Full Judgment Text
(1) WP No. 4017/2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4017 OF 2018
Sandeep s/o Naryan Pawar
Age : 26 years, occ : service
R/o Jakhmathwadi,
Taluka Gangapur,
District Aurangabad.
Petitioner .
Versus
1. The State of Maharashtra
Department of Tribe Development
Mantralaya, Mumbai – 32.
Through its Secretary.
2. The Scheduled Tribe Certifcate
Scrutiny Committee, Aurangabad
Division, Aurangabad
Through its Member Secretary.
3. The Executive Engineer,
Maharashtra State Electricity
Distribution Company Ltd.,
Power House, Jubilee Park,
Aurangabad.
4. The Superintending Engineer
Maharashtra State Electricity
Distribution Company Ltd.,
Power, Jubilee Park, Aurangabad Respondents .
*
Mr. S.C. Yeramwar, Advocate for petitioner.
Mr. P.N. Kutti, A.G.P. for respondents No.1 and 2.
Mr. A.R. Salve, Advocate for respondents No.3 and 4.
*
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(2) WP No. 4017/2018
CORAM : SUNIL P. DESHMUKH &
ABHAY AHUJA, JJ.
th
Date : 10 March 2021.
JUDGMENT (Per Abhay Ahuja, J.)-
1. Heard. Rule. Rule made returnable forthwith.
With the consent of the learned Counsel appearing for the
parties, the petition is heard fnally.
2. By this petition under Article 226 of the
Constitution of India, Petitioner is challenging the decision
dated 11.04.2018 of the Respondent No. 2- Scheduled Tribe
Certifcate Scrutiny Committee, Aurangabad invalidating
the tribe claim of the petitioner belonging to “Thakur –
Scheduled Tribe” community.
3. Petitioner is a resident of Jakhmathawadi, Taluka
Gangapur, District Aurangabad and has been issued caste
certifcate dated 03.08.2006 by the Sub-Divisional Ofcer,
Vaijapur. Petitioner’s tribe claim was forwarded to the
Respondent – Committee for verifcation on 21.02.2011
through the Principal, Shishu Vikas Teachers’ Training
College, Aurangabad while he was studying in the said
college. Thereafter, petitioner was appointed as Electrical
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Assistant on 03.06.2013 with the Maharashtra State
Electricity Distribution Company Limited for a period of
three years against the post reserved for scheduled tribe
category on the condition to submit caste validity certifcate
during the contract period. Thereafter, by an order dated
27.06.2016 the services of the petitioner have been
continued and he has been absorbed on the post of
Technician w.e.f. 04.06.2016, immediately after the
completion of three years’ contract period.
4. It is submitted that though the petitioner’s
services were confrmed as Technician, however, since his
appointment was from reserved category, he was issued a
show-cause notice dated 30.09.2016 to submit caste
validity certifcate, failing which his services would be
terminated. Against the said show-cause notice, the
petitioner had fled writ petition, pursuant to which
respondent No.2 Committee was directed to decide the
tribe claim of the petitioner within a period of one year and
the petitioner was protected against coercive action by the
employer till then.
5. Petitioner submits that he is part of the family of
Laxman Pawar, who is his great grand-father and has
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submitted genealogy of family which is reproduced as
under :
As per Namuna ‘F” - Genealogy
Laxman Pawar (Great Grandfather)
|
|
------------------------|------------------------
Tukaram (Grandfather)
|
|
|
|---------------------|--------- |-----------------------|-----------------------|
Gitaram (Uncle) Narayan (father) Bhausaheb (uncle)
Shantabai
| | |
1. Subhash ---------- |------------ |
2. Sanju 1. Dnyaneshwar Sandeep |
3. Balu (validity (petitioner) - |-----------
holder) 1. Dattatray
(real brother) 2. Durga
3. Ashwini
6. It is submitted that the petitioner's father was
illiterate. However, his real brother Dnyaneshwar has been
issued a caste validity certifcate on 10.02.2011 after
following due procedure including conduct of vigilance
inquiry and personal hearing which is not disputed by the
respondents. It is submitted that the vigilance report of
Dnyaneshwar as well as letter dated 15.09.2010 submitted
by the Vigilance Ofcer in respect of the record of 1955
along with re-enquiry which was conducted, the Research
Ofcer and Deputy Superintendent of Police have given
remarks that they are fully in agreement with the
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observations made by the Vigilance Ofcer which according
to the petitioner ought to have been considered by the
Committee while deciding the petitioner’s tribe claim. He,
therefore, submits that in view of the decision of this Court
in the case of Apoorva Vinay Nichale vs Divisional
Caste Certifcate Scrutiny Committee No.1 and
others [ 2010 (6) Mh.L.J. 401] , frstly if the caste claim of
a blood relative, such as father, son, daughter, brother and
sister has been scrutinized and accepted, the caste claim of
the petitioner should be allowed without insisting on any
other proof and secondly if the relationship by blood is
established or not doubted and one such relative has been
confrmed as belonging to a particular caste, then there is
no reason why public time or money should be spent in the
Committee testing the same evidence and coming to the
same conclusion unless there is a fnding on evidence that
the validity of the certifcate of such relation has been
obtained by fraud.
7. Learned counsel for the petitioner submits that
the Committee has not disputed the relationship of the
brother or the existence of validity certifcate nor there is
any fnding as yet on evidence that the brother’s certifcate
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(6) WP No. 4017/2018
has been obtained by fraud. In all fairness in this context,
he submits that vide letter dated 11.04.2018, the Scrutiny
Committee has issued a show-cause notice to his real
brother Dnyaneshwar Narayan Pawar to show-cause in view
of a document that has been brought to its notice adverting
to that in respect of one of the blood relatives the
document refers to Maratha. He, however, submits that no
order or fnding cancelling the real brother’s caste validity
certifcate has been passed nor has there been any fnding
that such certifcate has been obtained by fraud. Therefore,
in view of the ratio in the case of Apoorva Nichale (supra),
once the claim of a blood relative is existing, the caste
claim of the applicant / petitioner should have been allowed
without insisting on any other proof. He further submits
that the school record of the petitioner, his brother and
validity holder Dnyaneshwar, cousins Durga, Ashwini,
Dattatraya as well as cousin Sanju / Sanjay, Balu show their
caste as “Thakur / Hindu Thakur”, to which there has hardly
been any serious objection by the Committee. He submits
that even the land document viz; Khasra Pahani Patrak in
respect of his grand-father viz. Tukaram Laxman Pawar
states that the land is allotted to a “tribal” by Hyderabad
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Bhudan Yagya Samiti on 25.09.1955 along with other tribals
like “Bhill”. He further submits that even the extract of the
death register of his grand-father Tukaram which indicates
date of death as 17.02.1981, shows the caste as “Hindu
Thakur”.
8. Learned counsel further submits that all the
aforesaid overwhelming evidence in favour of petitioner
while granting caste validity certifcate has been
unreasonably ignored by the Committee even though there
has been no overwriting or interpolation in the documents
submitted. He would submit that all the documents
submitted by the petitioner annexed to the petition contain
the caste as “Thakur / Hindu Thakur”.
9. According to him, the only objection that has
been raised is in respect of the cousin brothers vis;
Sanju/Sanjay and Balu which is contained in page 80 / 81
(internal page 6/7 of the impugned order) where it is stated
that in the column with respect to caste of Balu as being
“Marathi” pursuant to document of 1990, whereas pursuant
to document of 1988 he is being referred to as “Thakur”
and in respect of son Sanju as “Maratha” in one place and
Thakur in another place pursuant to document of 1986,
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although in the subsequent rows Sanju is referred to as
Sanjay has been shown as “Hindu” pursuant to the
document of 1984 and pursuant to a document of 1987 he
is again shown as “Thakur”, whereas all the other relatives
viz; Komal Subhash, Dattatraya, Jayashree Subhash, Nilesh
Balu are being referred to as “Thakur”. It is submitted that
with respect to school record of Subhash, the caste is
mentioned as ‘Hindu Thakur’; whereas the word “Thakhur”
is struck down and Thakur has been written. Also it is
submitted that the petitioner has stated regarding School
Record of Balu Gitaram Pawar and explained that Balu
st
Gitaram Pawar was admitted in 1 standard on 01.06.1988
wherein his caste is recorded as ‘Hindu Thakar’. So far as
Sanju Gitaram Pawar is concerned, the School Record
pertaining to Sanjay @ Sanju which seems that he had
nd
taken admission in 2 standard in Zilla Parishad Primary
School, Jakhmatha on 18.08.1986 wherein the caste is
recorded as Thakar, whereas in the School Admission
Register of Shri Gadge Maharaj Prathmik Ashram Shala,
Bhanashivre, the caste is recorded as ‘Hindu Thakur’ on
01.08.1987 whereas in School Record of Zilla Parishad
primary School, Malwadgaon, his caste is mentioned as
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Thakur on 03.07.1987. The Petitioner submits that, though
the Vigilance Ofcer has observed regarding Balu Gitaram
Pawar that School admission dated 02.07.1990 shows the
st
caste as Marathi, but earlier to that in 1 standard, he has
taken education from Shri Gadge Maharaj Prathmik Ashram
Shala, Bhanashivre, wherein caste is shown to be recorded
as Hindu Thakar in the year 1988 and hence the
subsequent entry as Marathi cannot be considered as
contra evidence and not only that, Marathi is not at all a
caste, but the language being spoken by Maharashtrian
people. It is submitted that due to taking admissions in
three Schools in the same year, being a tribal, the entries
have been conficted and might have been written by the
then School authority; hence those entries cannot be
considered as contra evidence. However, the petitioner has
collected Admission Form of Subhash Gitaram Pawar of the
year 1983, wherein there is no scoring or manipulation and
the caste is clearly written as Thakur. The entry application
of July 1983 in Subhash’s case where his mother tongue is
referred to as “Marathi”, is surprisingly being referred to as
a contra document.
10. Learned counsel for the petitioner further
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submits that pursuant to a vigilance inquiry where the
aforesaid contra issues have been harped upon, the
petitioner has given detailed reply dated 08.03.2018 to the
vigilance cell report, stating that Sanjay and Sanju are one
and the same person and the school record also indicates
him to be Hindu Thakur / Thakur and that the entry of being
Marathi being subsequent, cannot be considered as contra
evidence. He would submit that as can be seen from the
record, Thakur and Thakar are being used in the record and
the same is nothing but Thakur scheduled tribe as has been
settled by a number of judgments hitherto.
11. In reply to the vigilance cell with respect to the
document of grand-mother where her name is shown as
Sitabai Tukaram Thakur as relied upon by the petitioner, it is
submitted that though the surname of the petitioner is
Pawar, the surname of grand-mother is shown as Thakur by
considering that the family of the petitioner belongs to
Thakur scheduled tribe community. Therefore, grand-
mother being the close relative, as per the settled law, the
same should also have been considered in favour of the
petitioner and the same could not have been discarded as
settled by the Supreme Court in the case of Amruta Vijay
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More Vs State of Maharashtra and others (decided in
IA No. 3 of 2011 in Civil Appeal No. 7230 of 2011) and
in the case of Anita Atmaram Gaikwad vs State of
Maharashtra and others in Special Leave to Appeal
(Civil) No. 23081 / 2010 (Civil Appeal No. 3881/2013)
decided on 16.04.2013 .
12. Learned counsel for the petitioner submits that
without considering and correctly appreciating the
documentary evidence including certifcate of validity of
petitioner’s real brother, allotment letter issued by
Hyderabad Bhudan Yagya Samiti on 25.09.1955 in favour of
the grand-father and school record of close blood relatives
of the petitioner submitted before the Committee as well as
the submissions made on behalf of petitioner, the
Committee has invalidated the tribe claim of the petitioner
necessitating this writ petition.
13. He submits that the Committee has with respect
to the afnity test relied upon the remarks of the Research
Ofcer when he states that information seems to be
bookish knowledge when after visiting the residence of the
petitioner and recording the statement of petitioner’s real
brother Dnyaneshwar regarding primitive traits,
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characteristics, surnames of close blood relatives of
petitioner, god-goddesses, marriage system, types of
dances performed in the community, mother tongue,
festivals of the community, delivery system, dress system
in the community, even though same were answered in
detail correctly. Learned counsel submits that it has also
been held by the Supreme Court that the afnity test is not
a litmus test. He cites the decision of the Supreme Court in
the case of Anand Katole vs the Committee for
Scrutiny and Verifcation of tribe claim [ 2011 (6)
Mh.L.J. (SC) 919] . The Committee also appears to have
raised usual objection of area restriction which can easily
be met by the decision in the case of Jaywant Dilip Pawar
vs State of Maharashtra and others in Civil Appeal No.
2336/2011, decided on 08.03.2017 as the same has been
removed pursuant to the Presidential Order of Scheduled
Tribes (Amendment) Act, 1976.
14. Learned A.G.P. submits that the contra evidence
referred in the impugned decision, that in respect of Sanju /
Sanjay and Balu as well as Subhash as referred to above as
well as show-cause notice issued to the real brother
Dnyaneshwar in respect of his caste validity certifcate do
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not entitle the petitioner to the reliefs sought for in the
petition. Learned AGP purports to refer to that a show
cause notice has been issued to the real brother and has
also placed reliance upon the decision of the Scrutiny
Committee impugned in this petition. He submits that
therefore, the petition ought to be dismissed in view of the
Scrutiny Committee’s order dated 11.04.2018.
15. We have heard learned counsel for the parties
and with their assistance also perused the papers and
proceedings as well as various documents discussed above.
16. We note that the facts are largely undisputed.
However, it is the appreciation of those facts without having
regard to settled law which has brought the petitioner to
this Court. In the case of Apoorva Nichale (supra), it has
been observed to the efect that once there is a validity
certifcate in favour of a blood relative, no further inquiry is
required unless there is evidence of fraud that has been
established in relation to the certifcate that has been
obtained. Going by the said decision, it would not be
inappropriate to set aside the Committee decision dated
11.04.2018.
17. We also observe that all the other issues raised
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appear to be covered by various decisions of this Court
including the recent decision of this Court in the case of
Nikhil Anil Thakur Vs State of Maharashtra and
th
others (Writ Petition No. 11344 of 2019 ) dated 12
January 2021, wherein after summarising the entire law on
the subject in respect of Thakur scheduled tribe, this Court
has set aside the decision of the Scrutiny Committee.
18. In view of the elucidation in the case of Nikhil
Anil Thakur (supra), we deem it appropriate to exercise our
writ jurisdiction in the matter. The impugned order dated
th
11 April 2018 is unsustainable and deserves to be set
aside. Rule is made absolute in terms of prayer clause “B”.
th
19. Impugned order dated 11 April, 2018 passed by
Respondent No.2 – Scheduled Tribe Certifcate Scrutiny
Committee, Aurangabad is set aside. Respondent No.2 –
Committee shall forthwith issue validity certifcate to the
petitioner as belonging to “Thakur” scheduled tribe. The
certifcate would be subject to decision that would be taken
by the committee in the proceeding stated to have been
reopened of the validity holder relied upon by the petitioner.
In case, said certifcate is cancelled, then the petitioner
may not be in a position to claim any equities and it would
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be open for the Committee, if the Committee is of the view
that validity certifcate obtained by the validity holder is by
playing fraud, then the Committee may resort to action
against the petitioner as would be available in law.
( ABHAY AHUJA, J. ) ( SUNIL P. DESHMUKH, J. )
VD_Dhirde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4017 OF 2018
Sandeep s/o Naryan Pawar
Age : 26 years, occ : service
R/o Jakhmathwadi,
Taluka Gangapur,
District Aurangabad.
Petitioner .
Versus
1. The State of Maharashtra
Department of Tribe Development
Mantralaya, Mumbai – 32.
Through its Secretary.
2. The Scheduled Tribe Certifcate
Scrutiny Committee, Aurangabad
Division, Aurangabad
Through its Member Secretary.
3. The Executive Engineer,
Maharashtra State Electricity
Distribution Company Ltd.,
Power House, Jubilee Park,
Aurangabad.
4. The Superintending Engineer
Maharashtra State Electricity
Distribution Company Ltd.,
Power, Jubilee Park, Aurangabad Respondents .
*
Mr. S.C. Yeramwar, Advocate for petitioner.
Mr. P.N. Kutti, A.G.P. for respondents No.1 and 2.
Mr. A.R. Salve, Advocate for respondents No.3 and 4.
*
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(2) WP No. 4017/2018
CORAM : SUNIL P. DESHMUKH &
ABHAY AHUJA, JJ.
th
Date : 10 March 2021.
JUDGMENT (Per Abhay Ahuja, J.)-
1. Heard. Rule. Rule made returnable forthwith.
With the consent of the learned Counsel appearing for the
parties, the petition is heard fnally.
2. By this petition under Article 226 of the
Constitution of India, Petitioner is challenging the decision
dated 11.04.2018 of the Respondent No. 2- Scheduled Tribe
Certifcate Scrutiny Committee, Aurangabad invalidating
the tribe claim of the petitioner belonging to “Thakur –
Scheduled Tribe” community.
3. Petitioner is a resident of Jakhmathawadi, Taluka
Gangapur, District Aurangabad and has been issued caste
certifcate dated 03.08.2006 by the Sub-Divisional Ofcer,
Vaijapur. Petitioner’s tribe claim was forwarded to the
Respondent – Committee for verifcation on 21.02.2011
through the Principal, Shishu Vikas Teachers’ Training
College, Aurangabad while he was studying in the said
college. Thereafter, petitioner was appointed as Electrical
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Assistant on 03.06.2013 with the Maharashtra State
Electricity Distribution Company Limited for a period of
three years against the post reserved for scheduled tribe
category on the condition to submit caste validity certifcate
during the contract period. Thereafter, by an order dated
27.06.2016 the services of the petitioner have been
continued and he has been absorbed on the post of
Technician w.e.f. 04.06.2016, immediately after the
completion of three years’ contract period.
4. It is submitted that though the petitioner’s
services were confrmed as Technician, however, since his
appointment was from reserved category, he was issued a
show-cause notice dated 30.09.2016 to submit caste
validity certifcate, failing which his services would be
terminated. Against the said show-cause notice, the
petitioner had fled writ petition, pursuant to which
respondent No.2 Committee was directed to decide the
tribe claim of the petitioner within a period of one year and
the petitioner was protected against coercive action by the
employer till then.
5. Petitioner submits that he is part of the family of
Laxman Pawar, who is his great grand-father and has
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submitted genealogy of family which is reproduced as
under :
As per Namuna ‘F” - Genealogy
Laxman Pawar (Great Grandfather)
|
|
------------------------|------------------------
Tukaram (Grandfather)
|
|
|
|---------------------|--------- |-----------------------|-----------------------|
Gitaram (Uncle) Narayan (father) Bhausaheb (uncle)
Shantabai
| | |
1. Subhash ---------- |------------ |
2. Sanju 1. Dnyaneshwar Sandeep |
3. Balu (validity (petitioner) - |-----------
holder) 1. Dattatray
(real brother) 2. Durga
3. Ashwini
6. It is submitted that the petitioner's father was
illiterate. However, his real brother Dnyaneshwar has been
issued a caste validity certifcate on 10.02.2011 after
following due procedure including conduct of vigilance
inquiry and personal hearing which is not disputed by the
respondents. It is submitted that the vigilance report of
Dnyaneshwar as well as letter dated 15.09.2010 submitted
by the Vigilance Ofcer in respect of the record of 1955
along with re-enquiry which was conducted, the Research
Ofcer and Deputy Superintendent of Police have given
remarks that they are fully in agreement with the
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observations made by the Vigilance Ofcer which according
to the petitioner ought to have been considered by the
Committee while deciding the petitioner’s tribe claim. He,
therefore, submits that in view of the decision of this Court
in the case of Apoorva Vinay Nichale vs Divisional
Caste Certifcate Scrutiny Committee No.1 and
others [ 2010 (6) Mh.L.J. 401] , frstly if the caste claim of
a blood relative, such as father, son, daughter, brother and
sister has been scrutinized and accepted, the caste claim of
the petitioner should be allowed without insisting on any
other proof and secondly if the relationship by blood is
established or not doubted and one such relative has been
confrmed as belonging to a particular caste, then there is
no reason why public time or money should be spent in the
Committee testing the same evidence and coming to the
same conclusion unless there is a fnding on evidence that
the validity of the certifcate of such relation has been
obtained by fraud.
7. Learned counsel for the petitioner submits that
the Committee has not disputed the relationship of the
brother or the existence of validity certifcate nor there is
any fnding as yet on evidence that the brother’s certifcate
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has been obtained by fraud. In all fairness in this context,
he submits that vide letter dated 11.04.2018, the Scrutiny
Committee has issued a show-cause notice to his real
brother Dnyaneshwar Narayan Pawar to show-cause in view
of a document that has been brought to its notice adverting
to that in respect of one of the blood relatives the
document refers to Maratha. He, however, submits that no
order or fnding cancelling the real brother’s caste validity
certifcate has been passed nor has there been any fnding
that such certifcate has been obtained by fraud. Therefore,
in view of the ratio in the case of Apoorva Nichale (supra),
once the claim of a blood relative is existing, the caste
claim of the applicant / petitioner should have been allowed
without insisting on any other proof. He further submits
that the school record of the petitioner, his brother and
validity holder Dnyaneshwar, cousins Durga, Ashwini,
Dattatraya as well as cousin Sanju / Sanjay, Balu show their
caste as “Thakur / Hindu Thakur”, to which there has hardly
been any serious objection by the Committee. He submits
that even the land document viz; Khasra Pahani Patrak in
respect of his grand-father viz. Tukaram Laxman Pawar
states that the land is allotted to a “tribal” by Hyderabad
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Bhudan Yagya Samiti on 25.09.1955 along with other tribals
like “Bhill”. He further submits that even the extract of the
death register of his grand-father Tukaram which indicates
date of death as 17.02.1981, shows the caste as “Hindu
Thakur”.
8. Learned counsel further submits that all the
aforesaid overwhelming evidence in favour of petitioner
while granting caste validity certifcate has been
unreasonably ignored by the Committee even though there
has been no overwriting or interpolation in the documents
submitted. He would submit that all the documents
submitted by the petitioner annexed to the petition contain
the caste as “Thakur / Hindu Thakur”.
9. According to him, the only objection that has
been raised is in respect of the cousin brothers vis;
Sanju/Sanjay and Balu which is contained in page 80 / 81
(internal page 6/7 of the impugned order) where it is stated
that in the column with respect to caste of Balu as being
“Marathi” pursuant to document of 1990, whereas pursuant
to document of 1988 he is being referred to as “Thakur”
and in respect of son Sanju as “Maratha” in one place and
Thakur in another place pursuant to document of 1986,
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although in the subsequent rows Sanju is referred to as
Sanjay has been shown as “Hindu” pursuant to the
document of 1984 and pursuant to a document of 1987 he
is again shown as “Thakur”, whereas all the other relatives
viz; Komal Subhash, Dattatraya, Jayashree Subhash, Nilesh
Balu are being referred to as “Thakur”. It is submitted that
with respect to school record of Subhash, the caste is
mentioned as ‘Hindu Thakur’; whereas the word “Thakhur”
is struck down and Thakur has been written. Also it is
submitted that the petitioner has stated regarding School
Record of Balu Gitaram Pawar and explained that Balu
st
Gitaram Pawar was admitted in 1 standard on 01.06.1988
wherein his caste is recorded as ‘Hindu Thakar’. So far as
Sanju Gitaram Pawar is concerned, the School Record
pertaining to Sanjay @ Sanju which seems that he had
nd
taken admission in 2 standard in Zilla Parishad Primary
School, Jakhmatha on 18.08.1986 wherein the caste is
recorded as Thakar, whereas in the School Admission
Register of Shri Gadge Maharaj Prathmik Ashram Shala,
Bhanashivre, the caste is recorded as ‘Hindu Thakur’ on
01.08.1987 whereas in School Record of Zilla Parishad
primary School, Malwadgaon, his caste is mentioned as
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Thakur on 03.07.1987. The Petitioner submits that, though
the Vigilance Ofcer has observed regarding Balu Gitaram
Pawar that School admission dated 02.07.1990 shows the
st
caste as Marathi, but earlier to that in 1 standard, he has
taken education from Shri Gadge Maharaj Prathmik Ashram
Shala, Bhanashivre, wherein caste is shown to be recorded
as Hindu Thakar in the year 1988 and hence the
subsequent entry as Marathi cannot be considered as
contra evidence and not only that, Marathi is not at all a
caste, but the language being spoken by Maharashtrian
people. It is submitted that due to taking admissions in
three Schools in the same year, being a tribal, the entries
have been conficted and might have been written by the
then School authority; hence those entries cannot be
considered as contra evidence. However, the petitioner has
collected Admission Form of Subhash Gitaram Pawar of the
year 1983, wherein there is no scoring or manipulation and
the caste is clearly written as Thakur. The entry application
of July 1983 in Subhash’s case where his mother tongue is
referred to as “Marathi”, is surprisingly being referred to as
a contra document.
10. Learned counsel for the petitioner further
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submits that pursuant to a vigilance inquiry where the
aforesaid contra issues have been harped upon, the
petitioner has given detailed reply dated 08.03.2018 to the
vigilance cell report, stating that Sanjay and Sanju are one
and the same person and the school record also indicates
him to be Hindu Thakur / Thakur and that the entry of being
Marathi being subsequent, cannot be considered as contra
evidence. He would submit that as can be seen from the
record, Thakur and Thakar are being used in the record and
the same is nothing but Thakur scheduled tribe as has been
settled by a number of judgments hitherto.
11. In reply to the vigilance cell with respect to the
document of grand-mother where her name is shown as
Sitabai Tukaram Thakur as relied upon by the petitioner, it is
submitted that though the surname of the petitioner is
Pawar, the surname of grand-mother is shown as Thakur by
considering that the family of the petitioner belongs to
Thakur scheduled tribe community. Therefore, grand-
mother being the close relative, as per the settled law, the
same should also have been considered in favour of the
petitioner and the same could not have been discarded as
settled by the Supreme Court in the case of Amruta Vijay
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(11) WP No. 4017/2018
More Vs State of Maharashtra and others (decided in
IA No. 3 of 2011 in Civil Appeal No. 7230 of 2011) and
in the case of Anita Atmaram Gaikwad vs State of
Maharashtra and others in Special Leave to Appeal
(Civil) No. 23081 / 2010 (Civil Appeal No. 3881/2013)
decided on 16.04.2013 .
12. Learned counsel for the petitioner submits that
without considering and correctly appreciating the
documentary evidence including certifcate of validity of
petitioner’s real brother, allotment letter issued by
Hyderabad Bhudan Yagya Samiti on 25.09.1955 in favour of
the grand-father and school record of close blood relatives
of the petitioner submitted before the Committee as well as
the submissions made on behalf of petitioner, the
Committee has invalidated the tribe claim of the petitioner
necessitating this writ petition.
13. He submits that the Committee has with respect
to the afnity test relied upon the remarks of the Research
Ofcer when he states that information seems to be
bookish knowledge when after visiting the residence of the
petitioner and recording the statement of petitioner’s real
brother Dnyaneshwar regarding primitive traits,
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(12) WP No. 4017/2018
characteristics, surnames of close blood relatives of
petitioner, god-goddesses, marriage system, types of
dances performed in the community, mother tongue,
festivals of the community, delivery system, dress system
in the community, even though same were answered in
detail correctly. Learned counsel submits that it has also
been held by the Supreme Court that the afnity test is not
a litmus test. He cites the decision of the Supreme Court in
the case of Anand Katole vs the Committee for
Scrutiny and Verifcation of tribe claim [ 2011 (6)
Mh.L.J. (SC) 919] . The Committee also appears to have
raised usual objection of area restriction which can easily
be met by the decision in the case of Jaywant Dilip Pawar
vs State of Maharashtra and others in Civil Appeal No.
2336/2011, decided on 08.03.2017 as the same has been
removed pursuant to the Presidential Order of Scheduled
Tribes (Amendment) Act, 1976.
14. Learned A.G.P. submits that the contra evidence
referred in the impugned decision, that in respect of Sanju /
Sanjay and Balu as well as Subhash as referred to above as
well as show-cause notice issued to the real brother
Dnyaneshwar in respect of his caste validity certifcate do
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(13) WP No. 4017/2018
not entitle the petitioner to the reliefs sought for in the
petition. Learned AGP purports to refer to that a show
cause notice has been issued to the real brother and has
also placed reliance upon the decision of the Scrutiny
Committee impugned in this petition. He submits that
therefore, the petition ought to be dismissed in view of the
Scrutiny Committee’s order dated 11.04.2018.
15. We have heard learned counsel for the parties
and with their assistance also perused the papers and
proceedings as well as various documents discussed above.
16. We note that the facts are largely undisputed.
However, it is the appreciation of those facts without having
regard to settled law which has brought the petitioner to
this Court. In the case of Apoorva Nichale (supra), it has
been observed to the efect that once there is a validity
certifcate in favour of a blood relative, no further inquiry is
required unless there is evidence of fraud that has been
established in relation to the certifcate that has been
obtained. Going by the said decision, it would not be
inappropriate to set aside the Committee decision dated
11.04.2018.
17. We also observe that all the other issues raised
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appear to be covered by various decisions of this Court
including the recent decision of this Court in the case of
Nikhil Anil Thakur Vs State of Maharashtra and
th
others (Writ Petition No. 11344 of 2019 ) dated 12
January 2021, wherein after summarising the entire law on
the subject in respect of Thakur scheduled tribe, this Court
has set aside the decision of the Scrutiny Committee.
18. In view of the elucidation in the case of Nikhil
Anil Thakur (supra), we deem it appropriate to exercise our
writ jurisdiction in the matter. The impugned order dated
th
11 April 2018 is unsustainable and deserves to be set
aside. Rule is made absolute in terms of prayer clause “B”.
th
19. Impugned order dated 11 April, 2018 passed by
Respondent No.2 – Scheduled Tribe Certifcate Scrutiny
Committee, Aurangabad is set aside. Respondent No.2 –
Committee shall forthwith issue validity certifcate to the
petitioner as belonging to “Thakur” scheduled tribe. The
certifcate would be subject to decision that would be taken
by the committee in the proceeding stated to have been
reopened of the validity holder relied upon by the petitioner.
In case, said certifcate is cancelled, then the petitioner
may not be in a position to claim any equities and it would
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be open for the Committee, if the Committee is of the view
that validity certifcate obtained by the validity holder is by
playing fraud, then the Committee may resort to action
against the petitioner as would be available in law.
( ABHAY AHUJA, J. ) ( SUNIL P. DESHMUKH, J. )
VD_Dhirde
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