High Court
Legal Reasoning
16 Governor of State in accordance with provisions of Article 342 ofthe Constitution of India. The government issued G.R. dated08.07.1982 declaring Thakar at entry no. 200 as other backwardclass. The following observations in paragraph no. 22 are useful :“22.In view of the voluminous evidence that isproduced before us, and in the light of thedecision of the Apex Court in (i) Palghat JillaThandan Samudhaya Samrakshna Samithi V.State of Kerala, (1994) 1 SCC 359 and (ii) PankajKumar Saha V. Sub-Divisional Officer, Islampur,(1996) 8 SCC 264, we are of the view that thepetitioner is entitled to be declared to bebelonging to the Scheduled Tribe of Thakar. Thematter is pending in this court since 1991. Nouseful purpose would be served by sending thematter back, in view of the decisions of the ApexCourt which make it clear that once the tribe hasbeen declared by a parliamentary enactment to bea Scheduled Tribe, there is very little scope for theState or even for this Court to inquire into thematter or to include in or exclude from or tosubstitute or to declare synonym to be aScheduled Caste or a Scheduled Tribe. No inquirycan be held or evidence led to determine whetheror not a particular community falls within it oroutside it. The S.T. Order has to be applied as itstands. Since the Thakars have been enteredunder Entry 44 of the 1976 enactment to be aScheduled Tribe and the documentary evidence 17 on record clearly shows that the petitionerbelongs to the Scheduled Tribe of Thakar, thepetitioner will be entitled to succeed.”28.We propose to follow the above ratio and accept thesubmissions of learned counsel for the petitioner. It is notpermissible to hold that ‘Takankar’ is not a scheduled tribe but aSpecial Backward Class – A.29.Considering our reasoning stated above, we are ofconsidered view that the impugned judgment and order of therespondent scrutiny committee is unsustainable and liable to bequashed. However, in future, if the committee proposes to conductreverification of the validity certificate of blood relatives of thepetitioner then the validity certificate which would be issued to thepetitioner can be made co-terminus. Hence, we pass the followingorder :ORDERi.Writ Petition is allowed partly.ii.The impugned judgment and order passed byrespondent no. 2/Scrutiny Committee dated17.10.2024 is quashed and set aside.iii.The respondent no.2/Scrutiny Committeeshall issue the tribe claim certificate forthwith. Thesame shall be subject to the outcome of re-verification if proposed by respondent no.2/Scrutiny Committee. 18 iv.Parties to act on an authenticated copy of thisorder.[ SHAILESH P. BRAHME, J. ] [ S.G. MEHARE, J. ]Thakur-Chauhan/-
Arguments
1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 11990 OF 2024Shaikh Imadoddin WajidoddinS/o. Shaikh Wajidoddin FakroddinAge. 26 years, Occu. Student,R/o. DRT 6, Labour Colony,Aurangabad.… Petitioner.Versus1.The State of Maharashtra,Through its Secretary,Tribal Development Department,Mantralaya, Mumbai - 32.2.The Scheduled Tribe CertificateScrutiny Committee,Chhtrapati Sambhajinagar Division,Chhatrapati Sambhajinagar. … Respondents.…Advocate for Petitioner : Ms. Pradnya Talekar i/b. Talekar and AssociatesAGP for Respondents : Mr. V.M. Kagne… CORAM : S. G. MEHARE AND SHAILESH P. BRAHME, JJ. DATE : 14 NOVEMBER 2024Per Court :1.Rule. Rule is made returnable forthwith. Heard bothsides finally at the admission stage considering the exigency thatthe petitioner seeks to prosecute post-graduation on the basis ofcaste benefits.2.The petitioner is challenging the judgment and orderdated 17.10.2024 passed by respondent no. 2 / Scrutiny 2 Committee confiscating and invalidating his tribe certificate of thescheduled tribe ‘Takankar’.3.The Scrutiny Committee rejected the tribe claim bydiscarding the validity certificates of Sk. Mohd. Waquioddin andhis son Sk. Abdul Albarr. The relationship of the petitioner withvalidity holder Sk. Mohd. Waquioddin was doubted due to theletter dated 03.05.2023. Considering the school record of thepetitioner’s father and cousin uncle, it was held that they do notbelong to the scheduled tribe ‘Takankar’. It was further held thatthe petitioner is Muslim by religion and he failed to prove that hebelongs to ‘Takankar’ scheduled tribe which is at entry no.38.4.The Committee further recorded that by notificationdated 19.07.2024, the State Government classified ‘Takankar’ videentry no. 22 as ‘SBC-A’. The petitioner is found to have been takingdisadvantage of similarity in the name of the tribe. As per theinformation collected by the vigilance cell, nobody from thepetitioner’s family resided at Palam, Taluka Palam, DistrictParbhani. The school record of the petitioner’s grandfatherFakruddin and cousin great-grandfather of Maula Sk. Mahuddinwas discarded considering their place of residence. Therelationship of the petitioner with Sk. Maula and Sk. Hussain wasdoubted. The census entries are recorded to be incompatible withhis tribe claim. Additionally, the affinity test was also recordedagainst the petitioner.5.Learned counsel for the petitioner Ms. Pradnya Talekarsubmits that the clinching material of the validity certificates of Sk. 3 Abdul Albarr and sons of Sk. Khaja Mainuddin have beendiscarded arbitrarily and highhandedly. She further submits thatwithout conducting proper vigilance, the pre-constitutional schoolentry of the petitioner’s grandfather Fakroddin was discarded. It issubmitted that previously on two occasions the matter wasremanded to the Scrutiny Committee. The last order of remanddated 24.11.2017 passed in Writ Petition No. 12770/2017 showsthat there was no contra evidence. More literature and researchwere expected to be conducted after the remand but no endeavourwas made. She also argued that the affidavit of Mr. Sk.Waquioddin, is of no use as he turned from his affidavit. However,the reasons for discarding the tribe validity are not sound.6.Learned counsel for the petitioner relies on the orderdated 06.07.2023 passed in Writ Petition No. 11742/2022 grantingconditional validity to 11742/2022 in the matter of Sk. AbdulAlbarr Shaikh Mohd. Waquioddin Versus The State of Maharashtraand Others. She would further submit that the papers were notcalled for, from the Kinwat Committee to ascertain the record ofvalidity holder Sk. Musasab and his children which amounts todereliction of the duties. The finding recorded by the Committeewith respect to the place of residence of the petitioner and hisblood relatives is unsustainable in view of the removal of arearestrictions. It is vehemently argued that the entry ‘MuslimTakankar’ cannot be treated as a contrary entry, as ‘Muslim’ is areligion.7.Learned counsel for the petitioner relies on thefollowing judgments: 4 i.Taaseem Sartaj Mohammad Khan Versus State ofMaharashtra and Another, 2022 SCC OnLine Bom 5285 ; ii.Muhammed Anas Abdullah Dandu Versus State ofMaharashtra and Others, 2020 SCC OnLine Bom 8752 ;iii.Khan Namirah Khanum Abdul and Another Versus State ofMaharashtra and Others, 2019 SCC OnLine Bom 1442 ;iv.Pandurang Rangnath Chavan Versus State of Maharashtraand Others, (1998) 2 Mah. L.J. 806 ;v.Anand Versus Committee for Scrutiny and Verification ofTribe Claims and Others, (2012) 1 SCC 113.8.Learned AGP tenders on record the original papers ofthe petitioner and the validity holder Sk. Musasab which isreceived from Kinwat Committee. He supports impugned judgmentand order. He would point out that the school record of thepetitioner, his father and his cousin uncle disclosed caste as ‘IslamTakankar’ or ‘Musalman Takankar’ which is not a scheduled tribe‘Takankar’. He would invite our attention to the affidavit filed bySk. Waquioddin, his letter dated 03.05.2023 and the difference ofhis signatures. It is vehemently argued that the branch ofWaquioddin is not a relative of the petitioner and validities in thesaid branch would be of no avail to the petitioner. It is furthersubmitted that the petitioner has played fraud and granting himvalidity on the basis of the validities of Sk. Adbul Albar wouldamount to the perpetuation of the mischief. 5 9.Learned AGP refers to the judgment and order dated15.09.2023 passed by the Committee from the file of Sk. Musasab.During the course of the vigilance the manipulated entries of Sk.Mohd. Musasab and Ismail B were traced. He would furthersubmit that the relevant material was taken into account by theCommittee and the petitioner failed to produce the literature tosupport his tribe claim. During the vigilance enquiry, theinformation was collected by recording statements of the localresidents and considering the overall material the tribe claim hasbeen rejected which cannot be interfered with.10.We have considered rival submissions of the parties.We have also gone through relevant papers from the files producedby learned AGP on record.11.The petitioner is relying on validity certificates issuedby the coordinate bench vide order dated 06.07.2023 to Sk. AbdulAlbarr in Writ Petition No. 11742/2022, validities issued to Sk.Musasab, Sk. Khaja Moinuddin and his children. He is furtherrelying on the preconstitutional record of his grandfatherFakruddin of 1933 (1343 Fasli), cousin great grandfathers MaulaShaikh of 1927 (1337 Fasli) and Shaikh Husain of 1925 (1335Fasli).12.The school record of petitioner’s grandfather Fakruddinof 1933 indicating caste as ‘Takankar’ was produced before theCommittee. The Committee should have conducted a vigilanceenquiry and verified the school record but no endeavour was madeto verify the school record. In the case of school entries of cousin 6 great grandfather Shaikh Maula and Shaikh Hussain, records areverified and found to be ‘Takankar’. Both entries are of 1927 and1925, respectively. The clinching record is discarded only on theground of place of residence. Being a preconstitutional record, ithas greater probative value in view of the law laid down by theSupreme Court in the matter of Anand Versus Committee forScrutiny and Verification of Tribe Claims and Others, (2012) 1 SCC113. Learned counsel for the petitioner is justified in contendingthat the vital school record having greater probative value hasbeen discarded by the Committee arbitrarily.13.The Committee has conducted a vigilance enquiry andthe information was collected from a few local residents. On theground of the place of the residence, the tribe claim of thepetitioner is doubted which is highly objectionable. Thepreindependant record is also discarded for the same reason. Inview of the removal of area restrictions, the enquiry into the placeof residence has become inconsequential. A useful reference can bemade to the decision of Palghat Jilla Thandan SamudhayaSamrakshna Samithi and another Versus State of Kerala, (1994)1SCC 359.14.The petitioner had submitted the application dated11.07.2024 before the Committee intimating that the KinwatCommittee had issued the validity certificate to Sk. Musasab andhis children. Considering the said application, the Committee hadintended to call for papers from Kinwat Committee for verification.Observations are recorded to that effect in paragraph no. 8 of theimpugned judgment. However, the record was not called for from 7 the Kinwat Committee. Learned AGP admits that papers of Sk.Musasab was not called for from Kinwat Committee. Thus withoutascertaining the relevant material, the Committee proceeded todeal with the matter. The genealogy referred by the petitionershows that Sk. Musasab is the blood relative of the petitioner. Wefind that record of the Kinwat Committee was relevant and theCommittee failed to exercise the jurisdiction as contemplated bythe statute.15.Interestingly, learned AGP tendered on record file ofSk. Musasab from Kinwat Committee. It is submitted that despiteof tampered school record of the blood relatives, the claimant Sk.Musasab was granted validity vide judgment dated 15.09.2023.Without extending any opportunity to deal with the record, it isnot permissible to confront a few entries of Sk. Mohammad, Ismailand Musasab to the petitioner. The confrontation of record for thefirst time in the High Court is impermissible.16.While remanding the matter on the last occasion to theCommittee, the following relevant observations were made by theco-ordinate bench in its order dated 24.11.2017 in Writ PetitionNo. 12770/2017 :“9. It is recognized that some Scheduled Tribescan be referable to even Muslims such as Tadvis,Padvis. There is no dispute in respect of it. Theliterature will have to be gone into to come to theconclusion whether the Mohammedans also wouldbelongs to Takankar tribe. More literature andresearch would be required. 8 10. As far as documentary evidence is concernedvoluminous record is produced by the petitioner. Itis clear that consistently even in pre-independencedocument in respect of the grandfather caste isrecorded as Takankar and in respect of his father'sas Muslim Takankar. There is not a single contraevidence.11. The experts will have to dilate more about thetraits and the factum of Takankars professingMuslim religion / Islam or otherwise.12. The committee consists of experts and also aresearch officer. It would be appropriate if all thismaterial is considered in detail and then thecommittee delivers a judgment considering all theliterature and the material on the record.13. We are remitting the matter back forreconsideration by the experts in view of theabove reasons. The petitioner as it is now cannotbe considered for admission in his professionalcourse as the admissions are closed.”17.The Committee was expected to consider the literatureand conduct research. It has been expressly recorded in paragraphno. 9 of the impugned judgment that the expert’s assistance wasnot available due to his ailment. The Committee is equipped withthe vigilance cell comprising of research officers and vigilanceofficers. It was possible for the Committee to collect the necessary 9 information. No efforts were taken by the Committee. Merelycollecting the information from a few of the residents was notenough to deal with the contentious issues. In that view of thematter, we are of the considered view that the Committee failed toconduct proper vigilance.18.It is vehemently submitted by the learned AGP that Sk.Mohd. Waquioddin and Sk. Musasab who are the validity holdersare not the blood relatives of the petitioner. The petitioner hasproduced the affidavit of Sk. Waquioddin stating therein that thepetitioner was his cousin nephew. From the original record, wehave pointed out a letter dated 03.05.2023 addressed by Sk.Waquioddin to the Committee informing that his affidavit wasbogus and there was no relationship with the petitioner. Thevalidities issued to Waquioddin and his son Sk. Albarr werediscarded by the Committee. We have compared the signatures ofWaquioddin which are appearing on his letter and his affidavitproduced by the petitioner in the present matter. We do not findthat there is any remarkable difference in the signatures. For thatpurpose additionally, we compared the signatures with theaffidavit of Waquioddin dated 04.09.2024 given in the matter ofSk. Musasab Sk. Nabisab whom the Committee had issued with avalidity certificate vide order dated 15.09.2023. There is nodifference in signatures.19.In the above affidavit, Waquioddin is contended to bethe cousin of Sk. Musasab. If that is so then on one hand Sk.Waquioddin is disowning any relationship with the petitioner andon the other hand showing a relationship with Sk. Musasab. If we 10 consider the genealogy then petitioner and Sk. Musasab aredescendants of Moiuddin and Sk. Waquioddin is the descendant ofFakrumiya. Moiuddin and Fakrumiya are the real brothers and theyare siblings of Nawajmiya. Considering the genealogies, there is noreason to doubt that Sk. Waquioddin is the blood relative of thepetitioner (please check). The following genealogy given by thepetitioner makes the picture clear:-GenealogyNawaj MiyaMohyoddin (Great great grandfather) Fakrumiya (Great great grandfather)Sk. Hydersab Sk. Hussain Sk. Maula Chunnimiya(Great grandfather) (Great grandfather) (Great grandfather) (Great grandfather)Fakroddin Sk. Ismailbi Sk. Mohammad Sk. Nabisab Sk. Nawajoddin Sk. Hamimoddin(Grandfather) (Cousin grandfather) (Cousin grandfather) (Cousin grandfather) (Cousin grandfather)Sk. Wajijoddin Sk.Saaber Sk. Musheer Ahmed Sk. Musasab Sk. Mohd. Waquioddin(Father) (Uncle) (Cousin Uncle) (Validity holder)Sk. Imamoddin Sk. Mujammil Sk. Ikam Sk. Khaja Mainoddin Sk. Khaled Sk. Abdul Albarr(Applicant) (Cousin Brother) (Cousin Brother)20.The Committee did not call for the record of Sk.Musasab whom the the Kinwat Committee., had issued the validitycertificate. While granting him validity, the Committee relied onthe validity of Sk. Waquioddin. The school record of NawajuddinChunnumiya, Chunnumiya Fakrumiya, Hamiddoddin Chunnumiya,Sk. Mohd. Hussain Sab was pitted against him being manipulated.We are not considering as to whether those entries aremanipulated or not. But one thing is clear if the above persons are 11 blood relatives of Sk. Musasab then obviously the petitioner needsto be held to be the blood relative of the branch of Fakrumiya ofwhich Sk. Waquioddin is the lineal descendant. The naturalconsequence is that the validity of Sk. Abdul Albarr who is son ofSk. Waquioddin issued by the co-ordinate bench in Writ PetitionNo. 11742/2022 cannot be discarded for want of relationship. Wehave no iota of doubt that Sk. Waquioddin though he disowned hisrelationship by addressing a letter dated 03.05.2023 cannot bebelieved. His validity and the validity issued to his son Sk. AbdulAlbarr would ensure the benefit of the petitioner.21.The reliance is placed on the judgment of the co-ordinate bench dated 06.07.2022 passed in Writ Petition No.11742/2022 in the matter of Shaikh Abdul Albarr Shaikh Mohd.Waquioddin Versus The State of Maharashtra and Others. Thepetitioner in that case is the son of Sk. Waqioddin who wasdirected to be issued with the conditional validity. Theobservations recorded by the co-ordinate bench have barring overthe merits of the matter. We reproduce the relevant observations inparagraph nos. 10, 11 and 12 :“10.Again, it is indeed perverse and arbitrary forthe scrutiny committee to only refer to the socalled contrary entries by ignoring the oldest onewhich are in favour of the petitioner. When thereis a school record of the year 1925 and 1928 inrespect of the great-grandfather and the brother ofthe great-grandfather mentioning the caste as‘Takankar’, merely because some of thesubsequent entries of the blood relations in the 12 school record mentioned as Muslim, Musalman orMusalman Takankar, the committee could nothave drawn inference in such pick and choosemanner rather the oldest entry will have a moreprobative value and here there are two.11.The committee has then resorted to somestatements made in the registered sale deedswherein the petitioner’s blood relations havedeclared that they did not belong to any tribewhile executing the sale deeds for selling thelands.12.In our considered view assuming that thesesale deeds contain a statement that theexecutant/vendor does not belong to scheduledtribe, such a statement in the sale deed obviouslymust have been made to come out of the clutchesof law which prohibit sale of land by a tribalwithout the permission of the Collector, noamount of declaration, may be in the registeredsale deed, in our opinion can change the caste orthe tribe which an individual gets by birth. It isnot a matter which can be renounced. Thereforeeven this observation of the scrutiny committeethat because of such declaration in the sale deedsthe petitioner is not belonging to scheduled tribeis not sustainable being clearly perverse andarbitrary.” 13 22.The net result is that the preconstitutional entries ofthe grandfather and cousin great grandfathers, validities of Sk.Waquioddin and Sk. Albarr would corroborate the petitioner’sclaim which is discarded for unsustainable reasons. We propose tofollow the reasoning assigned by the co-ordinate bench in theabove referred matter that the different entries of the bloodrelatives of the petitioners showing ‘Muslim Takankar’ or‘Musalman Takankar’ or ‘Islam Takankar’ cannot be treated to be acontrary record. Muslim or Musalman is the religion and‘Takankar’ is the scheduled tribe. In the earlier round of litigation,the co-ordinate bench in its order dated 24.11.2017 in WritPetition No. 12770/2017 already observed in paragraph no. 9 thatsome scheduled tribes can be referred to even Muslims such as‘Tadavis’ and ‘Padvis” 23.Learned counsel Ms Pradnya Talekar is relying on theJudgment of Taaseem Sartaj Mohammad Khan (supra). The co-ordinate bench has observed in paragraph no. 5 which is asfollows:“5.In the present case also from the record nocontra entry appears. Mentioned ‘Muslim’ cannotbe said to be contra entry, the same is religion.”24.Thereafter, She is relying on Muhammad AnasAdbullah Dandu (supra). The relevant paragraph no. 6 is asfollows :“6.A perusal of the record clearly shows thatthe Petitioner’s father has filed Writ Petition No.43 of 1997 challenging the order dated 14 23/07/1996 passed by the committee rejecting hisclaim as belonging to Koya, Scheduled Tribe. ThisCourt vide order dated 10.01.1997 while allowingthe petition filed by the Petitioner’s fatherobserved as follows :“A joint reading of sub-clauses (iv) and (v) wouldshow that when a person claims to belong to aScheduled Caste he should be professing eitherthe Hindu or Sikh religion. However, if a personclaims to be a Scheduled Tribe, he may professany religion. In the circumstances, merely becausethe petitioner professes the Muslim religion, hecannot be deprived of his claim as belonging toKoya Scheduled Tribe. The impugned order passedby the scrutiny committee on the 23rd of July,1996, in the circumstances, is quashed and it isdeclared that the petitioner belongs to KoyaScheduled Tribe. Rule is made absolute inaforesaid terms with no orders as to costs.”25.She further relies on the judgment of Khan NamirahKhanum Adbul (supra). Following are relevant observations inparagraph no. 9 :“9.It is stated that the Government ofMaharashtra notified that Scheduled Tribes andthere is no restriction as far as religion isconcerned. Thus, scheduled tribe can bebelonging to Muslim religion. It is , therefore,apparent that instructions were received by the 15 Government of Maharashtra to issue castecertificates and the scheduled tribe candidate wasallowed to avail of the concessions and benefitsmeant for the scheduled tribe in education,employments and elections.”26.We therefore derive support from the judgmentsreferred the above for holding that a member of ‘Takankar’scheduled tribe can be from the Muslim religion. Muslim or IslamTakankar cannot be said to be a contrary entry. In this regard, oneDr. Shaikh M.W.H., President of TIDE Teachers’ Associationsolicited information from the Research Officer, Tribal Researchand Training Institution, State of Maharashtra and the informationwas supplied that ‘Muslim Takankar’ has not been deleted fromentry no. 38 just on the basis of religion. This information isreferred to in paragraph no. 12 of the impugned judgment. We,therefore, do not approve the submission of learned AGP in thisregard.27.It is submitted by learned AGP that the governmentresolution dated 19.07.2014 was issued inserting an entry of‘Takankar’ at serial no. 22 as Special Backward Class A categories.It is tried to argue that ‘Takankar’ falls into a special backwardclass – A category and not a scheduled tribe. This argument isrefuted by learned counsel Ms. Pradnya Talekar by referring to thejudgment of the co-ordinate bench in the matter of PandurangRangnath Chavan (supra). In that matter, the petitioner wasclaiming to be ‘Thakar’ belonging to the scheduled tribe asspecified by the President of India after consultation with the