High Court · 2024
Facts
(1) wp-14096-2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.14096 OF 2021Samira Pravin Savale,Age:- 18 years, Occ. Student,R/o Thalner, Tq. Shirpur,Dist. Dhule...PetitionerVersus1.The State of Maharashtra,Through its Secretary,Tribal Department,Mantralaya, Mumbai-32,2.The Scheduled Tribe Certificate Scrutiny Committee,Nandurbar Nandurbar,Through its Deputy Director (R).3.The Tahsildar,Tahsil Office, Shirpur,Tq. Shirpur, Dist. Dhule.4.The Commissioner & Competent Authority,State CET Cell, Maharashtra State,Mumbai-1.8th Floor, New Exelsior Building,AK Marg, Fort, Mumbai-1(Controller of Admission Process)...Respondents. …Mr. P. V. Jadhavar, Advocate for the Petitioner.Mr. N. S. Tekale, AGP for Respondent Nos.1 to 3.Mr. S. G. Karlekar, Advocate for Respondent No.4. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 18th JANUARY 2024.JUDGMENT PRONOUNCED ON :- 23rd JANUARY 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission.
Legal Reasoning
(4) wp-14096-2021.odtfurther abbreviations. This Court in case of Mayuri SudhakarSawsakad and another Vs. State of Maharashtra & others1observed in paragraph no.19 as under:-“19. In our view, the concept of recognized Scheduled Tribe for thepurposes of giving benefits and concessions was not prevailing priorto 1950 and, therefore, only caste or community to which a personbelonged was stated in the birth, school and revenue recordsmaintained. The documents are issued in the printed format, whichcontains a column under the heading ‘Caste’ and there is no columnof tribe. Irrespective of the fact that it is a tribe, the name of tribe isshown in column of caste. While entering the name, the distinctionbetween caste and tribe is ignored.”7.It would be, therefore, appropriate to give weightage to thepre-Constitutional document, which specifies caste and tribe both in thedocument. In the present case, the school record of Sahadu KhanduSavale (1941), Mirabai Govinda Savale (1949) specify caste to be‘Mahadev Koli’. Further in the year 1951 the school admission extractsof the petitioner’s grandfather Rohidas Kautik Savale and cousingrandfather Lotan Namdev Savale show caste entries as ‘MahadevKoli’. In light of this pre-Constitutional record of blood relations, wehave no hesitation to hold that the documents produced by thepetitioner would fetch greater probative value, whereas the otherentries relied upon by the Committee, although pre-Constitutionalreferring caste as ‘Koli’ would not read as contra entries to dislodge thecaste claim of the petitioner for ‘Koli Mahadev’ Scheduled Tribe. So faras the affinity test is concerned, it is now well settled that it would bethe corroborative evidence to the documentary evidence and should notbe sole criteria to reject the caste claim. Further in view of theindustrialization and overall development bringing various means oftransportation and homogenization classes of the society, affinity testcannot be considered as litmus test in view of the acceptance of newtraits by the tribe. Therefore, failure to corroborate with the peculiaranthropological or ethnological traits, deity, rituals, customs, mode of12019 (6) Mh.L.J. 766. (5) wp-14096-2021.odtmarriage, death ceremonies, method of burial of dead bodies, etc. can beignored in facts of the case. Some variation in this regard may not beread adverse to the caste claim. It is true that in absence ofdocumentary evidence, the affinity test assumes great significance anddue importance needs to be given in appropriate cases. However, whenthe claim is based on documents, the preference needs to be given to thedocumentary evidence, particularly documents pertaining to pre-Constitutional era. 8.In view of the aforesaid observations, we have no hesitationto hold that the Committee has adopted hyper technical approach anderroneously dislodged the caste claim of the petitioner. 9.Hence, we proceed to pass following order:-ORDER a.Writ Petition is allowed.b.The impugned order dated 24.11.2021 passed by respondent no.2-Scheduled Tribe Certificate Scrutiny Committee, Nandurbar is herebyquashed and set aside.c.The respondent no.2-Committee shall immediately issuecertificate of caste validity in favour of the petitioner for ‘Koli Mahadev’,Scheduled Tribe.d.Writ Petition is disposed of.e.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/January-2024
Arguments
(2) wp-14096-2021.odt2.The petitioner approaches this Court under Article 226 ofthe Constitution of India, thereby impugning the order dated24.11.2021 passed by respondent no.2-Scheduled Tribe CertificateScrutiny Committee, Nandurbar, thereby invalidating the caste claim ofthe petitioner as belonging to ‘Koli Mahadev’, Scheduled Tribe.3.Mr. Pratap Jadhavar, learned Advocate appearing for thepetitioner would submit that the petitioner is a student and pursuingher education. The Competent Authority issued caste certificate dated17.02.2018 in his favour certifying that she belongs to ‘Koli Mahadev’,Scheduled Tribe. The certificate was forwarded to the Committee forverification alongwith various documents including school record,service book record and affidavit containing genealogy. The vigilanceinquiry was ordered by the Committee. On receipt of the report, showcause notice was issued, which has been duly replied by petitionerexplaining the adverse remarks. Mr. Jadhavar would submit that thepetitioner has submitted pre-Constitutional documents in the form ofschool admission entry of second cousin i.e. Sahadu Khandu Savaledated 01.06.1941, Mirabai Govinda Savale i.e. cousin grandmotherdated 01.06.1949, Rohidas Kautik Savale i.e. grandfather dated01.06.1951 and so on. However, Committee relying upon some contraentries pertaining to the distinct blood relatives, discarded the casteclaim of the petitioner, which is contrary to the settled legal position.4.The learned AGP supports order and points out that thevigilance report depicts the entries from 1915 onward depicting caste ofpetitioner’s blood relatives as ‘Koli’, ‘Mahadev Koli’, ‘Suryawanshi Koli’‘Hindu Suryawanshi Koli’, ‘Hindu Mahadev Koli’, ‘Hindu Tokre Koli’,which is contrary to the claim of the petitioner for ‘Koli Mahadev’,Schedule Tribe. The Committee has taken possible view afterconsidering the documents on record. He would further submit that thepetitioner failed to establish the traits analogous to tribes peculiar (3) wp-14096-2021.odtAnthropological and ethnological traits, deity, customs etc. He would,therefore, submit that there is no merit in the petition.5.We have considered the submissions advanced on behalf ofthe respective parties, so also perused the annexures to this petition.The original file received from the Committee is also made available forour consideration. The petitioner in support of her caste claim for ‘KoliMahadev’, Scheduled Tribe placed reliance on following documents:-v-dz-nLr,sotkps ukonLr,sotkaojhy O;DrhpsukovtZnkjk’khjDrukrsTkkrhph uksanizos’[email protected]‘kkys; iqjkoklgknw [kaMw lkoGspqyr pqyr Hkkmegknso dksGhtUe rk- 01-06-19412‘kkys; iqjkokfejkckbZ xksfoank lkoGspqyr vkthdksGh egknsodksGhtUe rk- 01-06-19493‘kkys; iqjkokjksfgnkl dkSfrd lkoGsvktksck egknso dksGhtUe rk- 01-06-19514‘kkys; iqjkokyksVu ukenso lkoGspqyr vktksckegknso dksGhtUe rk- 13-04-19415‘kkys; iqjkokcfUlyky dkGq lkoGspqyr vktksckLkq;Zoa’kh dksGhtUe rk- 01-06-19536. The Committee relied upon the contra entries in respect ofcousin great great grandfather and cousin grandfather, which are from1915 to 1941, wherein caste is referred as ‘Koli’. Apparently, thereliance of the petitioner is on pre-Constitutional documents, so alsoperiod of vicinity of Presidential order. The petitioner is relying upontwo documents of the year 1951 depicting the entry of caste as‘Mahadev Koli’, Scheduled Tribe in the school record of the bloodrelatives i.e. second cousin, cousin paternal aunt, grandfather andcousin grandfather. Pertinently, the aforesaid record is impeccable incharacter. The vigilance report nowhere doubts the genuineness of thesaid documents being fraudulent or obtained by misrepresentation orobserving any overwriting or manipulation. So far as the contra entriesnoted by the Committee are concerned, those are during pre-Constitutional period, when no benefit was available based on the casteto the particular community. The entries depict ‘Koli’ as caste without