High Court
Legal Reasoning
8.WP.9968.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9968 OF 2024Prathamesh s/o Ganesh Bhosale … PETITIONER VERSUS 1.The State of Maharashtrathrough its SecretaryTribal Development Department Mantralaya, Mumbai – 322.Scrutiny Committee for Scheduled Tribesthrough Vice-Chairman,Chhatrapati Sambhajinagarthrough its Member SecretaryChhatrapati Sambhajinagar… RESPONDENTS ...Advocate for petitioner : Mr. Omgashad B. BoinwadAddl.G.P. for respondent/State : Mr. P.S. Patil… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.DATE: 10.09.2024ORDER (MANGESH S. PATIL, J.) :By way of this petition under Article 226 of the Constitutionof India read with Sub-Section 2 of Section 7 of Maharashtra Act No.XXIIIof 2001, the petitioner is challenging the decision of the respondent No.2– Scrutiny Committee constituted under that Act, dated 09.09.2024,refusing to validate his ‘Thakur’ scheduled tribe certificate.2.Considering the urgency, inasmuch as, the petitioner hasbeen allotted a college in the admission process conducted by the StateCommon Entrance Test Cell and the Admission Authority, the matter is1/7
Legal Reasoning
8.WP.9968.24.odttaken up for final disposal at the admission stage. Issue notice for finaldisposal. Learned AGP waives service for both the respondents.3.The learned advocate for the petitioner Mr. Boinwad wouldsubmit that the petitioner’s father Ganesh as also the real uncles Apparaoand Hanumant possess certificates of validity and irrespective of thestand of the Committee about they having obtained the certificates byresorting to fraud and irrespective of its decision to undertake the processfor recalling these validities, till the time those validity certificates are inforce, the petitioner is entitled to derive the benefit. He is ready to facethe consequences contemplated in Shweta Balaji Isankar Vs. State ofMaharashtra and Ors.;WP No.6320/2017, and may be issued with acertificate of validity subject to the final outcome of the matters of thevalidity holders which the Committee has decided to reopen.4.Learned AGP Mr. Patil would strongly oppose the petition. Hewould submit that petitioner claims to be ‘Thakur’ and possesses such acertificate, whereas, the Committee could notice several entries in theschool records of petitioner’s father Ganesh and uncles Apparao andHanumant describing them in the caste column as ‘Thakar’. He wouldsubmit that though ‘Thakur’ and ‘Thakar’ fall under the same serial No.44of the Presidential Order, as laid down in the matter of State ofMaharashtra Vs. Milind and Ors.; (2001) 1 Supreme Court 4, every entryin constitutional order has to be strictly understood in the same manner.‘Thakar’ and ‘Thakur’ are distinct tribes and no fault can be found in the2/7 8.WP.9968.24.odtstand of the Committee in treating ‘Thakar’ entry as contrary to thepetitioner’s claim ‘Thakur’.5.Mr. Patil would further submit that in fact Apparao wasissued with validity certificate of ‘Thakar’ scheduled tribe. Apparao whois petitioner’s uncle was issued with a certificate of validity in the year2004 in first point of time. He had relied upon the validities of theindividuals not related to him by blood from the paternal side. He hadalso concealed contrary record and had obtained certificate of validitywithout sufficient evidence and by suppressing material facts whichenables the committee to revisit his validity. He would, therefore, pray todismiss the petition.6.We have carefully considered the rival submissions andperused the papers including the original file of Apparao and petitioner’sfather Ganesh. It appears that the Committees which have beenundertaking the process either at the time of Apparao and Ganesh andeven the incumbent Committee apparently are responsible for creation ofall the confusion. There is even room and circumstances to believe thateven the successive committees have ignored or overlooked and have notbeen able to distinguish between ‘Thakar’ and ‘Thakur’ scheduled tribes.Apparao was granted validity certificate of ‘Thakar’. The original papersin his file would indicate that he was issued with ‘Thakar’ scheduled tribecertificate by undertaking vigilance inquiry, by a detailed and reasonedorder. Even if validities of certain individuals allegedly not related to him3/7 8.WP.9968.24.odtby blood were referred to and relied upon, that was not the only piece ofevidence on the basis of which his tribe certificate was validated. In fact,after facing earlier invalidation, he had approached this Court. Thematter was remanded and thereafter by another speaking and detailedorder he was held entitled to have a certificate of validity. The presentCommittee cannot be allowed to sit in appeal against the decision of itspredecessor. The only scope for it is to revisit the validity to substantiateits inference of alleged fraud practised by him. Sustainability of thedecision taken by the predecessor Committee is not the parameter laiddown in the Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs.State of Maharashtra and Ors.; 2023 SCC Online SC 326. Since Apparaowas issued with certificate of validity by due process of law and by areasoned order, in the normal course, the petitioner would be entitled toderive its benefit.7.However, it is interesting enough to note that petitionerclaims to be ‘Thakur’, whereas, Apparao who is his real paternal uncle,possesses a certificate of validity of ‘Thakar’ scheduled tribe.8.It is still more interesting to note that petitioner’s fatherGanesh was possessing ‘Thakur’ scheduled tribe certificate and sought itto be validated. The proposal was considered by the then committee, avigilance inquiry was conducted and by a reasoned order he was heldentitled to have a certificate of validity, that too, in spite of the recordrelied upon by him was demonstrating entries of ‘Thakar’. The original4/7 8.WP.9968.24.odtorder passed in his matter in the title mentions that his tribe claim was‘Thakar’, however, in the operative part, it was described as ‘Thakur’.There is apparent manipulation, inasmuch as, letter ‘a’ between ‘k’ and ‘r’is overwritten by letter ‘u’. Even the form filled by him under Rule 11 (2)in Form ‘F’ he had mentioned ‘Thakar’, albeit, his tribe certificate was of‘Thakur’ and ultimately, he was issued with a certificate of validity as‘Thakur’.9.Petitioner’s father had also relied upon the validity ofApparao which was in fact of ‘Thakar’ scheduled tribe and stillpetitioner’s father Ganesh was issued with a certificate of validity as‘Thakur’. 10.It is to be noted that since petitioner’s father Ganesh wasissued with ‘Thakur’ scheduled tribe certificate, there could not have beenany proposal/claim by him of validation of any other certificate, of‘Thakar’ scheduled tribe which he did not possess. It is only a certificateissued under Section 4 is subject to the validation by the ScrutinyCommittee under Section 7 of the Maharashtra Act No.XXIII of 2001. Theresultant situation is that Appasaheb who is real uncle of the petitionerpossesses certificate of validity of ‘Thakar’ scheduled tribe and his fatherGanesh who is the real brother of Apparao, possesses validity certificateof ‘Thakur’ scheduled tribe. 11.It is in view of such peculiar state of affairs, the submissionof the learned advocate for the petitioner Mr. Boinwad that since ‘Thakar’5/7 8.WP.9968.24.odtand ‘Thakur’ both tribes form part of the same entry at serial No.44 of theConstitutional Order, neither could be taken as contrary to the other,more so, when even the committees have not been consistent. In view ofsuch peculiar state of affairs, when petitioner’s father Ganesh has beenissued with certificate of validity by following due process of law,irrespective of the stand of the Committee, to resort to scrutiny of thevalidaties for the alleged fraud and irrespective of the submission of thelearned AGP, demonstrating the aforementioned circumstances, thepetitioner deserves to be issued with a certificate of validity.12.In the impugned order Committee has also assigned fewreasons by referring to the different genealogies for entertaining somesuspicion. Even statement of Babasaheb Kashinath Bhosle stated to bepetitioner’s grandfather recorded in the matter of Apparao has beenreproduced, wherein, Babasaheb on 29.04.2002 had stated to have onlytwo sons Apparao and Hanumant and one daughter Aruna, butpetitioner’s father Ganesh while showing the genealogy has demonstratedthat he is also a son of Babasaheb, to derive the benefit of Apparao’svalidity.13.Suffice for the purpose to observe that we need not indulgein objective scrutiny of this part of the impugned judgment for the reasonthat the Committee has assigned these to substantiate its inference ofpetitioner’s father having practised fraud. It would be a matter of anindependent and threadbare scrutiny which will have to be undertaken6/7
Decision
8.WP.9968.24.odtby the Committee by following due process of law. Since Ganesh is notbefore us and so is Apparao, we cannot undertake such scrutiny to theirprejudice when they are not before us.14.The fact remains that petitioner’s father possesses acertificate of validity and so long as it is not recalled by following dueprocess of law and when it can be seen that he was issued with thecertificate of validity by following due process of law, the petitioner isentitled to have a certificate of validity.15.The writ petition is partly allowed. The impugned order isquashed and set aside. The respondent – Committee shall immediatelyissue tribe validity certificate to the petitioner as belonging to ‘Thakur’scheduled tribe. The validity shall be co-terminus with the validity of hisfather Ganesh.16.The petitioner shall not claim equities. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb7/7