High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD917 WRIT PETITION NO.1956 OF 2006Bharatsingh Shivsingh Bainade,Age 43 yrs., Occ. Business,R/o Palshi, Tq. Sillod, Dist. Aurangabad. … Petitioner… Versus …1The State of MaharashtraThrough its Secretary,Tribe Development Department,Mantralaya, Mumbai – 32. 2The Scheduled Tribe CertificateScrutiny Committee, Aurangabad Division, AurangabadThrough its Member – Secretary. 3The Tahsildar and Taluka Executive Magistrate,Sillod, Tq. Sillod,Dist. Aurangabad. … Respondents...Mr. V.R. Awate, Advocate h/f Mr. S.B. Talekar, Advocate for petitionerMr. P.S. Patil, AGP for respondent Nos.1 to 3...WITH
Legal Reasoning
2WP_1956_2006_Jd+1WRIT PETITION NO.1637 OF 2002Santoshsingh Diwansingh Chavan,Age 19 yrs., Occ. Student,R/o N-11/E-126, Mayurnagar,HUDCO, Aurangabad.… Petitioner… Versus …1The State of Maharashtra2The Committee for Scrutiny andVerification of Tribe ClaimsThrough its Member SecretaryAurangabad. 3The Government Engineering College,Through its Principal,Aurangabad. 4The Taluka Executive Magistrateand Tahsildar, Aurangabad. … Respondents...Mr. V.R. Awate, Advocate h/f Mr. S.B. Talekar, Advocate for petitionerMr. P.S. Patil, AGP for respondent Nos.1 to 4...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.DATE:19th JANUARY, 2024 3WP_1956_2006_Jd+1JUDGMENT :(PER : SMT. VIBHA KANKANWADI, J.)1Rule. Rule made returnable forthwith. Heard learned Advocatesfor the parties finally, by consent. 2The Tribe Claim of both the petitioners as belonging to ‘Thakur’Scheduled Tribe has been invalidated and hence, both the petitioners arebefore this Court. The Committee by the impugned order, after consideringthe Vigilance Cell inquiry, giving opportunity to the petitioners to explain thecontra entries has observed that the petitioners are ‘Bhat’ and not ‘Thakur’. 3The learned Advocate for the petitioners has vehementlysubmitted that the Committee ought to have considered that ‘Bhat’ or ‘Bhats’Tribe was part and parcel of ‘Thakur’ community. ‘Thakur’ was also known as‘Bhat’ or ‘Brahma Bhat’ or ‘Gramjoshi’. The petitioners are relying uponcertain authors’ book to support their contention. Both the petitioners arecontending that no proper personal hearing has been given after they hadfiled the reply to the show cause notice upon the basis of the Vigilance Cellreport. Both of them are contending that the school records have not beenconsidered properly by the Committee. According to the petitioners, thedocuments before the Scrutiny Committee show that they are ‘Thakur’Scheduled Tribe community. 4WP_1956_2006_Jd+14Learned Advocate for the petitioners in support of petitionerSantoshsingh Diwansingh Chavan has produced document of his relative i.e.the order passed by the Caste Scrutiny Committee in favour of Mr.Chandrakant Nathu Thakur granting him validity and also submitted thattheir ancestor Zipru Fattesingh Thakur’s school record shows that he is‘Thakur’ by Tribe and the date of his admission in the school was 01.07.1917.It is a pre-constitutional document. Their another relative Madhav BudhaWankhede, whose document is also pre-constitutional document regardingthe school record i.e. 01.07.1922 shows that he was ‘Hindu Thakur’ and,therefore, by mere mention of ‘Thakur’ will not disentitle the petitioners fromestablishing their claim as belonging to ‘Thakur’ Scheduled Tribe. 5Learned Advocate for the petitioners has relied on the decision inPrakash Shrawan Deore vs. Scheduled Tribe Certificate Scrutiny Committee,Nashik and another in Writ Petition No.2363 of 2013 decided by this Court atPrincipal Seat on 22.02.2019, wherein it has been observed that the decisionin Smt. Monika d/o Satish Thakur vs. The State of Maharashtra and others inWrit Petition No.10123 of 2010 dated 04.05.2018 is per incurium in law. TheHon’ble Apex Court in Anand vs. Committee for Scrutiny and Verification ofTribe Claims and others [(2012) 1 SCC 113] has held that with themigrations, modernization and contact with other communities, the tribal
Decision
5WP_1956_2006_Jd+1tend to develop and adopt new traits which may not essentially match withthe traditional characteristics of the tribe. The affinity test is not a litmus testfor establishing the link of the applicant with a Scheduled Tribe. 5.1He further relied on the decision in Chaitanya Satish Dervre vs.The State of Maharashtra and others in Writ Petition No.12574 of 2019decided by this Bench on 03.01.2024, wherein the claim of the petitionertherein as belonging to ‘Thakur’ Tribe has been upheld. The writ petition wasallowed and the Committee was directed to issue the validity certificate.5.2He further relied on the Three Judge Bench decision of Hon’bleApex Court in Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti vs. TheState of Maharashtra and others in Civil Appeal No.2502 of 2022 decided on24.03.2023, wherein it has been held that each and every time the VigilanceCell report is not required to be taken and if Vigilance inquiry is required tobe ordered, it is only when the Committee is not satisfied with the materialproduced by the applicant. Again it has been stated that the affinity testcannot be conclusive either way and is not a litmus test.6Per contra, the learned AGP submitted that though opportunitywas given to both the petitioners to establish their claim, they have notexplained their contra entries. The oldest document is required to be 6WP_1956_2006_Jd+1considered and the oldest document of the petitioner i.e. in respect of hisown admission register in respect of petitioner Bharatsingh Bainade showsthat he is ‘Hindu Bhat’. Mere mention of caste/Tribe as ‘Thakur’ is also notsufficient, but it has to be then connected to show that it is ‘Thakur’ Tribewhich has been protected and held to be Scheduled Tribe as per theConstitution of India. All the documents have been considered even inrespect of their blood relatives. The candidate should establish his claim firstand then only he can rely upon the documents of his blood relatives, if heestablishes the relationship. Therefore, no fault can be found in theimpugned Judgment and orders. 7We have considered all the documents in both the matters andthe original File in respect of both the petitioners. It is to be noted that bothof them had not filed any pre-constitutional document. Of course, merelybecause it has not been filed, the claim cannot be denied, but if suchdocument is available, then it should be placed before the Committee first. Itwill have more value than the other documents which are after theConstitution of India was adopted. In Kumari Madhuri Patil and another vs.Additional Commissioner, Tribal Development and others [(1994) 6 SCC241] it has been observed that the documents which pertain to pre-constitutional period are having greatest probative value. Therefore, it ought 7WP_1956_2006_Jd+1to have been considered by both the petitioners that they should search forsuch document and place it before the Committee to support their claim.Here, in case of petitioner Bharatsingh, no document is pre-constitutional andthen as regards the other documents are concerned, it has been categorized;in some cases caste has been shown as ‘Hindu Bhat’ and in some documentscaste/Tribe has been mentioned as ‘Thakur’. To be precise, the documents atSr.Nos.1 and 10 show caste as ‘Hindu Bhat’, documents at Sr.Nos.2, 3, 11 asmentioned in the impugned order show the caste as ‘Thakur’, but out ofthose, in documents at Sr.Nos.2 and 11 there is eraser of the word ‘Bhat’ andthen ‘Thakur’ has been written. It is important to note that when theVigilance Cell had submitted the report, the copy of the same was given tothe said petitioner and his say was called. The petitioner Bharatsinghappeared and gave reply. Thereafter for personal hearing he was called andfully interviewed. But again he applied to the Committee to give him onemore chance to submit more documents to support his Tribe claim. 15 daystime was given, but he failed to produce any document. Therefore, theprinciples of natural justice are fully observed in the case. As regards affinitytest is concerned, though it is not litmus test as held above in Anand (supra)as well as in Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti (supra);yet, in the case of petitioner Bharatsingh he had not produced any validitycertificate of his blood relative with necessary affidavits and the family tree. 8WP_1956_2006_Jd+1Therefore, conducting Vigilance Cell inquiry cannot be said to be illegal. Hehas failed in proving the affinity and ethnic linkage to the Tribe. We do notfind that the Committee has committed any kind of error or illegality ininvalidating his claim. 8In the case of petitioner Santoshsingh, affidavit-in-reply has beenfiled on behalf of respondent No.2, the Research Officer Ganesh Bhila Sonar,wherein it is said that the Vigilance Cell goes to show that the petitioner andhis family belongs to ‘Bhat’, which is included in ‘Other Backward Classes’.‘Bhats’ are included at entry No.18 in the list of Other Backward Classesprepared by Government of Maharashtra, whereas ‘Thakurs’ are included inScheduled Tribe at entry No.44 of presidential list of 1976. The oldestdocument in this case was of 09.10.1952 in respect of one DiwansinghAyodhyasingh Chavan, who is the relative of the petitioner and it says, hiscaste as ‘Hindu Bhat’. Even in case of father of petitioner Santoshsingh, inthe record in respect of admission to the school on 09.10.1958 his caste ismentioned as ‘Bhat’. We have confirmed those documents. When the olddocuments are showing that the relative of the petitioner Santoshsingh andhis father’s school record mentioned that they are ‘Bhat’ by caste, withoutthere being explanation to the contra entry the Scrutiny Committee wasjustified in rejecting the claim of the petitioner. The caste certificates of the 9WP_1956_2006_Jd+1relatives mentioning them as ‘Thakur’ are of subsequent years. It will not beappropriate to expect from the petitioner to produce pre-constitutionaldocument or document prior to 1976 to show that he is or his family belongto ‘Thakur’ community, when the said Tribe has been included in thepresidential list for the first time in 1976. But at least there should bespecific mention of the Tribe or caste as ‘Thakur’ in all the documents prior to1976. When there are contra entries and they have not been explained, wedo not find that there is any illegality as regards invalidation of the claim ofpetitioner Santoshsingh by Committee. Therefore, both the petitions shouldfail. Hence, following order. ORDER1Both Writ Petitions stand dismissed. 2Rule is discharged. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd