dispute that word “Thakur” 8 finds place in the copy of school leaving certificate in respect of Shri Dhondu Ghansham Thakur grand-father of the petitioner dated 02-02-1924, documents from serial Nos. 21 to 25 produced before the respondent-Committee would show the word “Thakur” mentioned in all those documents which belongs to grand-father of the petitioner namely Dhondu Ghansham Thakur, the cousin grand-father namely Tulshiram Ghanshm Thakur. The said documents are mentioned herein below : 1] A copy of an extract of Birth Register, wherein male child is shown to have born to Shri Ghanshayam Sakharam, caste is recorded as Thakur on 16-4-1915. 2] A copy of School leaving Certificate in respect of Shri Dhondu Ghanshyam Thakur, grandfather of the applicant, dated 02-02-1924, wherein his caste is recorded as Thakur. 3] A Copy of an extract of School Admission register in respect of Shri Dhondu Ghanshyam Thakur, grandfather of the applicant, dated 02-02-1924, where his caste is recorded as Thakur. 4] A copy of school School Leaving Certificate in respect of Shri Tulshiram Ghanshyam Thakur, dtaed 10-08-1930, wherein his caste is recorded as Thakur. 5] A Copy of an extract of School admission register in respect of Shri Tulshiram Ghanshyam Thakur, cousin 9 grandfather of the applicant dated 10-08-1930, wherein his caste is recorded as Thakur. 10. It is also not in dispute that the caste validity certificate has been issued in favour of the real sister Priyanka Baliram Wagh by the Caste Scrutiny Committee dated 21-07-2005 as also in favour of Bhausaheb Tulshiram Thakur dated 20-02-1999. It is also not in dispute that, said documents were placed on record by the petitioner along with affidavit of her sister mentioning relationship with the petitioner. Therefore, on the above undisputed facts, we proceed to decide this petition. 11. At this juncture, it would be relevant to refer the observations by the Apex Court in case of “Ku.Madhuri Patil & another V/s. Additional Commissioner, Tribal Development and others, reported in (1994) 6, SCC 241” more particularly, para No.10 of the said judgment, which reads thus :- “ The entries in the school register preceding the Constitution do furnish 10 great probative value to the declaration of the status of a caste. Hierarchical caste stratification of Hindu social order has its reflection in all entires in the public records. What would, therefore, depict the caste status of the people inclusive of the school or college records, as the then census rules insisted upon. Undoubtedly, Hindu social order is based on hierarchy and caste was one of the predominant factors during pre- Constitution period.” 12. Therefore, the documents in respect of grand-father, cousin grand-father of the petitioner, which were produced on record, unequivocally indicate that the word “Thakur” appears in their school record as well as other record which is prior to 1950. 13. As stated here-in-above, it is not in dispute that, the Caste validity certificate has been issued in favour of sister of the petitioner as well as cousin uncle of the petitioner and to that effect the said certificates were placed on record. The Affidavit of the sister namely Priyanka Baliram Wagh finds place at serial No. 11 44 in the documents submitted before the respondent-Committee. The caste validity in respect of Shri Bhausaheb Tulshiram Thakur issued by Caste Scrutiny Committee, Nashik finds place at Serial No.30. All these documents were placed before the respondent-committee. It appears from the pleadings in the petition that, before the validity certificate was issued in favour of the of the sister of the petitioner, the Vigilance Cell report was on record and taking into consideration said Vigilance Cell report, the caste validity certificate of the sister namely Priyanka was validated by the respondent-Committee, Nashik Division, Nashik. Therefore, in our considered view, at least there are two documents on record which show that the caste validity of real sister of the petitioner as well as caste validity of the cousin uncle of the petitioner has been tested, and thereafter, certificates were issued in their favour. This position is not disputed by the counsel appearing for the respondent-committee. 14. We find considerable force in the 12 submission of the counsel appearing for the petitioner that no contra document or evidence was brought on record, which would dis-entitle the petitioner from her claim as “Thakur- Scheduled Tribe”. The Apex Court in case of “Gayatrilaxmi Bapurao Gagpure Vs. State of Maharashtra & others, reported in (1996) 3 SCC 685” held that :- “ The rejection of the appellant’s claim especially when there is no other evidence placed contra to suspect the proof produced by the appellant and without appreciating the vital document placed before the Committee, was not correct. The High Court also erred in dismissing the writ petition filed by the appellant by simply accepting the conclusions reached by the Committee without appreciating the probative value of the documents placed before it. In this case, except the documents produced by the appellant, nothing has been produced by the authorities concerned to arrive at different conclusion. By a wrongful denial of the caste certificate to the genuine candidate, he/she will be deprived of the privileges conferred upon him/her 13 by the Constitution. Therefore greater care must be taken before granting or rejecting any claim for caste certificate. Though in cases of this type, the burden heavily lies on the applicant who seeks such a certificate, but that does not mean that the authorities have no role to play in finding out the correctness or otherwise of the claim for issue of a caste certificate. The authorities concerned must also play a role in assisting the Committee to arrive at a correct decision.” 15. Viewed from any angle, in the facts and circumstances of this case, it clearly appears that the respondent-Committee has utterly failed to appreciate the documents on record, affidavit filed by the petitioner and also arguments advanced before the respondent-Committee in support of caste claim of the petitioner. The impugned decision of the respondent Committee is not sustainable in law and the same deserves to be quashed and set aside. 16. In the result, the petition is allowed. The impugned decision of the Respondent No.2 - 14 Committee is quashed and set aside. It is hereby declared that, petitioner belong to “Thakur- Scheduled Tribe” and the Scrutiny Committee is hereby directed to issue caste validation certificate as “ Thakur-Scheduled Tribe to the petitioner. Rule made absolute, accordingly. [ S.S. SHINDE, J ] [ A.M. KHANWILKAR, J ] SDM/*WP7271.09/25-02-10 15 WRIT PETITION NO.7271 OF 2009. Date of decision :24th February, 2010. For approval and signature. THE HONOURABLE SHRI JUSTICE A.M. KHANWILKAR. THE HONOURABLE SHRI JUSTICE S.S. SHINDE. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } Yes/No 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [S.D. MULAVEKAR] Personal Assistant to the Honourable Judge.