(1) wp 2791-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2791 OF 2011 Chetan Yuvaraj Thakur Age : 24 years, Occu.: Service, as Constable B.No. 356 in the Office of Superintendent of Police, Dhule, R/o. Vidya Nagar, Devpur, Dhule, Dist. Dhule PETITIONER VERSUS 1. The State of Maharashtra Department of Tribal Development, Mantralaya, Mumbai-32 Through its Secretary 2. The Scheduled Tribe Scrutiny Committee, Nandurbar Division, Nandurbar, Through its Member Secretary 3. The Sub Divisional Officer, Shirpur Sub Division, Shirpur, Dist. Dhule 4. The Superintendent of Police, Dhule, Dist. Dhule. RESPONDENTS .... Mr. A.S. Golegaonkar, Advocate for the petitioner. Mr. V.D. Godbharle, A.G.P. for the respondent/State. Mr. R.P. Phatke, Advocate for respondent no.2. .... CORAM : D.B. BHOSALE & M.T. JOSHI, JJ. DATE OF RESERVING : 20.04.2011 DATE OF PRONOUNCING : 21.04.2011 (2) wp 2791-11 JUDGMENT (PER - M.T. JOSHI, J.): 1. Heard learned counsel for the parties. 2. By the present Writ Petition, the petitioner seeks quashing and setting aside of the judgment and order of the respondent no.2-Committee, dated 18th March, 2011, whereunder the claim of the petitioner that he belongs to Thakur-Scheduled Tribe (Reserved Category), was invalidated. The petitioner is also seeking a direction to respondent no.4-Superintendent of Police, Dhule, not to take any adverse action like termination of services of the petitioner from the post of Police Constable. 3. The petitioner was able to secure caste certificate from the Sub Divisional Officer, Shirpur, Dist. Dhule, certifying that he belongs to Thakur (ST/44) Tribe, which is recognized as a Scheduled Tribe under The Constitution (Scheduled Tribes) Order, 1950. His caste certificate was sent for scrutiny/verification to respondent no.2-Committee. The respondent no.2-Committee, after making enquiry vide order dated 18th March, 2011 concluded that the (3) wp 2791-11 petitioner has not been able to succeed by way of documentary evidence to prove his tribe claim as well as in the affinity test and has not been able to establish his ethnic linkage towards the Thakur- Scheduled Tribe community appearing at sr. no. 44 in the list of Scheduled Tribes of Maharashtra. Therefore, the caste certificate was invalidated. 4. Mr. Golegaonkar, learned counsel for the petitioner, criticized the reasoning and conclusion of respondent no.2-Committee, during argument on the following grounds, which are being dealt with at the same place. 5. It was submitted that one of the Members of respondent no.2-Committee, who had taken the oral hearing, was transferred and thereafter, no personal hearing was again given to the petitioner. The order of the Committee, however, shows that on 16th June, 2010, the petitioner, his father and uncle were heard fully by the Committee. Their oral statements were recorded separately and the matter was closed for decision. Thereafter, before the decision could be (4) wp 2791-11 passed, the Vice Chairman of the Committee was transferred and the next Committee again called the petitioner for personal hearing before the new coram of the Committee on 14th October, 2010. The petitioner's father and uncle were present on that day. They were re-heard. All of them specifically stated before the Committee that whatever information they had furnished in the earlier hearing, be taken into consideration as they did not want to add anything more. It is thus clear that not only the recorded statements of the petitioner, his father and uncle were before the newly constituted Committee but the petitioner was again given an opportunity for having the personal hearing/enquiry. 6. The next of the submission of the learned counsel for the petitioner was that the caste certificate of petitioner's cousin, in another Writ Petition, was upheld. However, admittedly, no papers in this regard were submitted before the Committee. Neither the pleading in this regard is made in the Writ Petition nor any document is submitted before us in this respect. Vide paragraph 24 in the Writ (5) wp 2791-11 Petition, what is pleaded is that the caste certificate of one Vishal Bhimsing i.e. cousin of the petitioner, was held valid by the Scrutiny Committee at Nasik, which was placed before the Vigilance Cell in the present case and no single contrary evidence is found by the present Committee. The list of the documents referred in the order of respondent no.2- Committee does not show that any such document was filed before the Committee. Therefore, the submission of learned counsel will have to be rejected. 7. The third submission of learned counsel was that, though admittedly area restriction as regards Scheduled Tribes is removed, yet, the respondent no. 2-Committee took into consideration the fact that the petitioner or his forefathers are not domicile of the districts which were earlier provided for as regards the Thakur, Thakar, Ka-Thakar Tribes. The respondent no.2-Committee, however, has rightly concluded that the area restriction was removed in view of the possibility of some of the tribals having migrated from that area and inhabited in the area outside such (6) wp 2791-11 restricted area. It was further concluded on the basis of settled principle of law in this regard that removal of area restriction would not mean that any person who claims to be Tribal outside the area where a particular Community was not found earlier, his claim to be accepted merely on the face of it. It was further concluded that a person coming from Thakur Community will have to establish that he or his predecessors have migrated from such an area and are residing in an area where they were not residing prior to the date of notification of the Presidential Order in respect of removal of area restriction. Admittedly, in the present case the petitioner could not establish that he himself or his forefathers had migrated from the said area. 8. The next of the submission of the learned counsel was that the document regarding grandfather of the petitioner right from 1929 would show that he belonged to Thakur Community, which fact has not been appreciated in proper perspective by the respondent no.2-Committee. However, the respondent no.2- Committee has, in fact, appreciated the said document (7) wp 2791-11 as could be seen from internal page no.15 (d) of the impugned judgment. The Committee has pointed out that the said document does not show that the grandfather of the petitioner belonged to Thakur Scheduled Tribe. 9. It is an admitted fact that the grandfather, father and the petitioner himself hail from Dhule district. There was no evidence before the Scrutiny Committee that the grandfather had migrated from the prescribed area in the Presidential Order of 1956 before the removal of area restriction. The Committee further found that all the birth and school record of the petitioner, his father, real brother and other relatives show that merely the caste “Thakur” is recorded in the same. The information furnished by the petitioner shows that his forefathers as well as relatives are traditional residents of Dondaicha, Dhule, Sindkheda, Nandurbar and Amalner, which are not the places scheduled for Thakur Scheduled Tribe in the Presidential Orders of 1956 and 1960 i.e. prior to the removal of area restrictions. (8) wp 2791-11 10. Thus, all the material on record shows that no ethnic linkage could be established and the petitioner also failed in the affinity test. 11. In the circumstances, the Committee rightly observed that “Thakur” caste is also found in non- tribal communities such as Kshtriya Thakur, Rajput Thakur, Pardeshi Thakur, etc., and unless the petitioner establishes ethnic linkage and affinity test to prove that he belongs to Thakur Tribe, the certificate cannot be validated. 12. Before us, learned counsel for the petitioner relied upon the decision in "Amol Narayan Wakkar and another vs. State of Maharashtra and others" 2005 (1) Mh.L.J. 798. In that case, however, the petitioner belonged to Sindhudurg district which was earlier part of Ratnagiri district that is the area prescribed under the earlier Orders and, therefore, inter alia relying on the said fact, it was held that the petitioner therein belonged to Thakur Scheduled Tribe. (9) wp 2791-11 13. Learned counsel further relied on "Shilpa Vishnu Thakur vs. State of Maharashtra and others" 2009 (3) Mh.L.J. 995, wherein inter alia it was held that the Scrutiny Committee should not confine itself to an examination of the birth and the school records but would involve an investigation of the affinity of the candidate with a tribe or the tribal community. In the present case, however, the very order of the Scrutiny Committee reveals that in-depth investigation was carried in this regard. The information given by the petitioner, his father and uncle is recorded at page 10 of the order, which showed that the information furnished is not in conformity with the traits, characteristics of Scheduled Tribe. 14. Learned A.G.P. relying on the ratio laid down by this Court in "Shri Murlidhar Ramkrishna Gathe vs. State of Maharashtra and others" (Writ Petition No. 2748/2000, decided on 18th January, 2007), submitted that the burden of proving that the person belongs to a particular tribe or caste lies (10) wp 2791-11 heavily on that person seeking the certificate and if the material and information on traits, characteristics, customs, deities and other information did not relate to Thakur Scheduled Tribe, further verification of that material normally would be uncalled for. It was further submitted that as the Committee with whom the experts are associated and were conversant with the anthropological and ethnological traits and other characteristics of the community, rules out the association of the claimant to that community, the burden is on the petitioner to establish it otherwise. In the present case, however, that burden has not been discharged by the petitioner. 15. In the above circumstances, we do not find any error or perversity in the reasoning given by the respondent no.2-Committee. The Petition is therefore dismissed. [M.T. JOSHI, J.] [D.B. BHOSALE, J.] NPJ/wp2791-11 (11) wp 2791-11