1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH WRIT PETITION NO.5940 OF 2008 Vaibhav s/o. Subhash Thakur, age 21 years, occ. student, r/o. 9-B, Parijat Colony, Deopur, Dhule, dist. Dhule. - - Petitioner versus 1. The State of Maharashtra. 2. The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar. 3. The Sub Divisional Officer, Shirpur Division, Shirpur, district Dhule. 4. Veermata Jijabai Technological Institute (Central Technology Institute), Maharashtra State, Matunga, Mumbai through Dean/Principal. - - - - Respondents. Shri A. S. Golegaonkar, Advocate for petitioner. Shri R. P. Phatke, Addl. Govt. Pleader for respondent No.1. Shri Pravin S. Patil, Advocate for respondent No.2. CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. Dated : 9th October 2009 2 ORAL ORDER [ Per N. D. Deshpande, J. ] : 1. The present petition under Article 226 of the Constitution is directed to quash and set aside the impugned decision/ Order dated 27-8-2008 and declare that petitioner belongs to Thakur- Scheduled Tribe reserved category by issuing appropriate writ. Earlier, petitioner was granted interim relief in terms of prayer (C) restraining the respondents from taking any adverse action till disposal of this petition by Order dated 17-10-2008 passed by this Court. 2. Heard both the sides. Original record of the Scrutiny Committee is made available for perusal by Counsel for the respondent No.2 Scrutiny Committee. 3. The petition came to be filed on 3-10-2008 immediately after respondent No.2 Scrutiny Committee passed the impugned decision and order dated 27-8-2008 thereby rejecting the claim of the petitioner as belonging to Thakur Scheduled Tribe. It has held invalid the Caste Certificate dated 26-10-1999 issued by Sub Divisional Officer, Shirpur and the same was cancelled and confiscated. 3 4. Perused the impugned order of respondent No.2. The findings and the reasons recorded by respondent No.2 Committee were examined in the light of the submissions made by Shri A. S. Golegaonkar, learned Counsel for the petitioner. 5. At the relevant time, petitioner was a student of Jaihind Arts, Science and Commerce College, Deopur, Dhule and his Caste Certificate was referred by the Principal of the said College for verification and its validity. Therefore, petitioner in support of his tribe claim submitted as many as 21 documents along with his application. Those have been also referred by respondent No.2 in its order. The inquiry is also conducted and the Vigilance Cell gave its report along with certain documents and observations and findings. Respondent No.2 Committee mostly relied on the Vigilance Cell report which has admitted that caste of the petitioner's father and grand father is recorded as Hindu Thakur and Thakur in the school record which pertain to period from 1936. - The ordinary place of residence of the applicant is Amalthe, taluka Shindkheda district Dhule. - " Pedkai, Ekviradevi" are their family deities. - The surnames of their relatives are Pawar, Bhamare, 4 Salunke, Thakur, Suryawanshi, Mahale, etc. - The tribe claim of applicant's father and sister has been validated by the Scrutiny Committee, Nashik. 6. According to respondent No.2 Committee, the observations in the report of the Research Officer are not favourable to the petitioner, regarding traits, characteristics, tradition, custom, rituals, festivals, etc for, the information submitted by him is not consistent with Thakur Scheduled Tribe. Ordinary place of resident of petitioner's family is not scheduled for the Thakur Scheduled Tribe community. As such, the report of the Vigilance Cell along with the remarks of the Research Officer were served on the applicant vide Committee's Notice dated 23-7-2008 for calling his explanation which petitioner submitted vide his letter dated 7-8-2008. At the same time, applicant and his uncle were given personal hearing. 7. Upon consideration of the Vigilance Cell report and the observation of the Research Officer aforesaid and after hearing them, the respondent No.2 Committee did not consider his tribe claim which was rejected. 5 8. We have carefully examined the findings recorded by respondent No.2 against the petitioner that there is no documentary evidence and the alleged claim did not sustain by way of affinity test. Consequently, petitioner's Caste Certificate was held invalid and came to be cancelled and confiscated by the Scrutiny Committee. 9. Certain observations are made by the Scrutiny Committee referring to caste entry so far as Thakur in the records is concerned and pointed out that the word "Thakur" is included in the following category - i) Thakur/Thakur (Ka Thakur/Thakar, Ma Thakur/Thakar) is included at Sr.No. 44 in the Scheduled Tribe list. ii) Thakur/Thakar is included in the list of Nomadic Tribe at Sr.No.22. They lead nomadic way of life, move from village to village. iii) Thakur is included in Advanced Caste such as Kshatriya Thakurs, Rajput Thakurs, SIndhi Thakurs. iv) Thakur is also called Balutedar caste such as Grambhat, Bramhabhat. 6 10. The Scrutiny Committee observed that applicant failed to prove his claim as belonging to Thakur Scheduled Tribe listed at Sr.No.44 in the list of Scheduled Tribes in the State of Maharashtra and further observed that documentary evidence alone cannot be relied for proving the tribe claim which needs to be verified in the light of traits, characteristics and custom of the claimant. Learned Scrutiny Committee went on saying : " As a result of removal of area restriction for certain communities many communities having similar nomenclature staying outside the tribal area and also the communities which belong to entirely different ethnic stocks but having similarity of nomenclature started claiming the status of those Scheduled Tribes which were confined to their original habitat in tribal pockets. This trend has become more serious and cognizable as sizable number of such claimants is making endeavor to claim the benefits of constitutional reservations." and insisted on applying affinity test in addition to document, as contemplated by the Hon'ble Apex Court in case of Kumari Madhuri Patil and another vs. Commissioner, Tribal Development reported in AIR 1995 SC 94. It is said that every individual case has to be decided on its own merits. We have gone through long discussion made by the Scrutiny Committee on the 7 point of requirement of affinity test, proof and documentary evidence required for validity, area restrictions for the claim of scheduled tribe, etc. in its impugned order. It also mentioned that documents namely; caste certificates of the applicant and his relatives listed at Sr. Nos.6,7, 12, 16 and 18 are not conclusive proof for grant of validity and moreover, applicant's caste certificate is the subject matter before them. However, it is admitted that documents at Sr. Nos. 19, 20 and 21 are copies of affidavit and certificate of validity in respect of applicant's father and sister which has been issued by the Scrutiny Committee. Recently, applicant's sister Harshada's caste certificate has been validated by the Scrutiny Committee, Nashik on 9-6-2000 and the caste certificate of the applicant's father has been validated on 10-2-2003. Learned Scrutiny Committee did not make any discussion referring to grant of validity certificate in favour of father and sister of the petitioner. They are natural blood relations. Such documents in support of alleged claim ought to have been taken into consideration without further questioning into the affinity test, etc. Unless adverse was found or any illegality noticed while granting the claim of petitioner's father, the rejection of request for validity certificate by Scrutiny Committee on one pretext or the other would not sustain in law. The petitioner being son not only derived caste of his father by birth 8 but certainly, can base his claim on the basis of validity certificate of his father. Therefore, the observations made in the concluding para of the impugned order that the petitioner has not been able to succeed in the affinity test and has not been able to establish his ethnic linkage towards the Thakur Scheduled Tribe community appeared at Sr. No. 44 in the list of Scheduled Tribes in Maharashtra as belonging to Thakur Scheduled Tribe, do not appeal to the reason. Therefore, it is now held that petitioner has made out a case for grant of validity certificate on merits. The petition deserves to be allowed. 11. Rule is made absolute in terms of prayer (B). ( N.D.DESHPANDE, J. ) ( B. R. GAVAI, J. ) pnk/wp594008