High Court · 2025
Facts
1 03.WP No.1600-2008.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No. 1600/2008withCivil Application No.507 of 2017and Civil Application No.5436 of 2023….Nitin S/o. Pauladsingh Pawar,Age : 45 years, Occ.Service,R/o. Vidya Nagar, Dondaicha,Tq.Sindkheda, Dist.Dhule. ...PetitionerVersus1.The State of Maharashtra,Through the Secretary,Tribal Development Department,Mantralaya,Mumbai-32.2.The Scheduled Tribe CasteCertificate Verification Committee,Through its Chairman/Director,Nashik Division Nashik.3.The Taluka Executive MagistrateTahsil Office, Shindkheda,Dist.Dhule. 2 03.WP No.1600-2008.doc 4.The Superintending Engineer,Mah.State Electricity Distribution Co.Ltd.Dhule. ...Respondents...Advocate for Petitioner : Mr. A.S.GolegaonkarAddl.GP for Respondent/State : Mr. P.S.Patil… CORAM : S.G.MEHARE & SHAILESH P. BRAHME, JJ. RESERVED ON : 03rd MARCH 2025 PRONOUNCED ON : 13th MARCH 2025JUDGMENT [Per Shailesh P. Brahme, J.] :1.Rule. Rule is made returnable forthwith by the consent ofthe parties. Heard both sides finally.2.Petitioner is challenging judgment and order dated27.04.2007 passed by the Scrutiny Committee invalidating histribe certificate of Scheduled Tribe ‘Thakur’. Petitioner hasrelied on the validities issued to Hiralal Kashiram Thakur andSonal Limba Thakur, paternal relatives of the petitioner. He isalso relying on the pre-independence record of his fatherPauladsingh Krushna Pawar of 22.06.1938 and of uncleKashiram Krushna Thakur of 08.09.1931. He is relying on theorder passed in the matter of Milindkumar Pauladsingh Pawaron 08.11.2006 in Writ Petition No.2124 of 1996.
Legal Reasoning
9 03.WP No.1600-2008.doc any further inquiry into such a claim. In the case at hand, theCommittee recorded a finding that the petitioner had claimed to belongto Thakar Scheduled Tribe and the claim was subjected to verificationby the Committee which recorded a finding on adjudication of this claimthat the petitioner belonged to "Hindu Thakar" caste which falls in theOther Backward Classes. The petitioner has challenged this finding onthe ground that once he was found to be belonging to the "Thakar caste"it was incompetent for the Committee to give any further declarationregarding his social status and to hold that the claimant belonged to"Hindu Thakar" caste - a non-tribal group. If the Committee wassatisfied that the claimant did not belong to Thakar caste, it had thepowers to give a declaration accordingly. It certainly did not have thepowers to give a further declaration and that too contrary to thepetitioner's claim that he belonged to Hindu Thakar caste. Thesesubmissions have considerable force and we agree that once theCommittee recorded a finding that the claimant belongs to Thakar casteit had no jurisdiction to give any further declaration and the only courseavailable to it in such cases was to validate the claimant's social statusas belonging to the Scheduled Tribe (entry no. 44). It is for thesereasons that the impugned order is contrary to law and the ScrutinyCommittee has fallen in serious error in denying the petitioner'sScheduled Tribe claim. The said order is, therefore, unsustainable andit requires to be quashed and set-aside..We are in agreement with the views expressed by the Co-ordinate Bench.15.A useful reference can be made to judgment of another co-ordinate bench in the matter of Prakash Shrawan Deore vs.Scheduled Tribe Certificate Scrutiny Committee and Anr.reported in 2020(1) Bom.C.R.205. Following are the relevantextracts:8.The Division Bench of this Court in the judgment and order passed inthe said petition referred to the documents which were discussed 10 03.WP No.1600-2008.doc hereinabove and found that, though in some documents 'Hindu' wasmentioned, the same entry related to the religion of the Petitioner'sforefathers and the caste was Thakur'. After considering the entirematerial and the judgment of the Hon'ble Apex Court in the case ofPalghat Jilla Thandan Samudhaya Samrakshna Samithi vs. State ofKerala: 1994(1)SCC 359, the Division Bench observed in paragraphs 5, 6and 7 thus: "5. In the Presidential Order, Thakur tribe has been categorised asScheduled Tribe at Serial No. 44. It would, thus, not be open to either theState Government or to the Court to hold that Thakur does not belong toScheduled Tribe. In the instant case, petitioner has been found to belong toThakur Community but has been held to belong to a non-tribal group. Thisis specifically prohibited under the aforesaid judgment of the SupremeCourt. 6. In the instance case, the documentary evidence produced by thepetitioner shows that the petitioner belongs to Thakur. Thakur in theaforesaid entry at Serial No. 44 in the Presidential Order is shown tobelong to Scheduled Tribe. It will, therefore, be not open either to the StateGovernment or to any Court to hold that the said Thakur does not belongto Scheduled Tribe but to a high caste. 7. In the circumstances, the impugned order, which is annexed atExhibit 'B' to the petition, is quashed and it is declared that the Petitionerbelongs to Thakur Scheduled Tribe."Not only this but also the scrutiny committee at Nashik videorder dated 5th October, 1999, after considering the judgment and order ofthe Division Bench of this Court in the case of Pitambar Deore (supra) heldthe claim of the Pitambar's son, namely Rajesh, to be valid.10.The aforesaid observations are not only contrary to the law laid downby the Hon'ble Apex Court in the case of Palghat (supra) but also totally inignorance of the observation made by the Division Bench of this Court inthe case of the Petitioner's father's real brother, namely Pitambar. Thecommittee could not have ignored the said observations. As a matter offact, in view of the judgment of this Court in the case of Apoorva Nichale(supra) in view of the validity in favour of the Petitioner's close bloodrelatives, the committee ought to have granted validity in favour of thePetitioner. Undisputedly, the decision of the committee is dated 9th 11 03.WP No.1600-2008.doc January, 2013 i.e. after the judgment of the Division Bench in the case ofApoorva Nichale (supra).12. No doubt that the learned AGP relied on the judgment of the FullBench of this Court in the case of Shilpa Thakur (supra) that the claimcannot be decided only on the basis of the documentary evidence but theaffinity test also plays an important role. However, it is to be noted that thejudgment of the Full Bench in the case of Shilpa Thakur is dated 7th May,2009, whereas the judgment of Anand Kathole is delivered by the Hon'bleApex Court on 8th November, 2011. In the case of Rashmi MetaliksLimited and anr. vs. Kolkata Metropolitan Development Authority and ors.(2013) 10 SCC 95, the Hon'ble Apex Court has frowned upon the practice oflawyers citing multiple judgments in support of a proposition of law. Anysincere student of law, leave aside a practising lawyer, who has put anumber of years at the bar, is expected to know that the judgment of HighCourt, including the judgments delivered by the Full Bench, which hastaken a view, which is contrary to the view taken by the Hon'ble ApexCourt, subsequently, the earlier judgment stands impliedly over-ruled. Wedo not understand the propriety in citing the judgment which is impliedlyover-ruled.16.Reference to paragraph No.12 of above referred judgmentcan be had to reject the submission of learned AGP for overemphasizing on Shilpa Vishnu Thakur (supra). The findingsrecorded by the Committee in respect of area restrictions areunsustainable in view of judgment of Supreme Court in thematter of Palghat Jilla Thandan Samudhaya SamrakshanaSamithi and Anr. Vs. State of Kerala and Anr. reported in 1994(1) SCC 359 and Jaywant Pawar vs. State of Maharashtra inSpecial Leave to Appeal No.2627 of 2010.17.We are of the considered view that petitioner has madeout a case for causing interference in the impugned judgment 12 03.WP No.1600-2008.doc and order. We therefore pass following order :ORDER A) Writ Petition is allowed.B) The Judgment and order dated 27.04.2007passed by Scrutiny Committee is quashed and set-aside.C) The Respondent/Scrutiny Committee shall issuetribe validity certificate of ‘Thakur’ Scheduled Tribeforthwith to the petitioner.D) Civil Applications stand disposed of.E) Rule is made absolute in above terms.[ SHAILESH P. BRAHME, J.] [ S.G.MEHARE, J.] VSJ
Arguments
3 03.WP No.1600-2008.doc 3.Learned counsel Mr.Golegaonkar appearing for thepetitioner submits that the pre-constitutional record which wasverified during the vigilance has not been doubted by theCommittee. It has a greater probative value and it would enureto the benefit of the petitioner. He would further submit thatpetitioner’s real brother Milindkumar was denied the validitycertificate by the Scrutiny Committee. Against that he hadpreferred appeal before Additional Commissioner, NashikDivision,Nashik.His appeal was allowed on 27.01.1993 holdinghim eligible to Scheduled Tribe ‘Thakur’ validity. The saidjudgment was sought to be reviewed by issuing notice on11.05.1993. It was challenged before the co-ordinate Bench inthe above referred matter and it was quashed. It is furthersubmitted that the findings recorded by the scrutiny committeeregarding affinity test and the area restrictions areunsustainable.4.Learned counsel for the petitioner relies on the latestjudgments of the Supreme Court in the matters of MaharashtraAdiwasi Thakur Jamat Swarkshan Samiti vs. State ofMaharashtra and others reported in (2023) 2 Mh.L.J.785,Baburao Rajaram Shinde vs. State of Maharashtra and othersreported in (2002)4 Mh.L.J.310 and Pandurang RangnathChavan vs. State of Maharashtra and others reported in [1998(2)Mh.L.J806]. 4 03.WP No.1600-2008.doc 5.Per contra, learned AGP Mr.Patil supports the impugnedjudgment and order. He has tendered on record the original filesof the petitioner and the earlier validity holders in the family. Hewould submit that Milind Kumar, petitioner’s brother was neverissued with validity certificate. There was no confirmation of theorder passed by the appellate authority on 27.01.1993. It isfurther submitted that the validities issued to Hiralal and Sonalare unreliable because due procedure of law was not followed intheir cases. It is vehemently submitted that the old school recordwhich is pressed into service only shows entry of Thakur but thatis merely synonymous to the Scheduled Tribe Thakur but in fact itis upper-caste Thakur. He would submit that affinity test wasbeing conducted by the expert persons and the petitioner failed toget through the same.6.Learned AGP would further submit that full-bench judgmentin the matter of Shilpa Vishnu Thakur Vs. State of Maharashtraand Others reported in (2009) 5 AIR Bom R.478 still holds thefield. The affinity test in a given circumstance needs to befollowed. All core issues decided by full bench in the matter ofShilpa Vishnu Thakur Vs. State of Maharashtra and Others(supra) have not been answered by the Supreme Court in thematter of Maharashtra Adiwasi Thakur Jamat Swarkshan Samitivs. State of Maharashtra and others reported in 2023(2)Mh.L.J.785. These matters are sub-judice before Supreme Courtfor the left out issues of Shilpa Vishnu Thakur (supra). 5 03.WP No.1600-2008.doc 7.We have considered rival submissions of the parties. Wehave gone through relevant documents on the record from thepaper-book as well as original files produced before us.8.The petitioner is relying on the validities issued to hiscousin Hiralal Kashiram Thakur and niece Sonal LimbaThakur. The relationship has not been disputed by therespondents. In case of Hiralal, it transpires that vigilanceinquiry was conducted. He was issued with validity certificateby order dated 30.04.2003. It can not be said to be a reasonedorder. The documentary evidence has not been dealt with bythe Committee. Only reliance is placed upon certain previousdecisions of the High Courts and the Supreme Court.9. In case of Sonal Limba Thakur, we notice similar type ofcryptic order was passed by the Scrutiny Committee grantingvalidity without their being any discussion on the materialpressed into service by the claimants. Apparently, bothvalidities of Hiralal and Sonal can not be relied upon justbecause those validities are still intact. There is want of dueprocedure of law, appreciation of material by the committeeand reference to the affinity test. We accept the submissions oflearned AGP that those validities are not reliable.10.In the present case, the petitioner’s real brother 6 03.WP No.1600-2008.doc Milindkumar’s tribe claim was rejected by the ScrutinyCommittee by order dated 01.10.1992. Being aggrieved he hadpreferred appeal before Additional DivisionalCommissioner,Nasik Division Nasik. His appeal was allowedvide reasoned order dated 27.01.1993. Considering materialplaced on record, he was held to be belonging to the ‘Thakur’Scheduled Tribe. The appellate authority considered pre-constitutional school record of his father. It’s a fact that afterthe decision of the appellate authority, he was not issued withvalidity certificate by the Scrutiny Committee. However, in sumand substance the tribe claim of Milindkumar was accepted andabsolute finding was recorded that he was belonging to theScheduled Tribe ‘Thakur’. Issuance of validity certificate to himis a mere formality which could not be done for the reasons bestknown to the parties. In all probability the concerned claimantalso might not have persuaded the authorities for issuing thevalidity certificate. We do not accept the submissions of learnedAGP that just because there was no validity issued toMilindkumar, the judgment passed by the appellate authoritywould not enure to the benefit of the petitioner.11.It’s a matter of record that the school record ofpetitioner’s father of 22.06.1938 and that of his uncleKashiram Krushna Thakur of 08.09.1931 was consideredduring the vigilance and no doubt was expressed about itsgenuineness either in the vigilance report or by the Committee. 7 03.WP No.1600-2008.doc In view of judgment of Supreme Court in the matter of AnandVs. Committee For Scrutiny and Verification of Tribe Claims andOthers reported in (2012) 1 SCC 113, these documents are havinggreater probative value and those would enure to the benefit ofthe petitioner.12.Learned AGP has taken us through affinity test. It wasconducted by the experts. The petitioner could not withstand thetest. It is contended that in view of decision of full-bench in ShilpaVishnu Thakur (supra), the affinity test is decisive. Byconsidering the judgment in Shilpa Vishnu Thakur (supra),Supreme Court decided in the matter of Maharashtra AdiwasiThakur Jamat Swarkshan Samiti vs. State of Maharashtra andothers reported in 2023(2) Mh.L.J.785, affinity test is not alitmus test. We are bound by the decision in Maharashtra AdiwasiThakur Jamat Swarkshan Samiti (supra). In the present facts ofthe case when there is pre-constitutional record and validity ofreal brother Millindkumar supporting the petitioner’s claim, theresult of the affinity test is inconsequential.13.It is canvassed by learned AGP that all contours of full-bench judgment in Shilpa Vishnu Thakur (supra) has not beendealt with by Supreme Court in Maharashtra Adiwasi ThakurJamat Swarkshan Samiti (supra). Few issues are left to bedecided and for that purpose matters are pending in the SupremeCourt. We have already dealt with this submission in Writ PetitionNo.9283 of 2012 and observed as follows : 8 03.WP No.1600-2008.doc 16.According to the learned Additional GP, all the issues are not answered ordealt with by the Supreme Court in the matter of Maharashtra Adiwasi ThakurJamat Swarakshan Samiti (supra), which were addressed by the Full Bench ofBombay High Court in the matter of Shilpa Vishnu Thakur (supra). Thissubmission is absurd. It is difficult to accept that only few issues are dealt withand few are left unanswered. The possibility of re-visiting the earlier decision ofHigh Court or Supreme Court cannot be ruled out in future, but that does notmean that this Court should wait for inordinate period till decision on a particularissue is handed down. 17.Even if for time being the submission is accepted that issue of Thakur wouldnot conclusively amount to Scheduled Tribe Thakur is subjudice before theSupreme Court but that does not preclude this Court from deciding the matters.Therefore we reject the submission of Mr. Pravin Patil that still few issues aresubjudiced before the Supreme Court and judgment in the matter of MaharashtraAdiwasi Thakur Jamat Swarakshan Samiti (supra) is not final verdict. .In view of the above observations, we can not accept thesubmission of learned AGP.14.In the wake of the facts that pre-constitutional record andvalidity of Milind kumar are corroborating the tribe claim, we cannot accept the submission of learned AGP that reference toThakur in the school record is only synonymous to entry atSr.No.44 of the Constitutional order. Learned counsel for thepetitioner has referred to judgment of Baburao Rajaram Shindevs. State of Maharashtra and others reported in (2002)4Mh.L.J.310. It’s relevant paragraph is as follows :32. The Scrutiny Committee has limited role to investigate whether theclaimant before it belongs to "Thakur or Thakar" caste and on that basisit may take steps as are mandated by law laid down by the SupremeCourt in Kum. Madhuri Patil's case, AIR 1995 SC 94. On adjudication ifthe Committee records a finding in the affirmative, it has to certify thatthe claimant belongs to the Scheduled Tribe and it cannot venture into