High Court
Legal Reasoning
1 WP / 12492 / 2023IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 12492 OF 2023Sanjay S/o Prabhakar Thakur,Age : 54 years, Occu. : Service,R/o. M/p. Bhusawal, Dist. Jalgaon,At Present B-6 Room No.306, Paras,Co. Op. Hou. Soc. Ltd., Sunder Nagar,Mira Road (East), Dist. Thane.. Petitioner Versus1] State of Maharashtra, Through Secretary, Home Department, Mantralaya, Mumbai – 32.2] Executive Magistrate, Bhusawal, Dist. Jalgaon3] Scheduled Tribe Certificate Scrutiny Committee, Dhule, Through its Member Secretary4] Deputy Commissioner Transport Best Aagar Magathane Aagar, Boriwali (East), Municipal Corporation .. Respondents...Advocate for petitioner : Mr. Digambar B. ShindeAGP for the respondent – State : Mrs. V.N. Patil - JadhavAdvocate for the respondent no. 4 : Mr. Deepak S. Manorkar ... CORAM : MANGESH S. PATIL & PRAFULLA S. KHUBALKAR, JJ.DATE : 21 NOVEMBER 2024ORDER (MANGESH S. PATIL, J.) :The petitioner is challenging the judgment of therespondent – scrutiny committee in a proceeding under section 7 of the 2 WP / 12492 / 2023Maharashtra Act No. XXIII of 2001, whereby it has refused to validatehis ‘Thakur’ scheduled tribe certificate and directed it to be confiscatedand cancelled.2.We have heard both the sides finally at the stage ofadmission. 3.Learned advocate for the petitioner submits that theimpugned judgment is perverse and arbitrary, contrary record of thepersons who are not related to the petitioner by blood have beenreferred to and relied upon by the committee to discard the claim evenwhen, in reply to the vigilance enquiry report, he expressly denied tohave any relationship with these individuals. Even the committee hasnot assigned any reasons and dealt with this specific stand of denyingany blood relationship. As against it, admittedly, petitioner’s father’sschool record wherein he had taken admission on 11-03-1949specifically mentioned in the caste column that he was ‘Hindu Thakur’.The genuineness of this pre-constitutional record has neither beendisputed during the vigilance enquiry nor has it been doubted in theimpugned judgment. It has been discarded by the committee illegallyby referring to the contrary entries of two individuals with whom thepetitioner had denied to have any relationship. The observation of thecommittee that entry in the school record as ‘Hindu Thakur’ may notnecessarily mean whether it is from the forward community or a tribe 3 WP / 12492 / 2023having similar nomenclature finding place at serial no. 44 of theScheduled Tribe list or at serial no. 22 of the Nomadic Tribe list. Suchconclusion and inference of the committee is clearly perfunctory andbased on surmises and conjectures. He would submit that merelybecause he is the first person in the family seeking certificate of validity,the committee ought not to have taken any view as it has, by makingobservation that no blood relative from the family possesses certificateof validity. Learned advocate would further submit that contrary to thesettled law, the committee has even resorted to the affinity test illegallyand the order be quashed and set aside and the petitioner be directedto be issued with a certificate of validity. 4.Learned advocate for the petitioner would also submit thatsince the petitioner was insisting for completing the validationproceedings to protect his employment, he had to file a writ petition. Inspite of the directions of this Court, the committee did not decide theproposal within the stipulated time. A contempt proceeding had to betaken out and ultimately somehow, the committee has passed the finalorder under challenge, in all probability, entertaining a grudge againstthe petitioner.5.Per contra, the learned AGP would submit that theobservations and the conclusions of the committee are based onplausible appreciation of the facts, circumstances and evidence. There 4 WP / 12492 / 2023is no perversity or arbitrariness. In exercise of the powers under Article226 of the Constitution of India, this Court cannot substitute its views inplace of the views of the committee. She would submit that the veryfact that ‘Thakur’ is a common nomenclature finding place at serial no.44 of the Scheduled Tribe Order and serial no. 22 of the Nomadic TribeOrder, coupled with the fact that even forward communities also usethe same or similar surname, would demonstrate that an illegitimateattempt is being made by the petitioner to derive the benefit ofreservation. The school record of the petitioner’s relatives of the periodprior to 1949 described them as ‘Marathe Thakur’, ‘Hindu Thakur’ and‘Hindu Brahmabhat’ which is contrary to the petitioner’s claim. Even ifthose are the persons not related by blood, the petitioner had expresslymentioned in the statement recorded by the committee that none of hisblood relatives had performed inter-caste marriage. In thecircumstances, even the affinity test had to be applied, which is legallypermissible and the petitioner having failed to discharge the burdencast upon him under section 8 of the Maharashtra Act No. XXIII of2001, no fault can be found with the impugned order refusing tovalidate his tribe certificate.6.We have considered the rival submissions and perusedthe papers. 5 WP / 12492 / 20237.At the outset, it is necessary to emphasize that indeed thisCourt would be loath in causing interference in the order of the scrutinycommittee under challenge, in exercise of the powers under Article 226of the Constitution of India. It is only in case of perversity orarbitrariness that such power can be exercised. Again, by virtue ofsection 8 of the Maharashtra Act No. XXIII of 2001, burden would lie onthe claimant i.e. the petitioner to prove his claim of belonging to‘Thakur’ Scheduled Tribe (serial no. 44). However, it is also necessaryto bear in mind the law that it being a civil matter, the facts can beproved on preponderance of probability and strict proof is not required.8.As is rightly pointed out by the learned advocate for thepetitioner and even the committee does not dispute the fact that thepetitioner’s father’s school record of the year 1949 mentioned in thecaste column that he was ‘Hindu Thakur’. ‘Hindu’ being not a caste buta religion, its use as a prefix to ‘Thakur’, is redundant. This being apre-constitutional document, genuineness of which has not beendoubted, it would carry greater probative value in the light of AnandDhananjay Nalawade Vs. State of Maharashtra; 2014 (4) Mh.L.J. 77being a pre-constitutional document.9.True it is that nomenclature ‘Thakur’ can be found even inNomadic Tribe order at serial no. 22. As observed by the committee, 6 WP / 12492 / 2023there could be persons belonging to forward communities usingsurname ‘Thakur’. However, the impugned order does not mention thatthe persons from forward communities using surname ‘Thakur’ arefrom any particular caste. The people might be using ‘Thakur’ as asurname but that would not necessarily mean that they belong to aparticular caste. As against this, when petitioner’s father whileadmitting to the school, was so admitted by making necessary entry inthe school register in the caste column that he was ‘Thakur’, we find nojustifiable reason, rather, find total arbitrariness in the stand of thecommittee in discarding such entry merely because some persons fromforward communities use ‘Thakur’ as a surname.10.True it is that a tribe with a same nomenclature ‘Thakur’finds place at serial no. 22 of Nomadic Tribe Order but then, thepetitioner’s family was not to gain any advantage by claiming to bebelonging to ‘Thakur’ Scheduled Tribe serial no. 44 in stead of ‘Thakur’Nomadic Tribe serial no. 22, for the simple reason that even NomadicTribes get the benefit of reservation. The committee has overlookedthis aspect of the matter and has apparently discarded 1949 schoolrecord of petitioner’s father based on surmises and conjectures.11.Admittedly, in spite of the petitioner’s specific denial ofhaving any relationship with Narayan Govind Nikumbh andRamchandra Govind Nikumbh, the committee has not dealt with such 7 WP / 12492 / 2023denial and has used the entries in the school record of theseindividuals as ‘Marathe Thakur’, ‘Hindu Brahmabhat’ and ‘HinduThakur Brahmabhat’ as contrary to the petitioner’s claim. It wasimperative for the committee, to have demonstrated falsity in the standbeing taken by the petitioner in denying the relationship.12.Independently, even the committee itself in the impugnedjudgment while showing relationship of these two individuals with thepetitioner, has mentioned that these two individuals are cousin father inlaw of petitioner’s paternal aunt and further referred to the statement ofthe petitioner recorded during hearing before it stating that none of hisblood relatives had performed inter-caste marriage. In our consideredview, when the committee was unable to establish the relationship, itcould not have even used this stand of the petitioner to use thecontrary record of these individuals.13.Some emphasis has been laid even on the fact that thepetitioner while admitting to the school on 15-06-1974 was describedas ‘इतर मागासवग(cid:10)य’ i.e. ‘other backward class’. As can be understood, itwould be a generic description and was not to be inserted like that inthe caste column where there should have been reference to a specificcaste. Therefore, such entry cannot be regarded as contrary to thepetitioner’s claim. 8 WP / 12492 / 202314.Besides, as has been rightly pointed out by the learnedadvocate for the petitioner, even this school record was subsequentlycorrected under the provisions of the Secondary School Code, by theorder of the Education Officer. A copy of the order dated 06-06-1991addressed to the Headmaster of the concerned school by theEducation Officer (Secondary), Zilla Parishad, Jalgaon is placed onrecord at page no. 34 of the paperbook.15.Therefore, even for this reason, reliance of the committeeby referring to such petitioner’s school record which was subsequentlycorrected by following due process of law, will not stand the scrutiny oflaw.16.Obviously, affinity test has a limited role, as has beenexplained by the Supreme Court in Maharashtra Adiwasi ThakurJamat Swarakshan Samiti Vs. State of Maharashtra and others;2023 SCC Online SC 326. It is only when the committee feels that thedocumentary evidence produced by the claimant is not admissible orsufficient, that it can resort to such affinity test. When the committeewas not discarding the school record of the petitioner’s father of 1949,wherein he was described as ‘Hindu Thakur’, the approach of thecommittee even in reverting to the affinity test, is not legallysustainable.
Decision
9 WP / 12492 / 202317.In the result, the impugned order being perverse andarbitrary, requires to be quashed and set aside and reversed.18.Writ petition is allowed.19.The impugned order is quashed and set aside.20.The committee shall immediately issue certificate ofvalidity to the petitioner of ‘Thakur’ Scheduled Tribe (serial no. 44).21.The petitioner stands discharged from the undertakingfurnished to the Court dated 21-10-2023 filed pursuant to the orderdated 09-10-2023. [ PRAFULLA S. KHUBALKAR ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/