High Court · 2025
Legal Reasoning
903.WP-9283-2012.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD Writ Petition No. 9283 Of 2012WithCivil Application No. 13617 Of 2012Lahu Dasharath Thakur,Age : 23 years, Occupation-Service,R/o. At post Nipane,Tq. Erandol Dist, Jalgaon,Presently residing at Muktainagar, Tq. Muktainagar, Dist. Jalgaon. .. Petitioner Versus1.Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Region, Nandurbar, Through its Member Secretary.2.Executive Engineer, Maharashtra State ElectricityDistribution Company Ltd.,Bhusawal, Chopde Building,Tapi Nagar, Bhusawal,Dist. Jalgaon.3.Assistant Engineer,Maharashtra State ElectricityDistribution Company Ltd.,Muktainagar Division,Tq. Muktainagar, Dist. Jalgaon. .. Respondents[1]
Legal Reasoning
903.WP-9283-2012.odt****** Advocate for the Petitioner : Mr. Sushant C. Yeramwar* Addl.GP for Respondent No.1/State : Mr. Pravin S. Patil* Advocate for Respondent Nos. 2 & 3 : Mr.Dhananjay P. Deshpande***** CORAM : S.G. MEHARE AND SHAILESH P. BRAHME, JJ.. RESERVED ON : 04th MARCH 2025PRONOUNCED ON : 11th MARCH 2025 FINAL ORDER (Per Shailesh P. Brahme, J.) :1.Heard both sides finally.2.This petition is directed against judgment and order dated29.09.2012 passed by the Respondent/Scrutiny Committee,invalidating the tribe certificate of Scheduled Tribe Thakur ofthe Petitioner. The Committee invalidated the certificate on thearea restriction and affinity test. It is held that surname of thePetitioner is confusing and is not decisive to determine hiscaste. 3.Petitioner has relied on various school entries, revenuerecord, death certificate, domicile certificate etc. Out of thatschool entries of Girdhar, Piraji and Jairam are pre-constitutional documents. [2] 903.WP-9283-2012.odt4.Learned Counsel for the Petitioner Mr. Yeramwar submitsthat in view of pre-constitutional record, Committee ought tohave accepted tribe claim. He would submit that findingrecorded by the Committee that the documents pressed intoservice did not show caste as Thakur Scheduled Tribe, isperverse. It is further submitted that the finding in respect ofarea restriction and affinity test are unsustainable. It isemphasized by learned Counsel that once pre-constitutionaldocuments indicate caste as Thakur, no further inquiry isnecessary. He would rely on the judgment of MaharashtraAdiwasi Thakur Jamat Swarakshan Samiti Vs. State ofMaharashtra and Ors., 2023 SCC Online SC 326.5.Per contra, Mr. Pravin Patil learned Additional GP for theRespondent No.1 supports impugned judgment and order. Thedocuments pressed into service only indicate caste as Thakur.Hence it is imperative to consider result of affinity test. Hewould submit that entry “Thakur” in the documents is notsufficient because in all probabilities, Petitioner and hisforefathers would belong to upper caste – Thakur. It is furthersubmitted that affinity test is conducted by the experts and itcannot be discarded. He would further submit that thepermanent place of residence of the Petitioner is decisive whichdoes not support his claim. 6.Learned Additional GP has also canvassed that judgment[3] 903.WP-9283-2012.odtof Supreme Court in the matter of Maharashtra AdiwasiThakur Jamat Swarakshan Samiti (supra) is not helpful to thePetitioner. All aspects of the matter which are covered by FullBench Judgment of Bombay High Court in the matter of ShilpaVishnu Thakur Vs. State of Maharashtra in Writ PetitionNo.5028/2006, are not dealt with by the Supreme Court. Stillthe matters are subjudiced before the Honourable Apex Courtfor the adjudication as to whether reference to Thakur onlywould be conclusive to treat Scheduled Tribe Thakur or furtherinquiry is permissible to find out that it is Thakur other thanthe Scheduled Tribe. 7.Having considered rival submissions of the parties, itreveals that Petitioner is not relying on any validity issued topaternal side blood relatives. His reliance is on following pre-constitutional documents :iSchool Admission Registered Extract of Girdhar Lukdu Thakur of 01.03.1914iiSchool Admission Registered Extract of Piraji Lukdu Thakur of 01.07.1947iiiSchool Leaving Certificate of Girdhar Lukdu Thakur of 01.03.1914ivSchool Leaving Certificate of Piraji Lukdu Thakur of 01.07.1947vVillage Form No.14 of Jairam Lukdu Thakur[4] 903.WP-9283-2012.odt.In the above documents, caste was mentioned as Thakur.Girdhar is the cousin grandfather and Piraji is grandfather ofthe Petitioner. Jairam is his great grandfather.8.In the present matter, vigilance inquiry was conducted.The Vigilance Cell did not express any reservation about thegenuineness of the documents. The Committee also did notcastigate the old record. The pre-constitutional record hasgreater probative value is settled position of law as perKumari Madhuri Patil and Ors. Vs. Addl. Commissioner, TribalDevelopment and Ors., AIR 1995 SC 94 and Anand Vs.Committee for Scrutiny and Verification of Tribe Claims andOthers, (2012) 1 SCC 113.9.Learned Additional GP did not point out any circumstanceor material to doubt the pre-constitutional record. Only objectionwas that caste mentioned as Thakur would not be ScheduledTribe Thakur, but also the upper caste Thakur or besidesScheduled Tribe Thakur. In this regard, a useful reference canbe made to the decision of the Division Bench in the matter ofRavindra Pralhadrao Khare Vs. State of Maharashtra andOthers, in Writ Petition No.11241/2012. The coordinate benchhad occasion to deal with the issue that if only Thakur ismentioned as caste in pre-constitutional document, then whatwould be the consequences. We reproduce paragraph nos. 3, 4,[5] 903.WP-9283-2012.odt5 and 6 :3.We have carefully considered the submissions. It will be necessary tomake a reference to the impugned judgment and order. The Caste ScrutinyCommittee has referred to the school record of the Petitioner’s father whichdiscloses that in the year 1948, his caste was recorded as “Thakur”. The ScrutinyCommittee has also referred to the death extract of the grand father of thePetitioner which shows that in the year 1947, his caste has been shown as“Thakur”. The third important document referred to by the Scrutiny Committee isthe service book of the Petitioner’s father which shows that his caste was“Thakur”. These three documents have been brushed aside by the ScrutinyCommittee by making following observations:As said earlier, the only caste entry as Thakur does not clarifies whetherthe incumbent belongs to Thakur, Scheduled Tribe or Thakur, non-tribalgroup. Hence, though the document is oldest, the same cannot be treatedas conclusive in nature while determining the tribe claim of theapplicant.4.We fail to understand as to how the Caste Scrutiny Committee expectsthe documents of the years 19471948 to mention as to whether the caste“Thakur” belongs to the category of Scheduled Tribe or the category of non-tribal. In the years 19471948, such entries could not have been made. Anotherfinding recorded by the Tribunal is that the Petitioner could not establish hisaffinity to the caste and to the area. On this aspect, it will be necessary to makea reference to what is held by the Apex Court in the case of Anand (supra) inParagraph 22. The Paragraph 22 of the said decision reads thus:“18. It is manifest from the afore-extracted paragraph that thegenuineness of a caste claim has to be considered not only on athorough examination of the documents submitted in support of theclaim but also on the affinity test, which would include theanthropological and ethnological traits etc., of the applicant. However, itis neither feasible nor desirable to lay down an absolute rule, whichcould be applied mechanically to examine a caste claim. Nevertheless, wefeel that the following broad parameters could be kept in view whiledealing with a caste claim:(i)While dealing with documentary evidence, greater reliance may beplaced on pre Independence documents because they furnish a higherdegree of probative value to the declaration of status of a caste, ascompared to post Independence documents. In case the applicant is thefirst generation ever to attend school, the availability of anydocumentary evidence becomes difficult, but that ipso facto does not callfor the rejection of his claim. In fact the mere fact that he is the firstgeneration ever to attend school, some benefit of doubt in favour of theapplicant may be given. Needless to add that in the event of a doubt on[6] 903.WP-9283-2012.odtthe credibility of a document, its veracity has to be tested on the basisof oral evidence, for which an opportunity has to be afforded to theapplicant;(ii)While applying the affinity test, which focuses on the ethnologicalconnections with the scheduled tribe, a cautious approach has to beadopted. A few decades ago, when the tribes were somewhat immune tothe cultural development happening around them, the affinity test couldserve as a determinative factor. However, with the migrations,modernisation and contact with other communities, these communitiestend to develop and adopt new traits which may not essentially matchwith the traditional characteristics of the tribe. Hence, affinity test maynot be regarded as a litmus test for establishing the link of the applicantwith a Scheduled Tribe. Nevertheless, the claim by an applicant that heis a part of a scheduled tribe and is entitled to the benefit extended tothat tribe, cannot per se be disregarded on the ground that his presenttraits do not match his tribes' peculiar anthropological and ethnologicaltraits, deity, rituals, customs, mode of marriage, death ceremonies,method of burial of dead bodies etc. Thus, the affinity test may be usedto corroborate the documentary evidence and should not be the solecriteria to reject a claim.”(Underlines added)5.The Apex Court has held that the affinity test may be used tocorroborate the documentary evidence but should not be the sole criteria to rejectthe caste claim.6.In the present case, three material documents which we have referred toearlier have been brushed aside by the Scrutiny Committee by recording reasonswhich are not at all justified and thus, the claim is rejected primarily on the basisof the affinity test. In view of the law laid down by the Apex Court in the caseof Anand (supra), only on the basis of the affinity test, the caste claim of thePetitioner could not have been rejected.”10.The present case is squarely covered by the principles laiddown by the coordinate bench referring to the decision ofSupreme Court in the matter of Anand Vs. Committee forScrutiny and Verification of Tribe Claims and Others (supra).Even reliance on the affinity test cannot be a sole criteria toreject the claim. The finding recorded by the Committee for[7] 903.WP-9283-2012.odtdiscarding the pre-constitutional record is perverse which isappearing on page no.48 of the paper-book. 11.In the present case, during the vigilance inquiry, the pre-constitutional documents were found to be genuine. Bypresidential order of 1950 for the first time, caste Thakur wasincluded at entry no.44 in the list of the Scheduled Tribe inthe State of Maharashtra. There are in all four documents ofpre-independence period to support claim. Under thesecircumstances, reliance on the result of affinity test ismisplaced. In respect of affinity test, principles are reiterated bythe Supreme Court in the matter of Maharashtra AdiwasiThakur Jamat Swarakshan Samiti (supra). Affinity test cannotbe a sole criteria to reject the Petitioner’s claim. Theobservations of the Committee on the affinity test areunsustainable.12.Learned Additional GP has strenuously taken us throughthe niceties of affinity test and the findings recorded by theCommittee on Anthropological traits, Ethnic linkage,, Dialectand place of residence etc. The affinity test is being conductedby the experts and their opinion cannot be discarded. However,the fact remains that the law is that it is not a litmus test.In the facts and circumstances, just because there is affinitytest conducted by the experts, we are not convinced of the[8] 903.WP-9283-2012.odtsubmissions of the learned Additional GP that petitioner’s claimis rightly rejected. 13.Learned Additional GP has also taken through theobservations of the Committee in respect of place of residenceof the Petitioner and his forefathers to buttress that thefindings on area restrictions are legal and proper, in view ofremoval of area restrictions in 1976 and judgment of theSupreme Court in the matter of Palaghat Jila ThandanSamuday Sanrakshan Samiti and Anr. Vs. State of Kerala andAnr, (1994) 1 SCC 359. The place of residence of thePetitioner or his forefathers would be insignificant. Thesubmission in this regard of learned Additional GP cannot beaccepted. 14.It would be useful to refer to observations of SupremeCourt in paragraph no.21 of Maharashtra Adiwasi ThakurJamat Swarakshan Samiti (supra) which is as follows :“21.In the impugned judgment in Civil Appeal No. 2502 of 2022 (ShilpaVishnu Thakur’s case2), the Full Bench of the Bombay High Court has noted thatpeople having the surname “Thakur” belong to both forward castes and variousbackward castes. Therefore, the Full Bench may be right in saying that in everycase, only on the basis of the surname Thakur, it cannot be concluded by theScrutiny Committee that the applicant belongs to Scheduled Tribe Thakur notifiedin the Entry 44 of the Maharashtra list. However, we must note that in the caseof a person having the surname Thakur, there may be evidence in the form ofentry of the name of the caste as a Tribe or Scheduled Tribe in the land records,school or college records or any official records concerning the applicant or hisancestors. Only on the ground that the persons having the surname Thakur maybelong to a forward caste as well, it is not necessary that in every case, theScrutiny Committee should send the case to Vigilance Cell. It all depends on thenature of the documents produced before the Caste Scrutiny Committee and the[9] 903.WP-9283-2012.odtprobative value of the documents. Therefore, whenever a caste claim regardingThakur Scheduled Tribe is considered, the Caste Scrutiny Committee in every caseshould not mechanically refer the case to the Vigilance Cell for conducting anenquiry including affinity test. The reference to the Vigilance Cell can be madeonly if the Scrutiny Committee is not satisfied with the material produced by theapplicant.” 15.It is clearly observed that it would depend on the natureof the document produced before the Committee and theprobative value for referring matter to the Vigilance Cell. Inrespect of probative value of the documents in question, wehave already recorded our findings. The above observation isalso answer to the arguments of learned Additional GP thatmere mentioning of Thakur would not be sufficient. 16.According to the learned Additional GP, all the issues arenot answered or dealt with by the Supreme Court in thematter of Maharashtra Adiwasi Thakur Jamat SwarakshanSamiti (supra), which were addressed by the Full Bench ofBombay High Court in the matter of Shilpa Vishnu Thakur(supra). This submission is absurd. It is difficult to accept thatonly few issues are dealt with and few are left unanswered.The possibility of re-visiting the earlier decision of High Courtor Supreme Court cannot be ruled out in future, but that doesnot mean that this Court should wait for inordinate period tilldecision on a particular issue is handed down. 17.Even if for time being the submission is accepted that[10] 903.WP-9283-2012.odtissue of Thakur would not conclusively amount to ScheduledTribe Thakur is subjudice before the Supreme Court, that doesnot preclude this Court from deciding the matters. Therefore,we reject the submission of Mr. Pravin Patil that still fewissues are subjudiced before the Supreme Court and judgmentin the matter of Maharashtra Adiwasi Thakur JamatSwarakshan Samiti (supra) is not final verdict. 18.Our attention is adverted to various categories of theScheduled Tribe with synonymity which are recorded by theCommittee on page no.52 of the paper-book in five categories.We are concerned with serial no.1 as it refers to Thakur whichis found at serial no.44 of constitutional order. Serial Nos.2 and3 are Thakar and therefore they are irrelevant. Serial Nos. 4and 5 refers to Thakur of upper caste or some other caste. Wedo not find that in the present case, there is possibility of anyfraud on part of Petitioner or his forefathers by representingthemselves to be Scheduled Tribe Thakur. In the wake of pre-constitutional record, they have to be treated as ScheduledTribe Thakur. In the absence of any material, they cannot betreated as upper caste Thakur. 19.Learned Additional GP has referred to judgment of FullBench in the matter of Yogita d/o Anil Sona Wane Vs. State ofMaharashtra and Others, 2016 SCC OnLine Bom 14960. In[11] 903.WP-9283-2012.odtthe wake of latest decision of the Supreme Court in the matterof Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti(supra), we need not refer to decision of Full Bench of BombayHigh Court. 20.We find that impugned judgment and order isunsustainable. Petition deserves to be allowed. Hence we passfollowing order :ORDER(i) Writ Petition is allowed.(ii)Impugned judgment and order dated 29.09.2012 is quashedand set aside.(iii)The Respondent/Scrutiny Committee shall issue validitycertificate of Thakur Scheduled Tribe to the Petitionerforthwith. (iv)Civil Application stands disposed of. [ SHAILESH P. BRAHME ] [ S.G. MEHARE ] JUDGE JUDGEnajeeb..[12]